2019 (5) TMI 2010

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....als, the revenue has raised the identical grounds of appeal except variation of figures of disallowance/addition under section 40(a)(i) of the Act, therefore, both the appeals were clubbed, heard and are decided by common order. With the consent of parties, the appeal for Assessment Year 2010-11 is treated as lead case. The assessee has raised the following grounds of appeal: "1. On the facts and circumstances of the case and in-law, the learned CIT(Appeal) erred in deleting the addition made by the AO on export commission of Rs. 978,66,610/- paid to non-resident agents u/s 40(a)(i) of the Act on the ground that payments to such non-resident agents were liable to tax and the assessee has failed to deduct tax thereon." 2. T....

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.... India entered into Double Taxation Avoidance Agreement (DTAA). The assessee was show-caused as to why the provision of section 195 of the Act should not be made applicable as the parties to whom the commissions were paid were rendering the services in the nature of consultancy, technical/customer relationship services. The assessee filed its reply. The assessee stated that none of the parties to whom the assessee has remitted commission payment/paid commission payment had any Permanent Establishment in India. Therefore, they are not liable to tax in India. The explanation furnished by assessee was not accepted by Assessing Officer holding that as per Explanation to section 9(2) of Finance Act, 2007, the income of non-resident shall be deem....

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....ally mentioned in the agreement. Therefore, the finding of Assessing Officer that services provided by commission agent falls in the category of managerial or consultancy as defined by Explanation 2 to section 9(i)(vii). Being aggrieved, the revenue has filed the present appeal before us. 7. As noted above, the ld. DR for the revenue relied upon the order of Assessing Officer and the ld. AR of the assessee submitted that the commission was paid outside India or services rendered by the commission agent outside India and also relied on the decision of Hon'ble Bombay High Court in CIT vs. Gujarat Reclaim and Rubber Products Ltd.(supra). 8. We have considered the submission of both the parties and have gone through the orders of authorit....