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2020 (1) TMI 650 - AT - Income TaxTDS u/s 195 - reimbursement of demurrage expenses made to non-residents including group entities of the Appellant - HELD THAT:- As decided in DEMPO & CO. PVT. LTD., THE COMMISSIONER OF INCOME TAX [2016 (2) TMI 308 - BOMBAY HIGH COURT] it is the recipient's position and the perspective in which the recipient's income would be taxed will have to be borne in mind. The non-resident shipping company in respect of it's income would be in a position to rely upon section 44B and consequently section 172. However, we do not see how there is an obligation to deduct tax at source on the resident assessee/Indian company before us. While computing the income of the non-resident Indian / foreign company, assistance can be derived by such non-residents from section 44B if they are in shipping business. It would also be in a position to rely upon section 172 but the responsibility of the person making payment to a non-resident in sub-section (1) of section 195 cannot be avoided in the manner set out in other cases. The scheme as above operates only to cases covered by section 172 of the IT Act and none else. We see no infirmity in the order passed by the Ld. CIT(A) in deleting the demurrage charges relating to A.Y. 2012-13 as these expenses were never debited to Profit & Loss account for the assessment year under consideration i.e., A.Y. 2013-14 nor claimed as deduction from total income, in such circumstances there cannot be any disallowance u/s. 40(a)(i) of the Act. Thus, we sustain the order of the Ld.CIT(A) and reject Ground Nos. 1 & 2 of the grounds of appeal of the revenue. TDS u/s 192 - reimbursement of salary cost which was on account of availing personnel services from its AE’s who were sent to India at secondment - HELD THAT:- As decided in own case [2019 (10) TMI 972 - ITAT MUMBAI] employees who were serving in India or deputed in India had already deducted tax at source u/s 192 of the Act. The provision of TDS is not applicable on reimbursement of deputation expenses to foreign AE. The CIT(A) has relied upon the decision in the case of Burt Hill Design (P) Ltd. Vs. DDIT (IT) [2017 (4) TMI 49 - ITAT AHMEDABAD] he facts are not distinguishable at this stage. No law contrary to the law relied by the Ld. Representative of the assessee has been produced before us. In view of the said circumstances, we are of the view that the CIT(A) has decided the matter of controversy judiciously and correctly which is not liable to be interfere with at this appellate stage.
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