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2015 (12) TMI 1323 - AT - Income TaxClean development mechanism (CDM) receipts - whether are not subsidies but trading receipt? - Held that:- Commissioner of Income Tax (Appeals) allowed the claim of the assessee holding that clean development mechanism would constitute capital receipt in the hands of the assessee following the decision of the co-ordinate Bench in assessee's own case for the assessment year 2009-10. Thus we hold that carbon credit receipts are capital in nature and thus, we uphold the order of the Commissioner of Income Tax (Appeals) and reject the grounds raised by the Revenue on this issue. - Decided in favour of assessee. Foreign commission payment - TDS liability u/s 195 - whether made only for the purpose of managing sales of the assessee outside India by means of engaging agents and as per the provisions of section 9(1)(vii) of the Act any payment made for the purpose of rendering managerial services outside India shall be considered only as payment made for fees for technical services? - Held that:- Supreme Court in the case of GE India Technology Centre Private Limited Vs CIT (2010 (9) TMI 7 - SUPREME COURT OF INDIA) wherein held that the assessee is not liable to deduct TDS when nonresident provided service outside India. It was held that when the services are provided outside India, the commission payments made to non-resident cannot be treated as income deemed to accrue or arise in India, therefore the provisions of section 195 has no application. It is clear that in order to invoke the provisions of Section 195 of the Income tax Act, the income should be chargeable to tax in India. Here, the commission payments to non-resident in the case of the appellant are not chargeable to tax in India and therefore the provisions of Section 195 are not applicable. In the case of appellant, the facts are similar and the decision of the Hon'ble Supreme Court and also the jurisdictional Tribunal decision referred to above is squarely applicable. Hence, the Assessing Officer is correctly directed to delete the addition made u/s 40(a)(ia} for non-deduction of TDS in respect of commission payments to non-resident.- Decided in favour of assessee. Entitlement for deduction under section 80IA on windmills - Held that:- All the business undertakings are wind mills and they have claimed the benefit of deduction under Section 80IA of the Income Tax Act for the assessment years in question and for the subsequent years as well. Having exercised their option and their losses have been set off already against other income of the business enterprise, the assessee in this appeal falls within the parameters of Section 80IA of the Income Tax Act. See Velayudhasamy Spinning Mills (2010 (3) TMI 860 - Madras High Court ) - Decided in favour of the assessee
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