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2018 (5) TMI 1844 - AT - Income TaxTDS u/s 195 - Fees for technical services - period of stay in India of trainees - assessee used to get trainers from various countries to visit various places in India for providing necessary training - whether any of the trainers were in India for more than 90 days during the relevant year? - Make Available Test - HELD THAT:- A perusal of the assessment order does not show of any of the trainers being in India for more than 90 days. The exact number of days has not been produced by the A.R to establish that the number of days each specific trainer has been in India. Perusal of the agreement between the assessee and its parent organization has also not been placed before us to know whether any technical services have actually been provided and whether the same has passed ‘Make Available Test”. In the interest of justice, this issue is restored to the file of AO for readjudication. The assessee shall be at liberty to prove before AO that the days the trainers were in India were less than 90 days and that what has been provided is not fees for technical services. Assessee’s appeal are partly allowed for statistical purposes. TDS u/s 194H - commission payment - Agreement between the assessee and M/s.TQ Services, Hyderabad - HELD THAT:- A perusal of the agreement between the assessee and M/s.TQ Services, Hyderabad, it was clearly shown that clause 6.6 shows the Methodology of demarcation of the fees collected by M/s.TQ Services. The assessee is to issue invoices to M/s.TQ Services for sharing of income, which is provided in Schedule-A. Thus, clearly the payments made by the assessee to M/s.TQ Services is in no way commission payment, but is in fact, the share of profit with M/s.TQ Services and consequently, the provisions of the section 194H does not apply. Consequently, the disallowance made by ld. Assessing Officer stands deleted. - Decided in favour of assessee.
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