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2018 (10) TMI 1714 - AT - Income TaxTDS u/s 195 - Disallowance of the commission paid to non-resident agents to the services rendered outside India - HELD THAT:- The assessee is not liable to deduct tax on the commission paid to the non-resident. However, it appears that no details and evidences have been provided before the authorities below by the assessee in respect of payment mentioned in Sl.No.9, 13, 15 & 16 in order to establish that the said agents have not provided services in India or they have no business connection or permanent establishment in India. We, therefore, for the ends of justice set aside this part of the order to the file of the AO to verify the said aspect considering the evidences to be adduced by the assessee in this respect. We make it clear that the assessee be given a reasonable opportunity of hearing positively by the Ld. Assessing Officer while adjudicating the matter and to pass orders in accordance with law. Addition towards suppression of sales in transit - HELD THAT:- As gone through the order passed by the coordinate bench following the order passed by the Ld. ITAT in assessee’s own case for the AY 2004-05 to AY 2010-11 it is held Section 26 of the Act provides that unless otherwise agreed, the goods remain at the seller risk. In case of FOB contracts the goods are delivered free on board the ship once the seller has placed the goods safely on board at his cost and thereby handed over the possession of the goods to the ship in transfer of the Bill of Landing or other document, the responsibility of the seller ceases on the delivery of the goods to the buyer is complete - sale was executed under FOB as per which the risk was transferred from the seller to the buyer when the goods put on ship or rail. In view of above, we are not inclined with the decision of the CIT(A) and we are of the view that when the sale was executed under FOB, CIF terms as per which the risk was transferred from the seller to the buyer when the goods put on ship or rail. Therefore, the appeal of the assessee is allowed on this issue. Disallowance of depreciation on no compete fees - HELD THAT:- After considering the facts and the detailed findings along with various judicial pronouncements elaborated in the order of the CIT(A), we consider that the non-compete fee paid by the assessee to Mr. Patel is a capital expenditure and the assessee has acquired an intangible right which is depreciable and depreciation claimed is allowable under section 32(1)(ii) of the Act. Therefore, we do not find any reason to interfere in the decision of the Ld. CIT(A). Accordingly, the appeal of the revenue is dismissed. Deduct tax on the commission paid to the non-resident - HELD THAT:- no details and evidences have been provided before the authorities below by the assessee in respect of payment mentioned in Sl.Nos.2,6,7,9,10,15,16,21 to 24 28 and 31 in order to establish that the said agents have not provided services in India or they have no business connection or permanent establishment in India. We, therefore, for the ends of justice set aside this part of the order to the file of the AO to verify the said aspect considering the evidences to be adduced by the assessee in this respect. We make it clear that the assessee be given a reasonable opportunity of hearing positively by the AO while adjudicating the matter and to pass orders in accordance with law. In the result, this ground of assessee’s appeal is allowed for statistical purposes.
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