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TMI Blog2013 (11) TMI 1368X X X X Extracts X X X X X X X X Extracts X X X X ..... M/s Stratum Resources as marketing agent for South East Asian countries. M/s Stratum Resources has to study the market situation in South East Asia for the product manufactured by the assessee and they have to market the product of the assessee in those countries. The assessee has also entered into a similar agreement with Tionale Enterprises Pte Ltd, Singapore. However, the CIT(A) found that Tionale Enterprises Pte Ltd is only a marketing agency, therefore, tax need not be deducted on the payments made to them. However, in respect of M/s Stratum Resources, the CIT(A) found that it is consultancy charges, therefore, tax has to be deducted. Accordingly, the CIT(A) confirmed the disallowance made by the assessing officer. According to the ld. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... esentative, sub sections (3) and (4) of section 201 which were inserted by Finance Act, 2009 with effect from 01-04-2010 cannot be applied retrospectively for the year under consideration. According to the ld. representative, the retrospective operation is not practical and possible. The ld. representative placed his reliance on the Special Bench decision of the Delhi Bench of this Tribunal in New Skies Satellites N.V. v. Asstt. DIT (Intl. Taxation) [2009] 121 ITD 1. According to the ld. representative, the transaction in this case refers to payment of commission. Section 195 of the Act requires deduction of tax while making payment to non resident Indian. According to the ld. representative, in this case, the payment made to non resident I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mitted that the assessing officer passed the impugned order before 31-03-2011. Proviso to section 201(3) of the Act enables the assessing officer to pass order before 31-03-2011 in respect of financial year commencing on or before 01-04-2007. Therefore, the order passed by the assessing officer is within the period provided in section 201(3) of the Act. Therefore, there is no question of any impossibility as claimed by the assessee. 5. We have considered the rival submissions on either side and also perused the material available on record. We have also carefully gone through the copy of the agreement said to be entered into between the assessee and the foreign party. The CIT(A) also has reproduced copy of the agreement on pages 24 and 25 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as reported in SCC; SCALE and KLJ. Though in the written submission, the assessee referred these case laws, the copies of the judgments were not filed before us. The registry of this Tribunal does not have copies of SCC; SCALE; and KLJ. Therefore, this Tribunal do not have any occasion to go through the judgment of the above case laws referred to by the ld. representative for the assessee. However, the sum and substance of the judgments as demonstrated by the ld. representative for the assessee is that the impugned agreement has to be viewed by substance of the transaction and not by the nomenclature. In this case, the substance of the agreement is for consulting the foreign party for marketing the product of the assessee in South East Asia ..... X X X X Extracts X X X X X X X X Extracts X X X X
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