TMI Blog2015 (3) TMI 5X X X X Extracts X X X X X X X X Extracts X X X X ..... by the assessee against the order dated 06.11.2012 of the CIT(A)-IV, New Delhi relevant to the assessment year 2009-10. 2. The grounds of appeal are as follows:- 1. That the order of the ld AO, as well as CIT(A) is bad in law and against the facts of the case. 2. That the ld AO as well CIT(A) was not justified in disallowing export commission of ₹ 2,82,54,644/-. 3. The assessee craves the right to add, delete, modify any one or more of the grounds of appeal at the time of hearing. 3. The sole ground of appeal. Apropos disallowance of export commission to the tune of ₹ 2,82,54,644/-. 4. Brief facts of the case are that the assessee company is engaged in the business of manufacturing of Steel Ingots, Bar Etc and filed the of income for the Assessment Year 2009-10 before DCIT Circle-1(1), New Delhi declaring loss of ₹ 77,92,270/- on 29.09.2009. The AO, vide order under section 143(3) of the Income Tax Act, made certain addition/ disallowances and assessed the income at ₹ 2,04,62,374/- vide order dated 05.12.2011 and disallowed the commission paid on export commission of ₹ 2,82,54,644/- for non deduction of TDS by the assessee to non-re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the other hand, the ld DR, supported the order of the ld CIT(A) and contended that Hon'ble High Court of Delhi has held in Havell's case ITA No. 55/De/2012 dated 21st May 2012 that since the source of income is in India, then TDS has to be deducted. Therefore according to the ld DR, the said ratio of the judgment of the jurisdiction High court is squarely applicable to the issue in hand and therefore she does not want us to disturb the impugned order. 8. We have heard both the parties and perused the records and gone through the case laws cited before us. We find that the assessee company is manufacturing steel ingots, bars etc for domestic market as well as international market. It has paid commission of ₹ 2,82,54,644/- to non-residents on export sales of ₹ 126 crores for the year under consideration. The authorities below have held that assessee was obliged to deduct TDS on the commission paid to non-residents and in the absence thereof, the expenditure claimed is not eligible for deduction on account of provision contained in Section 40(a)(i) of the Act. We find identical issue had came up before the co-ordinate Bench in the case of the assessee for the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts in various countries approved to procure the orders against which the assessee supplies the goods to the foreign buyers. The assessee has submitted details of services rendered by the foreign agents. The assessee has also submitted bill-wise details of exports made and commission paid, along with copy of account of foreign agents giving particulars of the payments made to them against export invoices as well as commission accrued thereon, copy of payment vouchers and outward remittance advice issued by the Bank showing that the remittance advice issued by the Bank showing that the remittance was made directly by the Bank to the foreign agent in foreign exchange etc. It is submitted by the ld AR that since the above exports commission relates to services rendered outside India and payment is made outside India, there is no income chargeable to tax in India in the hands of foreign agents and hence the provisions of Section 195 of the Act was not applicable. Further, it is argued by the ld Ar that the commission agents do not require any professional or technical degree and hence the commission paid to them is not in the nature of fees for technical services as alleged by the AO. F ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sidering the facts and circumstances of the case, the statutory provisions and respectfully following the settled case laws on the matter. I find that the impugned addition of ₹ 2,90,66,440/- is not sustainable on facts or in law. To sum up, the addition of ₹ 3,67,19,237/- (i.e. ₹ 76,52.798/- plus ₹ 2,90,66,440/-) is deleted. 6. On perusal of the above reproduced portion of the conclusion as drawn by the CIT(A), we find that he has considered each and every aspect of the matter in detail before arriving at the finding. Neither any flaw nor infirmity has been pointed out nor noticed. Moreover, the basis and reasoning as given by the CIT(A) are otherwise found to be just and appropriate. In view of the facts and circumstances and material on record, we are of the considered opinion that conclusion as drawn by the CIT(A) in this case is just and appropriate, which calls for no interference at our ends. As such, while concurring with the finding as arrived at by the CIT(A), we uphold his order and dismiss the appeal of the Revenue being de void of any merits. 9. Having regard to the aforesaid decision, we are of the opinion that the assessee was not obli ..... X X X X Extracts X X X X X X X X Extracts X X X X
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