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TMI Blog2015 (10) TMI 532X X X X Extracts X X X X X X X X Extracts X X X X ..... easons that the Assessing Officer failed to examine the relevant documents/agreement along with the correspondence and other evidences to determine whether the income is chargeable under the provisions of sec.9(1)(vii) of the Act read with relevant provisions of the DTAA and the Assessing Officer has not verified the purchase orders along with correspondences with M/s. Tarun Anvil Corporation, USA. 3. The ld. AR submitted that the Commissioner of Incometax erred in his finding that the assessment order dated 27-03- 2013 passed under section 143 (3) by the Income-tax Officer, Ward 2 (3), Coimbatore was erroneous and prejudicial to the interests of Revenue. The ld. AR further submitted that Commissioner of Income-tax erred in overlooking the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in which she had specifically called for explanation from the assessee as to why tax was not deducted at source on overseas commission payment of Rs. 54,93,841. The ld. AR further submitted that the Commissioner of Income-tax also failed to note that in the said letter dated 25- 10-2012 the assessee had been called upon to produce the agreements, terms and conditions agreed upon with the overseas client(s) and also as to how the assessee had arrived at the income from exchange rate fluctuation. According to the assessee's Counsel, the Commissioner of Income-tax further failed to note that in the said letter dated 25-10-2012, the Assessing Officer had specifically called upon the assessee to state whether tax was deducted at source on dyeing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pplicable on these payments. 3.4. Further, the ld. AR submitted that the Commissioner of Income-tax failed to note that in the impugned assessment order dated 27-03-2013, the Assessing Officer had in para 3 specifically referred to the order dated 6-3-2013 passed by the Income-tax Officer (TOS) about the non-applicability of TDS provisions in respect of the payments made to M/s. Anvil Corporation USA and then only passed the impugned assessment order. Accordingly, he submitted that the CIT has thus absolutely erred in his finding that the payments made to M/s. Tarun of Anvil Corporation and the labour charges paid locally were allowed by the Assessing Officer without calling for and verifying the facts and circumstances of the case, the ag ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... les of natural justice or without application of mind. (iii) The order passed by the Assessing Officer is a stereotype order which simply accepts what the assessee has stated in his return or where he fails to make the requisite enquiries or examine the genuineness of the claim which is called for in the circumstances of the case. Thus, he submitted that there was no error in the order of the AO, as the AO carried out detailed enquiry before coming to the conclusion that the provisions of TDS are not applicable to the payment made to M/s. Tarun Anvil Corporation, USA towards commission. He has also drew our attention to the order passed by the ITO, TDS, Ward-I(1), Coimbatore dated 6.3.2013, wherein it was observed in similar circumstances ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he order of the ITO, Ward-I(1), Coimbatore dated 6.3.2013, the Assessing Officer came to the conclusion that the assessee is not liable for deduction of TDS in respect of payment of commission to M/s. Tarun Anvil Corporation, USA and he has not carried out any independent enquiry. The order of the ITO, Coimbatore has no basis on which he came to the conclusion that the payment made to M/s. Tarun Anvil Corporation, is not liable for TDS. Being so, the CIT assumed jurisdiction u/s.263 of the Act, to see whether the payment made to M/s. Tarun Anvil Corporation, USA is liable for TDS or not. The assessee has not placed any information regarding the nature of services rendered by the non-resident agent and he has not also produced purchase order ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d and there is no business connection in India by producing relevant records, viz., either agreement entered into by the assessee with them or correspondence took between the parties. Without examining these details, we are not in a position to decide the nature of services rendered by the non-resident agent. Therefore, it is appropriate to remit the entire issue back to the file of the AO with direction to the assessee to prove that it was sales commission towards procurement of orders from abroad. Accordingly, the entire issue is remitted back to the file of the AO for fresh consideration and the AO is directed to make necessary enquiry regarding the nature of services rendered by the non-resident agent and the payments made thereof. With ..... X X X X Extracts X X X X X X X X Extracts X X X X
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