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2016 (3) TMI 1075 - BOMBAY HIGH COURT

2016 (3) TMI 1075 - BOMBAY HIGH COURT - TMI - TDS u/s 195 - Disallowance u/s 40(a)(ia) - non-deduction of tax at source on payments of commission to non-resident sales agents - Held that:- Before effecting deduction at source one of the aspects to be examined is whether such income is taxable in terms of the Income Tax Act. This aspect has not been considered by learned Tribunal while concluding that the Appellant has committed a default in not deducting the tax at source.

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Dated:- 7-3-2016 - F.M. REIS AND K. L. WADANE, JJ. For The Appellant : Shri. Mihir Naniwadekar, Advocate with Ms. Vinita Vishram Palyekar, Advocate For The Respondent : Ms. Asha Desai, Advocate ORAL JUDGMENT : (Per F.M. REIS, J.) Heard Shri Mihir Naniwadekar, learned Counsel appearing for the Appellant and Ms. Asha Desai, learned Counsel appearing for the Respondents. 2. Admit on the following substantial question of law: Whether on the facts and in the circumstances of the case and in law, the .....

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of the Finance Act, 2012 inter alia, while coming to the conclusion that even in case in which the income of the non- resident is not chargeable to tax in India, the deduction at source would have to be made by the Appellant. Learned Counsel further points out that the explanation was not itself relevant to the facts of the case as it is not the case of the appellant that the commission paid to the non-resident was not chargeable to tax in India. Learned Counsel further points out that the CIT( .....

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s relied upon the Judgment of Division Bench of this Court passed in Income Tax Appeal No.169/2014 dated 08.12.2015 in the case of Commissioner of Income Tax-10 v/s. Gujarat Reclaim & Rubber Products Ltd.. Learned Counsel further pointed out that as far as interest, the grievance is that, though the learned Tribunal has remanded the matter to the Assessing Officer to examine whether the subject transaction is speculative or not, the contentions of the Appellant on all counts had to be kept o .....

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unal in remanding the matter to the Assessing Officer. Learned Counsel further pointed out that in view of the judgment of the Division Bench of this Court, no fault can be found in the impugned order as contended by the learned Counsel appearing for the Appellant. Learned Counsel further submits that the learned Tribunal has rightly come to the conclusion that irrespective of the fact that a non-resident is not liable to tax, such deduction has to be effected in respect of payments of commissio .....

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he second grievance raised by the learned Counsel appearing for the Appellant with regard to the directions to the Assessing Officer to examine whether the subject transaction is speculative, we accept the contention of the learned Counsel for the Respondents that on this count there can be no substantial question of law. All contentions of the Appellant on merits on that count are kept open. 8. With regard to substantial question of law referred to above, we find that in the Judgment of the lea .....

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