TMI Blog2012 (10) TMI 1177X X X X Extracts X X X X X X X X Extracts X X X X ..... actually rendered by its agent M/s El Tabaldi Co Ltd. proceeded to hold that M/s El Tabaldi Co Ltd. rendered composite services comprising of commission agency and for promoting sales of appellant in foreign countries. 2) on the facts of the case and in law, the learned CIT(A) erred in: a) Confirming the disallowance of ₹ 63,95,467/- made by the AC under section 40(a)(i) of the Income Tax Act,1961(ITA) with regard to commission paid to M/s El Tabaldi Co Ltd. 3 At the time of hearing, the ld AR of the assessee has submitted that the assessee does not press ground no.1 and the same may be dismissed as not pressed. The ld DR has no objection, if the ground no.1 of the assessee s appeal is dismissed as not pressed. Accordingly, w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ee for the territory of Sudan and Tehad as well as the ground work and other efforts in marketing and selling of the assessee s products in the above territories. Accordingly, the Assessing Officer held that the services offered by M/s EI Tabaldi Co Ltd are covered under managerial services that are included in fee for technical services defined in Explanation 2 u/s 9(1(vii) of the I T Act and disallowed ₹ 63,95,467/- u/s 40(a)(i) of the I T Act. 4.3 On appeal, the Commissioner of Income Tax(Appeals) has confirmed the disallowance made by the Assessing Officer and held that the assessee has paid to M/s EI Tabaldi Co Ltd a composite amount including fees for technical services which is taxable and for which the assessee was obliged ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t all ground work, efforts for sales promotion of the assessee s product at its own expenses in these territories. Accordingly, the Assessing Officer has held that the services provided by M/s EI Tabaldi Co Ltd is in the nature of managerial services and the payment falls under the terms fee for technical services as per the I T Act. The ld DR has further submitted that the Commissioner of Income Tax (Appeals) has given a finding that the payments were made for providing composite services. She has relied upon the orders of the authorities below. 6 We have considered the rival submissions as well as the relevant material on record. As per the agreement dated 1.10.2004, the assessee has appointed M/s EI Tabaldi Co Ltd as selling agent f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mission at the rate mutually agreed on the FOB Value and same shall be communicated to the Selling Agent along with the copy order. The commission would be paid directly to the Selling Agent s designated Bank account in its country of incorporation. 6.1 It is clear from the clauses of the agency agreement that the payment was to be made as agreed by the parties on the FoB value which clearly indicates that the payment was based on the export turnover on the FoB value and no separate payment either payable as per the agreement or paid by the assessee except a certain percentage on the invoice of the amount. The assessee has filed the details of the payments which clearly show that the payment was made at certain percentage on export of g ..... X X X X Extracts X X X X X X X X Extracts X X X X
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