TMI Blog2016 (3) TMI 1325X X X X Extracts X X X X X X X X Extracts X X X X ..... id to have complied with requisite condition of section 248. Therefore, we send this issue back to the file of CIT(A) to examine the facts of these cases keeping in mind this legal background. The appellant is directed to submit before the Ld. CIT(A) all requisite evidences to show that the appellant has borne impugned liability of tax deducted at source under an agreement or other arrangement, as the case may be. CIT(A) shall give adequate opportunity of hearing to the appellant and shall allow him to raise all legal and factual issues on this aspect. The appellant shall also file requisite evidences to show that the impugned amount of tax has been paid by it to the credit of Central Government, which is another mandatory condition for filing of appeal u/s. 248 - ITA Nos. 2339, 2340, 2341, 2342, 2343, 4289/M/2010 and 5666, 3272, 2147/M/2011 - - - Dated:- 16-3-2016 - Sanjay Garg, Member (J) and Ashwani Taneja, Member (A) For the Appellant : Nitesh Joshi, AR For the Respondents : M. Raghaven, DR ORDER Ashwani Taneja, Member (A) 1. These appeals, involving identical issues, belonging to one appellant, have been filed against separate orders of Ld. CIT(A), ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... provider was paid by these entities through IATA-India and IATA-Canada. It was held that service was in nature of a technical service, and therefore, the remittances were in the nature of Fee for Technical Services (FTS) and therefore taxable @ 10% in view of Article 13 of DTAA between India and France. 6. Being aggrieved, IATA-India (i.e. appellant before us) had filed appeals against various orders passed u/s. 195(2) to Ld. CIT(A) u/s. 248 of the Act before Ld. CIT(A), wherein detailed submissions were made. But all the appeals were dismissed in-limine by the Ld. CIT(A) due to following three reasons: (i) Some of these appeals were filed late by the appellant and Ld. CIT(A) refused to grant condonation of delay in filing of the appeals before Ld. CIT(A). (ii) Ld. CIT(A) held that for each remittances there should be separate appeal and in some cases the appellant had filed one appeal for two or more remittances and therefore, only one appeal was admitted and balance were dismissed. (iii) It was held by Ld. CIT(A) that IATA-India was not eligible to file appeal u/s. 248 for the reason that it was not bearing the liability of the tax deducted at source on the remittanc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es. This is determined directly from the invoice issued by ADP-GSI to Geneva office of IATA, Canada for BSP Link services relating to India. Geneva office of IATA, Canada also passes on the pro-rata discount given by ADP-GSI to the appellant. Geneva office of IATA, Canada does not have any mark up on the invoice raised on the appellant. Geneva office of IATA, Canada does not render any service in connection with BSP Link. 5. For making the remittance to IATA, Canada against the aforesaid invoice, the appellant company filed an application before the Asst. Director of Income-tax (International Taxation) - 3(1), Mumbai ( ADIT ) under section 195 of the Income- tax Act ( ITA ). 6. The ADIT passed an order under section 195 of the ITA dated 12 January 2006 holding that BSP Link services is in the nature of technical services and therefore the appellant is required to deduct tax at source. The aforesaid order was valid till 31 March 2006. 7. Against the aforesaid order the appellant has filed an appeal before your honour on 28 March 2006 ((late of payment tax - 27 February 2006) i.e. well within the due date. 8. For subsequent remittances made, the appellant company again ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... with regard to TDS provisions on foreign remittances and filing of appeal u/s. 248 are quite complex in nature. Ld. CIT(A) should not have presumed that the appellant had malafide intention or delay was deliberate, without there being any contrary material on record. The appellant has justified the delay along with duly sworn affidavit signed by its country manager. Ld. CIT(A), before rejecting the deposition made in the affidavit, did not find it appropriate to examine the deponent. No remand report was called from the AO. No facts were brought on record to show that approach of the appellant was not bonafide. Incorrect advice may be received by any person at any point of time. We do not find approach of Ld. CIT(A) for dealing with the issue of condonation of delay, to be fair and judicious. Therefore, keeping in view, the facts of the case and judgments relied upon by the Ld. Counsel, we find it appropriate to condone the delay and direct the Ld. CIT(A) and take these appeals on record for hearing, subject to compliance of other requirements of law, discussed hereinafter. 10. Filing separate appeal for each remittance: 10.1. The Ld. CIT(A) has held that for every remittance ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r a declaration that no tax was deductible on such income. Before the amendment was made by Finance Act, 2007, section 248 read as under: Appeal by person denying liability to deduct tax- any person having in accordance with the provisions of section 195 and 200 deducted and paid tax in respect of any sum chargeable under this Act, other than interest, who denies his liability to make such deduction, may appeal to the Commissioner (Appeals) to be declared not liable to make such deduction. 11.4. The perusal of the section 248, as amended by the Finance Act, 2007, reveals that following conditions are required to be fulfilled to enable a person to file an appeal u/s. 248 against order passed u/s. 195: (a) An order has been passed against the said person u/s. 195(2) of the Act, (b) The tax deductable on the income as mentioned in the aforesaid order is to be borne by the person who is payer, under an agreement or other arrangement. (c) The said person has paid tax to the credit of the Central Government. It may be noted that condition at point no (b) above, has been introduced by the Finance Act, 2007 w.e.f. 01.06.2007. 11.5. In the appeal before us, it h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ccordance with section 248, as it stood after the amendment made by Finance Act, 2007. In other words the requirement of compliance of the condition of bearing of liability of TDS by the payer is not required to be met for filling of appeal u/s. 248 with respect to the remittances made prior to 01.06.2007. Thus, the Ld. CIT(A) is directed to examine all these facts appeal and admit the same accordingly, u/s. 248. (2) Further, as far as compliance of condition of bearing the tax liability by the appellant is concerned, we find that the requirement of law has not been indeed properly understood by Ld. CIT(A) while examining the facts of the case of the appellant. The section uses the expressions that Where under an agreement or other arrangement..... . It shows that the section has been drawn in a manner so as to include wider range of possibilities in which tax liability can be borne by a person. The section could have merely used the term 'agreement', but it did not stop there and further added another expression i.e. 'arrangement', thereby widening its scope. In our opinion, it means that a person can bear liability (of tax) as per a written agreement or under ..... X X X X Extracts X X X X X X X X Extracts X X X X
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