TMI Blog2018 (11) TMI 991X X X X Extracts X X X X X X X X Extracts X X X X ..... roaching the Assessing Officer for order under section 195. In our considered view, the assessee, for the detailed reasons set our above, did not have tax withholding liability from these payments. Assessee is engaged in manufacturing of steel billets, wire rods, bright bars etc. They have been exporting these products to foreign countries. They have certain agents who have procured orders outside India and the assessees have paid commission on such orders. Therefore, respectfully following order of the ITAT in the case of Welspun Corporation Ltd. (2017 (1) TMI 1084 - ITAT AHMEDABAD) as well as orders in the assessee’s own case, we are of the view that no interference is called for in the order of the ld.CIT(A) - decided in favour of ass ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d to be submitted by the assessee in the assessment proceedings. Upon perusal of the same, the assessee was further asked to give reasons as to why no tax was deducted in respect of such payment to commission and further that why such expenditure should not be allowed in view of the provisions of section 40(a)(ia) of the Act. 3. The assessee filed his submissions on 06.02.2014. Certain decisions of the High Courts were also placed in support of the claim of the assessee. However, the Assessing Officer (AO) disallowed such commission of ₹ 52,23,900/- made to the foreign agents as commission and added the same to the total income of the assessee against which appeal has been preferred by he Ld.CIT(A). The Ld. CIT(A) took into conside ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for the AY 2013-14 which was dismissed and the order passed by the Ld.CIT(A) allowing assessee s appeal was upheld. He further placed the same order before us. 5. The Ld. DR relied upon the order passed by the Assessing Officer. 6. We have heard the Representatives of the respective parties. We have perused the relevant materials available on record. We have also gone through the order passed by the Co-ordinate Bench in assessee s own case. In the identical set of facts, where similar payments were made to the foreign agents. The relevant portion of the said decision is as follows:- 4. At the very outset, the ld.counsel for the assessee contended that similar payments were made in the assessment years 2001-02 to 2009-10 and 2011 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 5 ITR (T) 405 (Ahd). On the other hand, the ld.DR relied upon the order of the AO. 5. We have duly considered rival contentions and gone through the record carefully. A perusal of the CIT(A) s order would indicate that identical issue has been considered in earlier years. Consistently, it has been held that payments made by the assessee to alleged foreign commission agents does not involve element of income assessable in India, and therefore, there is no obligation upon the assessee to deduct TDS. Reference to the decision of the Hon ble Supreme Court in the case of GE India Technology Centre P. Ltd. v. CIT [2010] 327 ITR 456 (SC) was made. Apart from consistency, we would like to make reference to the facts noted in the head notes of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to identify sub-contractors and logistic service provider, such as shippers and cargo handling agencies, to ensure the smooth execution of contracts. During relevant year, the assessee made payment of export commission to commission agents without deducting tax at source. The assessee claimed that the export commission was not a service and if at all they are being construed as services, the same was being rendered outside India and was not taxable in India under section 5(2). Accordingly, the tax was not required to be withheld under section 195. The Assessing Officer held that the responsibilities of agents showed that agents were required to render technical services, allow the use of information containing industrial, comm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ty from these payments. As held by Hon'ble Supreme Court in the case of GE India Technology Centre (P.) Ltd. v. CIT [20101 327 ITR 456/193 Taxman 234/7 tax.mann.com 18, payer is bound to withhold tax from the foreign remittance only if the sum paid is assessable to tax in India. The assessee cannot, therefore, be faulted for not approaching the Assessing Officer under section 195 either. As regards the withdrawal of the CBDT circular holding that the commission payments to non-resident agents are not taxable in India, nothing really turns on the circular, as de hors the aforesaid circular, we have adjudicated upon the taxability of the commission agent's income in India in terms of the provisions of the Income Tax Act as also the re ..... X X X X Extracts X X X X X X X X Extracts X X X X
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