TMI Blog2019 (1) TMI 537X X X X Extracts X X X X X X X X Extracts X X X X ..... -deduction of TDS on the payment made to M/s Graziano Transmission North America, USA holding the same as commission - the payment is actually in the nature of fee for technical services and the assessee only named the same as commission to enjoy the tax benefit - Held that:- We find that the agent is not providing any technical services to the assessee. The agent is acting only commission agent and procuring the orders for the assessee and to inform the assessee for any infringement of rights. Even if the same is considered as business income of the commission agent same is not taxable in India as the foreign entity does not have any PE or BC in India. The commission is being entertained in the foreign company in the foreign country. No pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ices and the assessee only named the same as commission to enjoy the tax benefit. iii. The appellant craves leave for reserving the right to amend, modify, add or forego any ground(s) of appeal at any time before or during the hearing of appeal. 2. The brief facts of the case are that assessee company has filed the return of income on 30.9.2010 declaring total income of ₹ 19,97,49,488/-. The case of the assessee was selected for scrutiny and notice under section 143(2) of the Income Tax Act, 1961 (in short Act ) was issued on 09.4.2012. Again notice u/s. 143(2) of the Act alongwith questionnaire under section 142(1) of the Act was issued on 2.9.2013. In response to the same, the assessee s A.R. appeared and filed the requisite ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te, the AO observed that assessee was liable to deduct TDS on export commission of ₹ 89,91,816 paid to non-resident / outsiders. Since assessee did not deduct the TDS as per provision of the section 195 of the Act, therefore, total deduction of expenditure of ₹ 88,91,816/- on export commission, as claimed by assessee, was disallowed and added back to the taxable income of the assessee for the AY 2010-11. Accordingly, the AO assessed the income of the assessee at ₹ 22,10,20,170/- u/s.143(3) of the Act dated 28.2.2014. Against the assessment order, assessee appealed before the Ld. CIT(A), who vide his impugned order dated 04.2.2016 has allowed the appeal of the assessee. Aggrieved with the impugned order, Revenue is in appea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 278 ITR 337 Delhi High Court. Apart from this the Ld. AR has also brought to my notice that the same expenditure was allowed by the AO in his order u/s. 143(3) for AY 2009-10 and AY 2011-12. So in other words, it is preceding year as well as the succeeding year the claim of the appellant has been accepted. The Ld. AR has contended that the principle of consistency demands that the claim of the appellant should be accepted in this year also. Considering the judicial pronouncement as discussed above as well as the principle of consistency the claim of the assessee is accepted and addition on account of LTA of ₹ 11,87,056/- is deleted. 5.1 After perusing the aforesaid findings of the Ld. CIT(A), we are of the considered view tha ..... X X X X Extracts X X X X X X X X Extracts X X X X
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