TMI Blog2022 (2) TMI 72X X X X Extracts X X X X X X X X Extracts X X X X ..... s own case for A.Y. 2010-11 [ 2021 (8) TMI 365 - ITAT AHMEDABAD ] we allow this ground of appeal by directing the Ld. AO to verify the same in the light of the decision given by the Coordinate Bench in the A.Y. 2010-11and to allow the claim accordingly upon giving a reasonable opportunity of being heard to the assessee. This ground of appeal is, therefore, allowed for statistical purposes. TDS u/s 195 - Addition in respect of the assessee s foreign Commission payment - HELD THAT:- In the absence of any changed facts and circumstances of the matter in assessee s own case for A.Y. 2010-11 [ 2021 (8) TMI 365 - ITAT AHMEDABAD ] we set-aside the issue to the file of the Ld. AO to verify the details of services obtained from the commission agents by the assessee and to pass order accordingly upon giving an opportunity of being heard to the assessee and upon considering the evidence which the assessee may choose to file at the time of hearing of the matter. Thus, this ground of appeal is allowed for statistical purposes. Addition u/s 14A - Disallowing applied Rule 8D being interest and administrative expenditure @ 0.5% of the average investments - CIT-A deleted the addition - H ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... However, he has further submitted that on the identical issue the Hon ble Jurisdictional High Court in the case of Deco Mica Ltd. vs. DCIT, Circle-1(1)(1) passed order against the assessee with a rider that in the event the Hon ble Apex Court reverses the judgment in the case of Gujarat State Road Transport Corporation (Supra) pending before it; it would be open for the appellant therein to revive the appeal by filing appropriate application. On that basis he further prayed for a conditional order from us. 5. However, the Ld. DR has relied upon the order passed by Revenue. 6. We have heard the respective parties and perused the relevant materials available on records. We have also further considered the order passed by the Hon ble Jurisdictional High Court on the identical issue in dismissing the appeal preferred by the assessee with the following observation: 3. We have heard Mr. Tushar Himani, the learned senior counsel assisted by Ms. Vaibhavi Parikh, the learned counsel appearing for the appellant - assess referred to above are no longer res-integra in view of the main judgment of this High Court in case of Commissioner of Income-tax Vs. Gujarat State Road Transpor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssessment framed under Section 143(3) of the Act. A copy of the said order passed by the Coordinate Bench has been submitted before us by the Ld. AR. 11. On the other hand, the Ld. DR relied upon the order passed by the authorities below. 12. We have heard the respective submissions made by the parties and we have also perused the relevant materials available on record. We have further considered the order passed by the Coordinate Bench in ITA No. 2908/Ahd/2016 10 others for A.Y. 2010-11. While deciding the issue the Coordinate Bench was pleased to observe as follows: 67. The learned AR before us submitted that the deduction claimed under section 35D of the Act in the year under consideration amounting to ₹ 3,63,06,857/- relates to the expenses incurred in the earlier years which were admitted as deferred revenue expenses in the assessment framed under section 143(3) of the Act. Accordingly, the learned AR contended that the question of allowability of such expenses cannot arise in the year under consideration without disturbing the year in which such expenses were incurred by the assessee. 68. On the other hand the learned DR vehemently supported the order ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... A contrary to the CBDT Circular 5/2014. 3. The appellant craves leave to amend alter any ground or add a new ground, which may be necessary. 15. Ground No. 1 relates to disallowance made by the Ld. AO in respect of the assessee s foreign Commission payment of ₹ 2,03,22,569/-. 16. At the very threshold of the matter the Ld. Counsel appearing for the assessee submitted before us that the issue is squarely covered in assessee s own case by the order passed by the Coordinate Bench in ITA No. 2908/Ahd/2016 for A.Y. 2010-11. Such submission made by the Ld. AR has not been controverted by the Ld. DR. 17. We have further considered the order passed by the Coordinate Bench in assessee s own case for A.Y. 2010-11. While dealing with the issue the Coordinate Bench has been pleased to pass orders in the following manner: 29. The first issue raised by the assessee is that the learned CIT (A) erred in confirming the disallowances of commission paid to foreign agent on account of nondeduction of TDS under section 195 of the Act. 30. The facts in brief are that in the year under consideration the assessee paid certain amounts as commission to its agents in USA and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1-04-1995. Therefore it was not liable to deduct tax on such payment of commission. 33. The learned CIT (A) after considering the facts in totality directed the AO to verify nature of services received and allow the claim accordingly by observing as under: It is the submission of the appellant before the AO that the agents do not have permanent establishment in India . It is also admitted facts as noted by AO in Para 4.2 of the assessment order that the appellant has claimed to have paid export commission to the foreign parties USA, UAE which is said to have been made for utilization of their services for procuring orders from overseas companies and services were said to have been offered to procure export sales orders However, the nature of actual services rendered seems to have not been examined by the AO. If the commission is paid to foreign agents for services rendered outside India merely for procuring sales orders and the agents do not have any PE in India, the ratio of said decision of ITAT in the case of Pankaj A. Shah will be applicable as such income of nonresident agents would not then be taxable in India. However, if there is any managerial or technical servic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... -how as provided under section 9 of the Act. 38. At the outset we note the assessee before authorities below only contended that the agents have no establishment or business connection in India and payments were made outside India. As such the assessee has not substantiated the nature of services provided by the foreign agent. Accordingly we direct the assessee to provide the details of the services obtained from the commission agents to the AO. Therefore in such circumstances we do not find any infirmity in the order of the learned CIT (A). Hence the ground of appeal of the assessee is allowed subject to verification. 18. In the absence of any changed facts and circumstances of the matter we set-aside the issue to the file of the Ld. AO to verify the details of services obtained from the commission agents by the assessee and to pass order accordingly upon giving an opportunity of being heard to the assessee and upon considering the evidence which the assessee may choose to file at the time of hearing of the matter. Thus, this ground of appeal is allowed for statistical purposes. 19. Deletion of addition of ₹ 1,53,436/- is the subject matter before us. In fact, t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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