TMI Blog2023 (11) TMI 196X X X X Extracts X X X X X X X X Extracts X X X X ..... uotation. Basis with the ld. CIT(A) for rejecting the internal CUP of the assessee was not correct. Having held so, there is no doubt that the internal CUP is the best comparable which can be taken for comparability analysis as compared to external comparable and no deficiency having been found in the internal CUP, the external CUPs taken by the AO/TPO are rejected as not applicable for comparability analysis in the present case. We hold that the transactions of loans advanced to AEs by the assessee was adequately demonstrated by the assessee to be at Arm s Length Price based on the comparability analysis done with its internal comparable. No transfer pricing adjustment to the same was warranted and the transfer pricing adjustment made by the authorities below is directed to be deleted. TP Adjustment - outstanding receivables of the assessee for the overdue period of outstanding by charging interest thereon treating them as in the nature of loans and advances made to the Associated Enterprises - HELD THAT:- As decided in KUSUM HEALTH CARE PVT. LTD. [ 2017 (4) TMI 1254 - DELHI HIGH COURT] where the international transactions of sales has been demonstrated to be at arm s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... R D expenditure incurred in in-house facility of the assessee - Claim in excess of that allowed by the DSIR in Form 3CL - quantum to which the assessee is eligible? - claim of the department being that the assessee is eligible to claim deduction only on the expenditure approved by the prescribed authority in Form No.3CL and the assessee arguing otherwise - HELD THAT:- What is only to be reported by the prescribed authority is the cost of in-house research facility, mentioning specifically the expenditure incurred on land building, since the expenditure on land building is not eligible to weighted deduction as per section 35(2AB) of the Act. Therefore, we are convinced with the contentions made by assessee that the reporting by the prescribed authority in Form No.3CL of the revenue and capital expenditure incurred by the assessee can no way be relied upon and taken as that approved by the prescribed authority, restricting the assessee s claim to weighted deduction to the expenditure allegedly approval by the prescribed authority. As noted above by us from the provisions of section and rules and form prescribed thereto, there is no requirement for the approval of any expe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t attributable to the same on proportionate basis which accordingly was disallowed in terms of section 36(1)(iii) - HELD THAT:- DR was unable to controvert the factual finding of the ld.CIT(A) that the assessee s own interest free funds were much more than its investment made in CWIP during the year, as also the fact that even the profits earned during the year sufficed for the purpose of making investment in CWIP during the year. Also judicial proposition in this regard also stands settled by the decision of Reliance Industries Ltd [ 2019 (1) TMI 757 - SUPREME COURT] holding that where mixed funds are available and where sufficient interest free funds are there the presumption is that the same were used for the purpose of making interest free investments, calling for no disallowance under section 36(1)(iii) - DR was unable to point out any subsequent decision of the Hon ble apex court unsettling the said proposition of law. Since the Ld.DR was unable to controvert the findings of the Ld.CIT(A) both on facts as well as law we see no reason to interfere in the order of the CIT(A) deleting the disallowance of interest made u/s 36(1)(iii) of the Act. Disallowance u/s 14A r. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... S APPEAL 3. Giving a brief background of the assessee, learned Counsel for the assessee pointed out that the assessee-company is engaged in the business of manufacturing of pharmaceutical products. That the pharmaceutical products manufactured by it were sold outside country, to facilitate which wholly owned subsidiaries of the assessee company were incorporated in various foreign jurisdiction. The modus operandi being that the assessee made export sales to these subsidiaries, who in turn sold the goods in the foreign jurisdiction by obtaining all necessary approvals and registrations as required as per the laws of those countries. That in the course of transactions carried out with such subsidiaries, which qualified as Associate Enterprises of the assessee in terms of transfer pricing provisions in Chapter X of the Act, the assessee made advances to such entities which the TPO found to be at low rate of interest as compared to the market rate and accordingly made adjustment on account of the difference in terms of the transfer pricing provisions contained in Chapter X of the Act. That on account of sale made to the said Associate Enterprises, there were outstanding recoverab ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y AO/TPO by charging interest on business advances given out of commercial expediency to wholly owned AEs for setting up business by registering products with local authorities, working capital etc. The learned CIT(A) has disregarded the fact that the Appellant had already charged interest on these advances. Further, the CIT(A) failed to appreciate the commercial expediency of granting advances to the AEs. b) That in the facts and circumstances of the case and in law, the learned CIT(A) has failed to appreciate that the appellant company has justified the arm s length rate of interest on commercial advances under CUP methodology by comparing the interest charged by it to AEs at with rate of interest quoted to it by independent third party (Bank of Nova Scotia, Singapore) in the context of providing foreign currency loan. The learned CIT(A) has failed to appreciate that the internal comparables are to be preferred over the external comparable while determining the arm s length price of the international transaction. c) That in the facts and circumstances of the case and in law, the learned CIT(A) ought to have appreciated that there was no parity between the comparabl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... so filed before us. Briefly put, the limbs of the arguments made by the ld.counsel for the assessee against the upward adjustment was made as under: The impugned advances have been made for the business purpose of the assessee, and they did not warrant any TP adjustment; Internal CUP was applied by the assessee for determining the ALP of the transaction is a valid CUP and could not have been rejected; That internal comparables are to be preferred over the external comparables, and therefore, the external comparables adopted by the TPO is to be rejected; and the assessee s internal comparable has to be accepted; That the rate of interest to be applied for determining the ALP was to be the rate applicable to the currency in which the loan was taken or repaid and in the present case, being USD, the TPO had erred by adding mark ups to it based on the geographical location of the AE to which the advances were made; That no adjustment on account of foreign exchange risk was required, and lastly; The rate of interest charged by the assessee at 3.22% being higher than the LIBOR, the charging of interest at LIBOR has to be considered as ALP as held by various C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he basis of the TPO for rejecting the internal CUP of the assessee. He drew our attention to page no.6 of the TPO s order wherein the TPO had noted that the AE s being located in different geographical locations and internal comparable being located in one specific region only i.e. Singapore, this was not appropriate comparable since different geographical location of the AEs was not addressed by this comparable. He thereafter took us to the finding of the ld.CIT(A) for rejecting the internal CUP at page no.40 of the order para 3.7 3.8 as under: The appellant has argued that the internal CUP in the form of quotation obtained from Bank of Nova, Scotia (BNS), Singapore should be taken for benchmarking and relied upon various case laws including that of Honourable Gujarat High Court in the case of CIT Vs. Adani Wilmar Limited [363 !TR 338]. In the case before the Honourable High Court of Gujarat in the above case was that the TPO adopted CUP method to benchmark international transactions. The assessee presented two sets of prices claiming them to be comparable to his transaction with the associated enterprises. One set of prices relied upon by the assessee was supplied by the Ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3 ITR 338. The ld.counsel for the assessee contended that the reliance placed by the ld.CIT(A) on this decision was misplaced and distinguishable on facts. He stated that in the said case, the assessee had relied upon quotation published by the Oil Board, an independent organization, for benchmarking its international transactions adopting CUP method. Hon ble High Court in the case had held that publication was authentic and reliable and could be treated as comparable for CUP analysis. The ld.counsel for the assessee pointed out that relying upon the said decision, the ld.CIT(A) held that quotation relied upon by the assessee in the present case was not a publication, and therefore, could not be relied upon as authentic and reliable. The ld.counsel for the assessee contended that this quotation of the assessee in any case could not have been a public document because it is a quotation on account of private agreement being entered into with bank. Therefore, the distinction made by the ld.CIT(A) was irrelevant; that in any case, it was an internal CUP of the assessee which was to be treated as most comparable as compared to any other external CUP. The Ld.DR however supported the o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he internal CUP being derived from an authentic document, cannot be rejected. In the light of the above, we hold that the basis with the ld. CIT(A) for rejecting the internal CUP of the assessee was not correct. Having held so, there is no doubt that the internal CUP is the best comparable which can be taken for comparability analysis as compared to external comparable and no deficiency having been found in the internal CUP, the external CUPs taken by the AO/TPO are rejected as not applicable for comparability analysis in the present case. 15. Since we have rejected the external CUP taken by the authorities below for the aforesaid reason, we do not consider it fit to deal with the other arguments of the ld. Counsel for the assessee against the same. In view of the above, we hold that the transactions of loans advanced to AEs by the assessee was adequately demonstrated by the assessee to be at Arm s Length Price based on the comparability analysis done with its internal comparable. That, therefore, no transfer pricing adjustment to the same was warranted and the transfer pricing adjustment made by the authorities below to the tune of Rs. 2,59,90,049/- is directed to be dele ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ional transactions of purchase and sales to Associate Enterprises after making working capital adjustment to the PLI adopted by it. That having done so, no further adjustment on account of outstanding receivables for notional interest thereon was required as held by the Hon ble Delhi High Court in the case of Pr. CIT vs. Kusum Healthcare Pvt. Ltd. vide order dated 25.04.2017 in ITA No. 765/2016 and by the decision of ITAT Ahmedabad Bench in the case of Micro Ink Ltd. Vs. ACIT, reported in [2016] 157 ITD 132 ( ITAT-Ahd). b) Even otherwise the component of sales made by the assessee by way of exports to its AEs was 25% of the total sales turnover of the assessee and the receivables were outstanding for a period of only 45 days. The outstanding, therefore, clearly was not for substantial period and even otherwise could be attributed to commercial expediency, thus the outstanding could not be treated as loans or advances for the purposes of making any adjustment on account of notional interest to be charged by the assessee thereon. c) That the authorities below had relied on judgment of the ITAT which stood overruled by the decision of the Hon ble Delhi High Court in the case of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the TNMM method for comparability analysis. 20. He thereafter drew our attention to the findings of the TPO at page No.41 of his order where the TPO began discussing the issue of benchmarking of receivables and finally to his findings at page No.52 wherein, drawing our attention to paragraph No.10.6 of his order, learned Counsel for the assessee pointed out that the TPO relied on the decision of the ITAT Ahmedabad Bench in the case of Ameriprise India Pvt. Ltd. Vs. ACIT in ITA No. 2575/Del/2014, holding that the outstanding receivables were to be treated as separate international transactions rejecting the contention of the assessee that the same stood demonstrated as at arm s length where TNMM method was adopted. 21. He thereafter drew our attention to the findings of the learned CIT(A) at page No.72, paragraph No.4.10 of the order pointing out that the learned CIT(A) relied on the order of the ITAT in the case of Bechtel India Pvt. Ltd. Vs. ACIT, in ITA No. 6530/Ahd/2016, upholding the findings of the TPO. 22. He pointed out that the decision relied upon by the TPO in the case of Ameriprise India Pvt. Ltd. (supra) stood reversed by the Hon ble Delhi High Court in the ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lhi High Court in the case of Kusum Healthcare Pvt. Ltd. (supra) ,is that where the international transactions of sales has been demonstrated to be at arm s length by adopting the TNMM method and after making working capital adjustment to the Profit Level Indicator (PLI), there remains no scope for making any further adjustment on account of overdue outstanding receivables on account of the very same sales transactions made to AEs. The reasoning being that the working capital adjustment made to the PLI take care of the overdue outstanding receivables. The ld. DR has been unable to point out any contrary decision on the issue of either the jurisdictional High Court or of the Hon ble Apex Court; nor was he able to distinguish the decision of the Hon ble Delhi High Court in the case of Kusum Healthcare Pvt. Ltd. (supra) before us. 26. Having said so, we completely agree with the ld. Counsel for the assessee that the said decision squarely applies to the facts of the present case since the assessee in the present case had done the TP analysis of its international transactions using the TNMM method and after making working capital adjustment to its PLI. These facts were sufficiently ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (A) ought to have appreciated that IPL, which fulfils the conditions of selection of the tested party as laid down under Rule 10B of the Income Tax Rules and whose data regarding the comparable companies and the comparable uncontrolled transactions were more reliably available should be considered as a tested party d) That in the facts and circumstances of the case, the learned CIT(A) erred in not appreciating the fact that the AO/TPO has failed to find out appropriate comparable for IP Firm and benchmarked the IP Firm with entities whose Functions, Assets and Risk ('FAR') Analysis and business profile was more akin to the appellant company and which were used by the appellant company as comparable entity in its TP documentation. e) That in the facts and circumstances of the case and in law, the learned CIT(A) further erred in ignoring the fact that under secondary analysis, the appellant company has substantiated the ALP under internal Resale Price Method by benchmarking gross margin earned by it in reselling the products bought from IP Firm vis a vis the gross margin earned by it in reselling the products bought from third parties. 29. Giving brief backgrou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... x (MAT) and Alternate Minimum Tax (AMT) respectively. That therefore, there was no requirement for any adjustment to be made on account of the arm s length price of the transactions. Reliance in this regard was placed on the decision of the Hon ble Apex Court in the case of CIT vs. Glaxo Smithkline Asia (P.) Ltd, reported in 195 taxman 35 iii) That even otherwise the TPO had erred in taking the AE as the tested party since the data of comparables in the case of AE was not easily available and as per Rule 10C(2)(e) of the Income-tax Rules, 1962, such party whose comparables were not easily available could not be treated as a tested party. That even otherwise for determining the arm s length price of international transaction with AE, the assessee had been taken as a tested party and thus clearly the TPO was adopting double standards taking assessee as a tested party in transactions for determining the arm s length price of international transactions and AE as a tested party for transactions entered into with domestic entities. iv) That the TPO despite taking the AE as a tested party had still gone on to take the same entities as comparables which the assessee had selected taki ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d from the statute by Finance Act 2017. That there was no saving clause provided in the statute for pending proceedings . And accordingly this omission was interpreted by courts as the relevant clause having never existed in the statute since the beginning. Reference was made to the decision of the Hon ble Karnataka High Court in Pr. CIT Vs. Texport Overseas (P.) Ltd., reported in [2020] 114 taxmann.com 568 (Karnataka) holding the amendment to have retrospective effect as if the said transaction never qualified as specified domestic transactions . Reliance was also placed on the following case laws wherein the said proposition was followed,: vi) Texport Overseas Pvt Ltd vs. DCIT (Bangalore ITAT), IT(TP)A 1722/Bang/2017 vii) Yorkn Tech Pvt. Ltd. v DCIT (ITA No.635/Del/2021 ) viii) SKM-UMSL JV vs ITO ITA 229/CTK/2019) ix) Shree Sai Smelters (I) Ltd. vs ACIT 118 taxmann.com 350(Gauhati ITAT) x) Raipur Steel Casting India (P) Ltd v PCIT 117 taxmann.com 944 (Kolkatta Trib) xi) Swastik Coal Corporation V PCIT ITA 486/Ind/2018 (Indore ITAT) 34. On going through the facts of the case we find that the assessee had reported this transaction qualifying as specified domest ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... deduction under section 35(2AB) of the Ac to the extent of expenditure, as approved by the prescribed authority in Form No.3CL. 38. The facts relating to the Asst. Year 2013-14 are that the assessee had claimed expenditure under section 35(2AB) of the Act of Rs. 12348 lakhs being revenue expenditure and Rs. 869 lacs being capital expenditure. In the Form No.3CL, the DISR mentioned amount of Rs. 8065 lakhs against revenue expenditure and Rs. 64 lakhs against capital expenditure. The AO took cognizance of the amount mentioned in form No.3CL and allowed weighted deduction with respect to the same only. With respect to the balance, being an amount of Rs. 4283 lakhs of Revenue expenditure and Rs. 809 lakhs of capital expenditure claimed by the assessee, the AO denied weighted deduction on the same and accordingly disallowed an amount of Rs. 5087 lakhs (Rs.4283/- lakhs plus Rs. 809 lakhs). 39. The ld.CIT(A) noted that out of the amount of claim disallowed to the assessee , Rs. 3474.70 lakhs pertained to clinical trial incurred to test and noting that this claim has been allowed to the assessee in its own appeal in the preceding assessment year right from A.Y 2007-08 to A.Y 2012-13 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... IR as relating to intangibles of Intas Biopharmaceuticals (IBL), it was contended that IBL had amalgamated with the assessee w.e.f. 1-4-2012 and DSIR had disallowed the claim since Form No.3CM was filed in the name of the assessee, that therefore it did not relate to expense incurred by the assessee. Reliance was placed on the decision of ITAT, Hyderabad Bench in the case of Dr.Reddy s Laboratories Ltd. Vs. ACIT, ITA No.2229/Hyd/2011 and 85/Hyd/2013 for the proposition that successor is eligible to claim the benefit of section 35(2AB) expenditure in the case of merger. 42. The argument of the department with respect to the above contentions was that the restriction of claim of the assessee to weighted deduction under section 35(2AB) of the Act to the extent approved by the prescribed authority was in accordance with law. With respect to its grievance of the allowance of claim of weighted deduction to the expenditure incurred on clinical trial, the ld.DR reiterated its contentions that the assessee was only eligible to claim weighted deduction to the extent approved by the DSIR, and the ld.CIT(A), therefore had erred in allowing deduction to clinical trial which was not approved ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eding year. Explanation: For the purposes of this sub-rule the expression audited means the audit of accounts by an accountant, as defined in Explanation below sub-section (2) of section 288 of the Income-tax A 1961; (d) Assets acquired in respect of development of scientific research development facility shall not be disposed of without the approval of the Secretary, Department of Scientific and Industrial Research.] 46. As is evident from Rule 6 clause(7A), the prescribed authority has to submit its report in relation to approval of in-house facility , which is to be submitted to the DGIT in Form 3CL and this Form No.3CL is to be submitted within 60 days of granting approval. It is clear from the same, therefore, that the Form No.3CL is only for the purpose of intimating the concerned officer of the Department regarding grant of approval to an in-house R D facility of assessee by the prescribed authority. The fact that this form no.3CL is required as per the Rule to be submitted to the DGIT within 60 days of grant of approval makes it clear that the only purpose is intimating the concerned officer within a reasonable period of time of grant of approval to the con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , 25 taxmann.com 519 (ITAT-Ahd); c) IT(SS)A.No.807 to 809/Ahd/2010 20/Ahd/2011; d) Claris Lifesciences Ltd., 174 taxman 113 (Guj); The Ld DR was unable to either distinguish the said decisions nor did he draw our attention to any contrary decision of a higher judicial forum. 50. Considering the above, the Revenue s contention of disallowing the assessee s claim of weighted deduction on clinical trial amounting to Rs. 3474.74 lakhs is dismissed, since solitary contention of the Revenue is that DSIR had not approved this expenditure in Form No.3CL. 51. Now coming to the claim denied by the ld.CIT(A) for the identical reason that they were not approved by the DSIR firstly since, we find, this reasoning of the ld.CIT(A) to be not in accordance with law, we hold that claim could not have been denied for this reason on the remaining amount. Even otherwise, we find on merit that the assessee has reasonably demonstrated that the remaining expenditure were also in relation to R D activity. It has been repeatedly contended by the assessee, even before the lower authorities that, the expenditure relating to salary of R D person of IBPL and capital expenditure relating to inta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The contention of the ld.counsel for the assessee before us was that the claim of the assessee pertained to product developments expenses incurred in relation to three products and allowable as deduction under section 35(1)(iv) of the Act; that merely because the same was not made in the return of income, it could not be denied to the assessee. He contended that it was settled law that the assessee is entitled to make its claim which otherwise was not made originally before any appellate authority. We agree with the ld.counsel for the assessee that the assessee is entitled to claim, even not claimed in the original return of income filed by the assessee or even by way of revised return. This issue is settled by various decisions of Hon ble High Courts and Hon ble Apex Courts as under: CIT v Arvind Mills Ltd (Gujarat High Court) (Tax Appeal 1407 of 2011) (Refer page 695 to 698 of Legal Paperbook) Dr. K. Nedunchezhian v DCIT (Madras High Court) (153 taxman 183) (Refer page 699 to 701 of Legal Paperbook) Jute Corporation of India Ltd vs CIT (Supreme Court) (53 taxman 85) (Refer page 702 to 707 of Legal Paperbook) CIT vs Kanpur Coal Syndicate (Supreme Court) (53 ITR ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Weighted Deduction claim of the assessee U/s 35(2AB) in excess of that allowed by the DSIR in Form 3CL. 60. The issue raised in the above ground relates to denial of assesses claim of weighted deduction u/s 35(2AB) of the Act, which was partly allowed by the Ld.CIT(A). This issue has been dealt with by us in Ground No.2 raised by the assessee in its appeal, dealt with by us above at para 43-52, wherein we have held the assesses entire claim to be in accordance with law. The ground raised by the Revenue becomes infructuous and is therefore dismissed. Ground No.2 is dismissed 61. Ground No.3 raised by the Revenue reads as under: 3. The Ld CIT(A) had erred in deleting the disallowance of u/s. 36(1)(iii) of the IT Act. 62. Briefly stated the AO noted substantial investment made by the assessee in capital work-in-progress (CWIP) increasing from Rs. 94.58 crs as at the beginning of the year to Rs. 392.08 crs as at the end of the impugned year. He also found that the assessee had made huge payment of interest, to the tune of Rs. 47.48 crs during the year. The assesses explanation of investment in CWIP being made out of own funds was rejected by the AO since the assess ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re available and where sufficient interest free funds are there the presumption is that the same were used for the purpose of making interest free investments, calling for no disallowance under section 36(1)(iii) of the Act. The Ld.DR was unable to point out any subsequent decision of the Hon ble apex court unsettling the said proposition of law. 65. Since the Ld.DR was unable to controvert the findings of the Ld.CIT(A) both on facts as well as law we see no reason to interfere in the order of the ld.CIT(A) deleting the disallowance of interest amounting to Rs. 15,11,66,895/- made under section 36(1)(iii) of the Act. Ground of appeal No.3 is dismissed. 66. Ground of appeal No.4 reads as under: 4. The Ld.CIT(A) has erred in law and on facts in deleting the disallowance u/s 14A of the IT Act 4.1 The Ld CIT(A) has failed to appreciate that the onus lies on the assessee to demonstrate that it had interest free funds available with it for making such investment/-and not other way around. 4.2 The Ld CIT(A) has failed to appreciate that in the case of mixed funds, theory of apportionment of interest is applicable. Reference in this regard is made to the decision of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as appellant on its own has made disallowance of Rs. 48,57,942/-. The AO observed that the appellant has failed to prove that no interest bearing funds have been used in making investment in shares on which the income is exempt. AO accordingly made disallowances under Rule 8D(2)(ii) of Rs. 76,81,058/- and under Rule 8D(2)(iii) of Rs. 24,43,548/-. Appellant has submitted that it has not received any dividend income during the year and investment including investment in foreign companies which income is taxable has been made out of own fund. Appellant has submitted that the share capital and reserves and surplus as on 31/03/2013 is Rs. 22,29,67,01,075/- as against investment of Rs. 525,66,85,342/- which demonstrate that appellant has sufficient own fund. In view of the above, disallowance as per Rule 8D(2)(ii) is uncalled for. 70. Further it was brought to our notice that the Hon ble apex court has laid down the law that where sufficient own interest free funds are available no disallowance of interest is called for u/s 14A of the Act. In this regard our attention was drawn to the following decision of the Hon ble Apex Court: i) PCIT Vs. Sintex Industries Ltd., 93 taxmann.com ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of commission, accrued in India being sourced in India. He held that agents having rendered services abroad in the form of soliciting orders and even the fact that commission was to be remitted abroad, was wholly irrelevant for the purpose of determining the question of accrual of income. He relied on the decision of AAR in the case of Rajiv Malhotra, 284 ITR 564 and SKF Boilers Driers P.Ltd., 18 taxmann 325 (2012). Accordingly, he held that since the commission was chargeable to tax in India and no TDS thereon was made by the assessee, the entire commission claimed by the assessee was liable to be disallowed in terms of provisions of section 40(a)(ia) of the Act. 75. The ld.CIT(A), however, noted the decision of the Hon ble Apex Court in the case of CIT Vs. Toshoku Limited, 125 ITR 525 (SC) holding that commission earned by non-residents for acting as selling agent for Indian exporters cannot be said to accrue or arise in India when such non-resident was rendering services from outside India. Taking note of this proposition laid down by the Hon ble Apex Court, he noted that in the facts of present case, as per the evidence filed by the assessee, and as noted by the AO also, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... payment on behalf of the appellant company were also done abroad. The AO was therefore, incorrect to hold that the source of income lies in India as the sales have been made from India. The provisions of Income Tax Act clearly provide that the tax would be deducted on the income which is taxable in India. The activity of earning the income is not the sale but soliciting the sales by commission agents. Though this activity is linked to the sales of the company but it cannot be said that the income has been derived from sales which has been made from India. The income has been derived from the activity of soliciting the sales on behalf of the appellant company. The agents have carried out all the activity on the foreign soil and none of their activity is in India therefore, it cannot be said that the income has accrued or arisen in India and the source of income was in India. There is no fact brought out by the AO in the order as well as observed by me during the course of appellate proceedings to indicate that the services have been rendered in India. 9.7. The judgment of honourable Supreme Court in the case of CIT vs. Toshoku Limited [125 ITR 525 (SC)] is important on the iss ..... X X X X Extracts X X X X X X X X Extracts X X X X
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