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Income Tax Appellate Tribunal, “E”, BENCH MUMBAI
Before: SHRI R.C.SHARMA, AM & SHRI AMARJIT SINGH, JM
O R D E R PER R.C.SHARMA (A.M): These are the appeals filed by the revenue against the order of CIT(A)-Mumbai, for the assessment years 2009-10, 2010-11 & 2011- 12, in the matter of order passed u/s.143(3) of I.T. Act.
Common grievance of the revenue in all the years pertains to deleting disallowance made on account of payment made for export commission on which no TDS was deducted and assessee was found to be in default by the AO u/s.195 of the I.T.Act. The disallowance so made by the AO was deleted by the CIT(A) after having following observation :- 2.4.6 Now I proceed to adjudicate on the merits of the case. From the facts submitted, it is apparent that the issue in question was of payment to a non-resident by way of export commission for services rendered outside India on which payments are remitted directly abroad and as such no tax was required to be deducted u/s. 2 195 of the Act. The non-resident did not have any business connection or dependent agent in India and the amount paid was not through or from any property, asset or source of income in India. As such, the amount paid is not income which is chargeable under the provisions of the Act and hence, no tax was deductible therefrom. 2.4.7 I am fortified in the above view by the decision of the Hon'ble ITAT in the case of Armayesh Global vs. ACIT, (2011) 45 SOT 69 (Mum) (URO) dated 23-02-2011 where it has been held as under: "The overseas agent did not render any services in India. It had no place or permanent establishment in India. It worked abroad and procured orders. The· orders were sent directly by the foreign purchasers remitted to the assessee in India and even the payment for export was received by the assessee in foreign currency directly from foreign purchasers and the commission was paid to foreign agent thereafter as a percentage of sales in terms of the agency agreement. The payment made to overseas commission agent by the assessee was not for technical/managerial services. Therefore, in the absence of any service having been rendered in India, no part of the commission paid to the overseas agent could be said to be chargeable in India and in the absence of any income chargeable to tax in India, question of applying section 195 did not arise. [Para 14]" 2.4.8 During the course of appellate proceedings, the Ld. AR also stated that the appellant's case was covered by the decision of Hon'ble Delhi High Court in the case of CIT vs. Eon Tech. 343 ITR 366 where too payments were made by way of commission on export orders. After referring to various decisions of the Hon'ble Supreme Court, it was held that there was no business connection and hence, the commission income did not accrue in India and was not liable to tax in India. While deciding the above case, amendment to section 9(1 )(i) was also referred to. 2.4.9 Having considered the entire gamut of facts as also the case laws cited in respect of the export commission, I find that Hon'ble Supreme Court in the case of G.E. India Technology Centre Pvt. Ltd., 327 ITR 456 (SC) held that a person paying interest or any sum to a non-resident is not liable to deduct tax if such sum is not chargeable to tax under the Income Tax Act, 1961. It further held that if the contention of the Department that the moment there is remittance, the obligation to pay tax arises is to be accepted, then the words 'chargeable under the provisions of the Act' in section 195(1) would stand obliterated. 2.4.10 In the case of Adidas Sourcing Ltd. (2012) 28 taxmann.com 267 (Del-Trib) it was held that income from services rendered by assessee non-resident company to resident company for sourcing of goods from outside India was commission and not fees for technical services. Similarly, in the case of Angelique international 3 Ltd. (2012) 28 taxmann.com 219 (Del-Trib) it was held that export commission paid to a non-resident agent for services rendered outside India was not chargeable to tax in India. 2.4.11. A similar view has also been taken by the Hon'ble Mumbai Bench of ITAT in the case of WNS Global Services (UK) Ltd. (2013) 40 taxmann.com 315 (Mum-Trib) where vide order dated 31-07- 2013, it was held that even if marketing services was attributable to service PE in India, as the services in question were rendered outside India, income of such services could not be said to have accrued or arisen to the assessee or deemed to have accrued or arisen to the assessee in India and hence, existence of service PE in India would not make it taxable under Article 7 of Indo-US DTAA. 2.4.12 It is undisputed that the payments which have been made to the non-residents were in respect of export commission. Further, these non-residents do not have any Permanent Establishment in India. As the services were rendered in respect of procurement of export orders outside India, the appellant was not obliged to deduct any tax on the commission so paid. 2.4.13 Similarly, in a recent decision in the case of Gujarat Reclaim & Rubber Products vs. ACIT, (2013) 35 taxmann.com 587 (Mum- Trib) vide their order dated 19-04-2013, Hon'ble ITAT Mumbai Bench has held as under: "Section 9, read with section 40(a)(i) and 195 of the I. T.Act, 1961 - Income - Deemed to accrue or arise in India (Commission) - Assessment years 2007-08 to 2008-09 - Whether where assessee paid commission to non-resident agent outside India for services provided in foreign countries, in absence of PE of non-resident agent in India said payment would not be chargeable to' tax in India hence, no disallowance u/s. 40(a)(i) can be made - Held, yes [Para 4.6J [In favour of assessee]." 2.4.14 Earlier, the Hon'ble Bombay High Court in the case of Ceat International, 237 ITR 859 has held that commission services by a foreign agent did not impart any information concerning technical, industrial, commercial or scientific knowledge, experience or skill nor did he render any managerial, technical, consultancy service and hence commission attributable to services rendered cannot be regarded as royalty or fees for technical Services chargeable u/s. 9(1 )(vi) or (vii).
2.4.15 The Jaipur ITAT in the case of Modern Insulator Ltd (2011) 10 ITR 147 has held that non-resident agency companies have not made available any technical or managerial service and hence commission paid for such companies is a business profit and not technical services.
4 2.4.16 The Mumbai ITAT in the case of Ardeshi and Curstejee & Sons Ltd. (2008) 7 DTR 51 has held that the foreign agents right to receive the commission is acquired as and when services are rendered. Since services are rendered abroad, the right to receive the commission is consequentially acquired outside India. The accrual of Income is also outside India. Hence the commission income of foreign agent paid by Indian exporter is not chargeable to tax in India. 2.4.17 Further by way of Explanation I, clause (a) S.9(1) clarifies that in the case of a business of which all the operations are not carried out in India, the income of the business deemed under this clause to accrue or arise in India shall be only such part of the income as is reasonably attributable to the operations carried out in India. 2.4.18 Hence if no operations are carried out in India by the non- resident, then there would be no income deemed to accrue or arise in India. The income of the non- resident can be considered as deemed to accrue or arise in India only if the non- resident is having Business Connection in India.
2.4.19 The term business connection is elaborated in Explanation 2 to S. 9(1) of the Act, and is discussed in depth by the Apex Court in the case of R. O. Aggarwal & Company. (1965) 56 ITR 20. 2.4.20 The Apex Court in the case of Toshoku Ltd. (1980) 125 ITR 525 has held that the commission amounts which were earned by the non-resident assessees for services rendered outside India cannot be deemed income accrued or arisen in India. 2.4.21 The Madras ITAT in the case of Indopel Garments Pvt. Ltd. (2003) 86 ITO 102 referred the case of Toshoku Ltd. and held that where the foreign agent is merely canvassing orders outside India and no service is rendered by it within the taxable territory, the amount of sales commission was not liable to tax in India. The foreign agent does not have any Business Connection in India and hence his income is not deemed to accrue or arise in India. 2.4.22 In the case of Ind Telesofi Pvt. Ltd (2004) 267 ITR 725, the Authority for Advance Rulings held that commission and retainer fees received by non resident agent from Indian exporters is not taxable in India. In the said case, assessee was engaged in the business of providing software solutions for telecom industry. It entered into agreement with three non- residents from three different countries viz . France, Canada and USA, for securing business from outside India. The assessee agreed to pay retainer fees and commission to non resident agents. In absence of the non resident agents having any Business Connection in India, it was held that the income of the non residents was not taxable in India.
5 2.4.23 ITAT in Allied Nippon Limited (Oel-Trib) the facts were that the export commission was paid to the non-resident who rendered the services outside India for the purpose of procuring the order and pursuing the payment from the foreign buyer. It was represented that since no services were rendered in India, the income of the foreign agent to whom the commission was paid did not accrue or arise in India, therefore, the assessee was not liable to deduct tax at source. Consequently, the disallowance under Section 40(a)(i) is not called for. The ITAT relying on DCIT vs Eon Technology Pvt. Ltd. 46 SOT 323 held in favour of the assessee. 2.4.24 In view of the above factual and legal analysis, I have no hesitation in holding that the export commission paid outside India for services rendered outside India was not liable for deduction of tax and consequently, no disallowance should be made towards the same. In any case, the Ld. AO has not doubted the veracity of the payment. Accordingly, ground Nos 1 to 3 are allowed.
It is clear from the order of the CIT(A) that after relying on the various judicial pronouncements including Hon’ble Supreme Court and Mumbai Tribunal, the CIT(A) found that export commission paid outside India on service rendered outside India was not liable to deduction of tax at source, consequently no disallowance is warranted.
We have carefully gone through the orders of authorities below and found that issue is squarely covered by the various decisions of Hon’ble Supreme Court, High Court and various Tribunal as discussed by CIT(A) in his order. Ld. DR also fairly conceded that issue is covered by various orders of the Tribunal, High Court and Hon’ble Supreme Court as discussed by CIT(A). Accordingly, we do not find any reason to interfere in the order of CIT(A) for deleting the disallowance made on account of export commission paid without deduction of tax at source.
In the assessment year 2009-2010 & 2010-2011, the revenue has also taken a ground with regard to deleting disallowance on account of mark to market loss of Rs.7,71,555/-.
We have gone through the orders of authorities below and found that the AO has disallowed Rs.7,71,555/- out of foreign exchange loss on account of sundry creditors outstanding as on 31-03-2009. During the appellate proceedings, the assessee submitted an additional evidence which was forwarded to the Ld. AO and after verification, the same has been accepted by her in her Remand Report dated 23-10-2013 which reads as under: "In this case, the assessment order U/s. 143(3) of the I. T. Act, 1961 had been passed on 30.12.2011 after determining total income at Rs.2,43,86,380/-. During the assessment proceeding The A. O. while assessing the income at Rs. 2,43,86,380/- disallowed Rs. 7,71,555/- loss on account of sundry creditors. The AO has added Rs.1,01,42,806/- for payment to the non-resident without deducting of the TDS, 1,06,908/- for payment of legal and professional to Mr. Vishal J. Kapoor without deducting the TDS and Rs. 34,775/- on account of patty cash expense. During the assessment proceedings, the assessee vide order sheet dtd. 21. 11.2011 was asked to provide details of foreign exchange losses claimed. The AR appeared on 31.12.2011 and submitted the details. However, the AR failed to furnish the supportive details regarding foreign exchange loss on account of sundry creditors. As per direction given in the letter referred above, the assessee vide letter dated 22.07.2013 was given an opportunity to be heard and submit the relevant details documents supporting his claim. In response to the said letter, the assessee has not submitted any new details. On going through the details submitted by the assessee during the appellate proceeding, it is found that the assessee has filed details of foreign exchange loss on sundry creditors amounting to Rs.7,71,555/- as an additional evidence (pg. 103 to 125 of details submitted in your office) and explained the same. The remaining details has been already submitted by the assessee during the assessment proceedings and there is no additional evidence submitted with regard to other issues. In view of the above facts, the appeal may kindly be decided on merits.