GE India Technology Centre Pvt. Ltd. v. CIT

United Home Entertainment P.Ltd, Mumbai vs. ADIT (It) 2(2), Mumbai

The appeals are allowed in terms of our directions as given above

Bench: Shri Amit Shukla () & Shri Ashwani Taneja ()

…t made by the assessee to Intelsat is not taxable as royalty in India and, therefore, assessee was not required to deduct TDS or withhold any tax on such payments. This proposition has been upheld by Hon 'ble Supreme Court in the case of GE Technology Centre, 327 ITR 456. 7. So far as the issue relating to FTS is concerned, we find that, this Tribunal in B4u International Holdings (supra) on similar payment made to Panamsat, it was held that they do not satisfy the test of “make available” as enshrined in Article 12(3) in Indo-US-DTAA and thus, the said payment cannot be held to be taxable as being for technical…

United Home Entertainment P.Ltd, Mumbai vs. ADIT (It) 2(2), Mumbai

The appeals are allowed in terms of our directions as given above

Bench: Shri Amit Shukla () & Shri Ashwani Taneja ()

…t made by the assessee to Intelsat is not taxable as royalty in India and, therefore, assessee was not required to deduct TDS or withhold any tax on such payments. This proposition has been upheld by Hon 'ble Supreme Court in the case of GE Technology Centre, 327 ITR 456. 7. So far as the issue relating to FTS is concerned, we find that, this Tribunal in B4u International Holdings (supra) on similar payment made to Panamsat, it was held that they do not satisfy the test of “make available” as enshrined in Article 12(3) in Indo-US-DTAA and thus, the said payment cannot be held to be taxable as being for technical…

United Home Entertainment P.Ltd, Mumbai vs. ADIT (It) 2(2), Mumbai

The appeals are allowed in terms of our directions as given above

Bench: Shri Amit Shukla () & Shri Ashwani Taneja ()

…t made by the assessee to Intelsat is not taxable as royalty in India and, therefore, assessee was not required to deduct TDS or withhold any tax on such payments. This proposition has been upheld by Hon 'ble Supreme Court in the case of GE Technology Centre, 327 ITR 456. 7. So far as the issue relating to FTS is concerned, we find that, this Tribunal in B4u International Holdings (supra) on similar payment made to Panamsat, it was held that they do not satisfy the test of “make available” as enshrined in Article 12(3) in Indo-US-DTAA and thus, the said payment cannot be held to be taxable as being for technical…

ACIT 16(3), Mumbai vs. S.K. Age Exports, Mumbai

In the result all appeals of the revenue are dismissed

Bench: Shri R.C.Sharma, Am & Shri Amarjit Singh, Jm आमकय अऩीर सं./Ita Nos.3348,3349&5445/Mum/2014 (नििाारण वषा / Assessment Year :2009-10, 2010-11 & 2011-12) Acit-16(3), Mumbai-400007 Vs. M/S S.K.Age Exports, 3-A, Shivsagar Estate, Dr. Annie Besant Road, Worli, Mumbai-400018 स्थामी रेखा सं./ जीआइआय सं./ Pan/Gir No. : Aaafs 4534 R (अऩीराथी /Appellant) (प्रत्मथी / Respondent) .. याजस्व की ओर से /Revenue By : Shri Vivek Batra ननधाारयती की ओर से /Assessee By : Shri Hari Raheja सुनवाई की तायीख / Date Of Hearing : 07/09/2016 घोषणा की तायीख/Date Of Pronouncement 25/11/2016 आदेश / 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. 2. 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 & 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 & As Such No Tax Was Required To Be Deducted U/S. 195 Of The Act. The Non-Resident Did Not Have Any Business Connection Or Dependent Agent In India & 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 & Hence, No Tax Was Deductible Therefrom. 2.4.7 I Am Fortified In The Above View By The Decision Of The Hon'Ble

…se, 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…

ACIT 16(3), Mumbai vs. S.K. Age Exports, Mumbai

In the result all appeals of the revenue are dismissed

Bench: Shri R.C.Sharma, Am & Shri Amarjit Singh, Jm आमकय अऩीर सं./Ita Nos.3348,3349&5445/Mum/2014 (नििाारण वषा / Assessment Year :2009-10, 2010-11 & 2011-12) Acit-16(3), Mumbai-400007 Vs. M/S S.K.Age Exports, 3-A, Shivsagar Estate, Dr. Annie Besant Road, Worli, Mumbai-400018 स्थामी रेखा सं./ जीआइआय सं./ Pan/Gir No. : Aaafs 4534 R (अऩीराथी /Appellant) (प्रत्मथी / Respondent) .. याजस्व की ओर से /Revenue By : Shri Vivek Batra ननधाारयती की ओर से /Assessee By : Shri Hari Raheja सुनवाई की तायीख / Date Of Hearing : 07/09/2016 घोषणा की तायीख/Date Of Pronouncement 25/11/2016 आदेश / 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. 2. 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 & 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 & As Such No Tax Was Required To Be Deducted U/S. 195 Of The Act. The Non-Resident Did Not Have Any Business Connection Or Dependent Agent In India & 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 & Hence, No Tax Was Deductible Therefrom. 2.4.7 I Am Fortified In The Above View By The Decision Of The Hon'Ble

…se, 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…

ACIT 16(3), Mumbai vs. S.K. Age Exports, Mumbai

In the result all appeals of the revenue are dismissed

Bench: Shri R.C.Sharma, Am & Shri Amarjit Singh, Jm आमकय अऩीर सं./Ita Nos.3348,3349&5445/Mum/2014 (नििाारण वषा / Assessment Year :2009-10, 2010-11 & 2011-12) Acit-16(3), Mumbai-400007 Vs. M/S S.K.Age Exports, 3-A, Shivsagar Estate, Dr. Annie Besant Road, Worli, Mumbai-400018 स्थामी रेखा सं./ जीआइआय सं./ Pan/Gir No. : Aaafs 4534 R (अऩीराथी /Appellant) (प्रत्मथी / Respondent) .. याजस्व की ओर से /Revenue By : Shri Vivek Batra ननधाारयती की ओर से /Assessee By : Shri Hari Raheja सुनवाई की तायीख / Date Of Hearing : 07/09/2016 घोषणा की तायीख/Date Of Pronouncement 25/11/2016 आदेश / 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. 2. 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 & 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 & As Such No Tax Was Required To Be Deducted U/S. 195 Of The Act. The Non-Resident Did Not Have Any Business Connection Or Dependent Agent In India & 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 & Hence, No Tax Was Deductible Therefrom. 2.4.7 I Am Fortified In The Above View By The Decision Of The Hon'Ble

…se, 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…

United Home Entertainment P.Ltd, Mumbai vs. ADIT 2(2), Mumbai

In the result, all the appeals of the assessee are treated as allowed

Bench: Shri Amit Shukla & Shri Ashwani Taneja

…nt made by the assessee to Intelsat is not taxable as royalty in India and, therefore, assessee was not required to deduct TDS or withhold any tax on such payments. This proposition has been upheld by Hon’ble Supreme Court in the case of GE Technology Centre, 327 ITR 456. 9. So far as the issue relating to FTS is concerned, we find that, this Tribunal in B4U International Holdings (supra) on similar payment made to Panamsat, it was held that they do not satisfy the test of “make available” as enshrined in Article 12(3) in Indo-US-DTAA and thus, the said payment cannot be held to be taxable as being for technical…

ACIT 25(1), Mumbai vs. G Shoes Exports, Mumbai

In the result, the assessee’s appeal is partly allowed

Bench: Shri Sanjay Arora, Am & Shri Amarjit Singh, Jm आयकर अपील सं./I.T.A. No. 5736/Mum/2014 ("नधा"रण वष" / Assessment Year: 2010-11) G. Shoes Exports Asst. Cit-25(1)/Cit City 25 बनाम/ 2Nd Floor, Bandra Kurla Complex, 1, Hitex Industrial Estate, S. V. Road, Dahisar (E), Bandra (E), Mumbai-400 051 Vs. Mumbai-400 068 "थायी लेखा सं./जीआइआर सं./Pan/Gir No. Aacfg 5376 P (Assessee) : (Revenue) & आयकर अपील सं./I.T.A. No. 6209/Mum/2014 ("नधा"रण वष" / Assessment Year: 2010-11) बनाम/ Asst. Cit-25(1), G. Shoes Exports Mumbai-400 051 Mumbai-400 068 Vs. (Revenue) : (Assessee) Assessee By : Shri Radheshyam Jain : Shri Airiju Jaikaran Revenue By सुनवाई क" तार"ख / : 24.06.2016 Date Of Hearing घोषणा क" तार"ख / : 24.10.2016 Date Of Pronouncement आदेश / O R D E R Per Sanjay Arora, A. M.: These Are Cross Appeals, I.E., By The Assessee & The Revenue, Directed Against The Order By The Commissioner Of Income Tax (Appeals)-35, Mumbai (‘Cit(A)’ For Short) Dated 16.7.2014, Partly Allowing The Assessee’S Appeal Contesting It’S Assessment U/S.143(3) Of The Income Tax Act, 1961 (‘The Act’ Hereinafter) For The Assessment Year (A.Y.) 2010-11 Vide Order Dated 20.3.2013. 2

…आयकर अपील"य अ"धकरण “जी” "यायपीठ मुंबई म"। IN THE INCOME TAX APPELLATE TRIBUNAL “G” BENCH, MUMBAI BEFORE SHRI SANJAY ARORA, AM AND SHRI AMARJIT SINGH, JM आयकर अपील सं./I.T.A. No. 5736/Mum/2014 ("नधा"रण वष" / Assessment Year: 2010-11) G. Shoes Exports Asst. CIT-25(1)/CIT City 25 बनाम/ 2nd Floor, Bandra Kurla Complex, 1, Hitex Industrial Estate, S. V. Road, Dahisar (E), Bandra (E), Mumbai-400 051 Vs. Mumbai-400 068 "थायी लेखा सं./जीआइआर सं./PAN/GIR No. AACFG 5376 P (Assessee) : (Revenue) & आयकर अपील सं./I.T.A. No. 6209/Mum/2014 ("नधा"रण वष" / Assessment Year: 2010-11) बनाम/ Asst. CIT-25(1), G. Shoes Exports Mumbai-…

DCIT 7(2), Mumbai vs. Rediffuison Dentsu Young & Rubicam P.Ltd, Mumbai

…he assessee, and the assessment order, the FAA held that the obligation to deduct tax at source would arise only excess payment was chargeable under the Act as per the provisions of section 4, 5 and 9 of the Act.He referred to the case of GE India Technology (327 ITR 456) and held that merely because a person had not deducted tax at source from remittance brought it could not be inferred that the person making remittances had committed a mistake in discharging his duties with regard to withholding of taxes, that such obligation would arise only when the recipient had a tax liability in India. After going through…