AJAY SHARMA, NEW DELHI V. ITO, WARD- 28(4), NEW DELHI

ITA 5084/DEL/2017

• Counselvise Citation: [2017] 127 COUNSELVISE.COM (IT) 3830 (ITAT-DELHI)
• Duration Of Justice: 2 month(s) 17 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 26-10-2017
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: A
• Assessment Year: 2013-2014
• Appeal Filed On: 08-08-2017
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: R C DANDAY
• Assessee Lawyers: S KRISHNAN
• Keywords: Opportunity of being heard; Services rendered outside India; Deemed to accrue or arise in india; Permanent establishment

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH : A , NEW DELHI BEFORE SH. AMIT SHUKLA , JUDICIAL M EMBER AND SH. O.P. KANT , ACCOUNTANT MEMBER ITA NO. 5084 /DE L/ 2017 ASSESSMENT YEAR : 2013 - 14 SH. AJAY SHARMA, SHOP NO. 13 CSC, A - BLOCK, NEW FRIENDS COLONY, NEW DELHI VS. INCOME TAX OFFICER, WARD - 28(4), NEW DELHI PAN : AABPS3083Q (APPELLANT) (RESPONDENT) APPELLANT BY SH. S. KRISHNAN, ADV. RESPONDENT BY SH. R.C. DANDAY, SR.DR DATE OF HEARING 05.10.2017 DATE OF PRONOUNCEMENT 26.10.2017 ORDER PER O.P. KANT , A. M. : THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST ORDER DATED 29/06/2017 PASSED BY THE COMMISSIONER OF INCOME T AX (A PPEALS) - 10, NEW DELHI [IN SHORT THE CIT(A) ] RAISING FOLLOWING GROUNDS: 1 . ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW THE LEARNED CIT(A) ERRED IN CONFIRMING THE DISALLOWANCE MADE U/S. 40(A)(IA) IN RESPECT OF RS.31,61,046/ - PAD AS COMMISSION ON SALES. 2 . ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW THE LEARNED CIT(A) ERRED IN CONFIRMING THE DISALLOWANCE OF RS.32,663/ - FROM CREDIT CARD EXPENSES, ON ERRONEOUS CONSIDERATIONS. 3 . ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW THE LE ARNED CIT(A) ERRED IN CONFIRMING AD - HOC DISALLOWANCES MADE BY THE ASSESSING OFFICER @ 10% OF TELEPHONE, INSURANCE, BUSINESS 2 ITA NO . 5084/DEL/2017 PROMOTION & VEHICLE MAINTENANCE EXPENSES, WITHOUT BRINGING ON RECORD A SINGLE INSTANCE OF PERSONAL EXPENDITURE OR REFERRING TO ANY E VIDENCE IN THIS REGARD. 2. THE FACTS IN BRIEF OF THE CASE ARE THAT THE ASSESSEE , AN INDIVIDUAL, WAS ENGAGED IN MANUFACTURING AND EXPORT OF APPARELS DURING THE YEAR UNDER CONSIDERATION. THE ASSESSEE FILED RETURN OF INCOME ON 29/09/2013 DECLARING TOTAL IN COME OF RS.19,06,490/ - . THE CASE OF THE ASSESSEE WAS SELECTED FOR SCRUTINY AND NOTI CE UNDER SECTION 143(2) OF THE INCOME - TAX ACT, 1961 (IN SHORT THE ACT ) WAS ISSUED AND COMPLIED WITH. THE ASSESSMENT WAS COMPLETED ON 15/03/2016 AND T OTAL INCOME WAS ASSESS ED AT RS. 51,68,376/ - AFTER MAKING CERTAIN ADDITIONS. AGGRIEVED , THE ASSESSEE FILED APPEAL BEFORE THE LD. CIT - ( A ) , WHO UPHELD THE ADDITIONS MADE BY THE ASSESSING OFFICER. AGGRIEVED , THE ASSESSEE IS IN APPEAL BEFORE THE TRIBUNAL RAISING THE GROUNDS AS REPROD UCED ABOVE. 3. THE GROUND NO. 1 OF THE APPEAL RELATES TO DISALLOW ANCE MADE UNDER SECTION 40(A)(I ) OF THE ACT IN RE SPECT OF COMMISSION PAID OF RS. 31,61,046/ - ON SALES TO A NON - RESIDENT INDIVIDUAL , SITUATED OUTSIDE INDIA. 3.1 DURING ASSESSMENT PROCEEDING, THE ASSESSING OFFICER OBSERVED THAT NO TAX WAS D EDUCTED AT SOURCE ON PAYMENT OF RS.31, 6 1, 046/ - DEBITED IN THE PROFIT AND LOSS ACCOUNT TOWARDS PROCESSING CHARGES AND COMMISSION EXPENSES TO FOREIGN NATIONAL IN TERMS OF SECTION 1 95 OF THE ACT. ON THE QUERY RAISED BY THE ASSESSING OFFICER, AS WHY THE TAX WAS NOT DED UCTED AT SOURCE ON SUCH PAYMENT , THE AUTHORIZED REPRESENTATIVE OF THE ASSESSEE SUBMITTED THAT COMMISSION WAS PAID FOR PROCURING ORDERS FROM ABROAD AND PROVISIONS OF SECT ION 9 OF THE ACT WERE NOT APPLICABLE TO THE COMMISSION INCOME OF THE NON - RESIDENT AS IT DID NOT CARRY OUT ANY BUSINESS OPERATIONS IN INDIA AND SERVICES RENDERED OUTSIDE INDIA AND , THEREFORE , NO T AX WAS DEDUCTED AT S OURCE (TDS) ON THE REMITTANCE 3 ITA NO . 5084/DEL/2017 MADE TO THE FOREIGN AGENTS FOR THE SERVICES RENDERED BY THEM OUTSIDE INDIA. ON THE BASIS OF BRIEF DESCRIPTION OF THE NOTE GIVEN BY THE A UTHORIZED R EPRESENTATIVE, THE ASSESSING OFFICER CONCLUDED THAT THE ASSESSEE MADE PAYMENT TO THE NON - RESIDENT FOR EXPLORING BUSINES S OPPORTUNITIES IN ABROAD, EXPLORING OVERSEAS MARKET AND TO REALIZE THE SALE CONSIDERATION WHICH TANTAMOUNT TO FEE FOR CONSULT ANCY SERVICES . ACCORDING TO THE ASSESSING OFFICER, THE ASSESSEE OBTAINED PROFESSIONAL ADVICE AND SERVICES IN A SPECIALIZED FIELD, WHICH FALLS UNDER THE FEE FOR CONSULT ANCY SERVICES AND AS PER SECTION 9(1 )(VII) READ WITH EXPLANATION - 2, THE INCOME OF THE NON - RESIDENT IN RESPECT OF PAYMENT OF FEE FOR TECHNICAL SERVICES IS DEEMED TO ACCRUE OR ARISE IN INDIA AS PER CLAUSE (V), CLAUSE (VI) OR CLAUSE (VII) OF SUB - SECTION 1 AND SHALL BE INCLUDED IN THE TOTAL INCOME OF THE NON - RESIDENT, WHETHER OR NOT - (I) THE NON - RESIDENT HAS A RESIDENCE OR PLACE OF BUSINESS OR BUSINESS CONNECTION IN INDIA ; OR (II) THE NON - RESIDENT HAS RENDERED SE RVICES IN INDIA. ACCORDINGLY, THE AO HELD THAT THE ASSESSEE WAS REQUIRED TO DEDUCT TAX AT SOURCE WHILE MAKING PAYMENT TOWARDS FEE FOR CONSULT ANCY SERVICES RENDERED TO THE NON - RESIDENT AND DUE TO NON - DEDUCTION OF TAX AT SOURCE , THE PAYMENT WAS DISALLOWABLE UNDER SECTION 40(A)(I ) OF THE ACT. 3.2 THE LD. CIT - (A) CONFIRMED THE DISALLOWANCE WITH FOLLOWING OBSERVATIONS: IT IS BEING CLAIMED BY THE LD. AR THAT THE PAYMENT IN QUESTION HAS BEEN MADE TO NON - RESIDENT AGENT OUTSIDE INDIA FOR THE SERVICES RENDERED OUTSIDE INDIA AND ANY PAYMENT MADE IN CONTEXT OF ABOVE IS NOT CHARGEABLE TO TAX IN INDIA AS THE AGENT IS A NON - RESID ENT, OPERATING HIS BUSINESS ACTIVITY OUTSIDE INDIA, SERVICES HAVE BEEN PROVIDED OUTSIDE INDIA AND AGENT DOES NOT HAVE ANY PERMANENT ESTABLISHMENT IN INDIA. IN VIEW OF THESE FACTS, IT IS BEING CLAIMED THAT APPLICABILITY OF TDS PROVISIONS ARE NOT APPLICABLE IN THE CASE OF THE APPELLANT. FURTHER TO SUBSTANTIATE HIS CLAIM, LD. AR HAS SUBMITTED ON THE BASIS OF EXPLANATION 2 TO SECTION 9(1)(VII) OF THE IT ACT THAT FEES FOR TECHNICAL 4 ITA NO . 5084/DEL/2017 SERVICES MEANS ANY CONSIDERATION FOR THE RENDERING OF ANY MANAGERIAL, TECHNICAL O R CONSULTANCY SERVICES ONLY. PLACING RELIANCE ON VARIOUS JUDICIAL PRONOUNCEMENTS, IT IS BEING CLAIMED THAT COMMISSION PAID TO NON - RESIDENT FOREIGN AGENT FOR PROCURING EXPORT ORDERS CANNOT BE EQUATED WITH EITHER TO RENDERING OF TECHNICAL SERVICES OR MANAGER IAL OR CONSULTANCY SERVICES. ALTHOUGH APPELLANT EXPLAINED THAT THE PAYMENT RECEIVED BY FOREIGN NATIONAL IS A COMMISSION PAYMENT TO PROCURE ORDERS IN ABROAD BUT NO DOCUMENTARY EVIDENCE HAS BEEN PROVIDED EVEN DURING THE APPELLATE STAGE, THE BASIS ON WHICH I T CAN BE HELD THAT THE SCOPE OF WORK OF THE FOREIGN NATIONAL WAS LIMITED ONLY TO PROCURE ORDERS FOR THE APPELLANT AND DOES NOT REQUIRE ANY SPECIALIZED SERVICES IN THE NATURE AS MANAGERIAL, TECHNICAL AND CONSULTANCY IN NATURE. THE FACT CANNOT BE DENIED THAT TO PROCURE ORDERS SPECIAL TECHNICAL KNOWLEDGE IS ALSO REQUIRED TO MAKE A BREAKTHROUGH TO PROCURE ORDERS FROM THE INTERNATIONAL MARKET, THE BASIS ON WHICH A PRODUCT CAN BE LAUNCHED. FOR THE SAME SPECIFIC SPECIALIZATION IS ALSO REQUIRED TO STUDY THE MARKET WHICH IS A PRE - CONDITION FOR ANY BUSINESSMEN TO EXPLORE BUSINESS OPPORTUNITIES ABROAD. AND PROCURE ORDERS. IN THE ABSENCE OF ANY DOCUMENTARY EVIDENCE PROVIDED BY THE LD. AR TO CONTROVERT THE FINDING OF THE AO, IT IS WORTHWHILE TO MENTION HERE THAT TO EXPLO RE BUSINESS OPPORTUNITIES ON BEHALF OF THE APPELLANT TECHNICAL EXPERTISE IS REQUIRED WITHOUT WHICH NO PERSON CAN STUDY THE MARKET AND GIVE ADVICE TO LAUNCH A PRODUCT IN AN ALIEN COUNTRY THE BASIS ON WHICH BUSINESSMEN COMMENCES HIS BUSINESS. MERE PROCURING A ORDER CANNOT FETCH A SUBSTANTIAL AMOUNT OF PAYMENT TO THE EXTENT OF RS.31,61,046/ - . WITHOUT TECHNICAL, MANAGERIAL SUPPORT, ASSESSEE CANNOT REACH TO A LOGICAL CONCLUSION THAT IT IS ADVISABLE FOR HIM TO VENTURE INTO BUSINESS IN FOREIGN COUNTRY. THEREFORE, CONSIDERING THE ABOVE FACTUAL MATRIX OF THE CASE, I AM OF THE CONSIDERED VIEW THAT IN THE ABSENCE OF ANY DOCUMENTARY EVIDENCE DEFINING THE SCOPE OF WORK OF THE PERSON TO WHOM THE PAYMENT WAS MADE FOR THE ABOVE SERVICES FALLS IN THE CATEGORY OF FEES FOR TE CHNICAL SERVICES WHICH IS TAXABLE AS PER THE PROVISIONS OF SECTION 9(1 )(VII) OF THE ACT. FURTHER AS FAR AS RELIANCE PLACED ON VARIOUS JUDICIAL PRONOUNCEMENTS BY THE APPELLANT, IT IS NOTICED THAT APPELLANT HAS FAILED TO EXPLAIN AND SUBSTANTIATE THAT ITS FA CTS ARE SIMILAR AND IDENTICAL TO THOSE CASES. IN THE ABSENCE OF ANY DOCUMENTARY EVIDENCE, ASSESSEE HAS FAILED TO JUSTIFY THAT PAYMENT MADE TO THE FOREIGN NATIONAL WAS COMMISSION IN NATURE WHEREAS IN ALL THE CASES RELIED UPON THE ISSUE INVOLVED WAS TAXABILI TY OF COMMISSION INCOME IN THE HANDS OF FOREIGN 5 ITA NO . 5084/DEL/2017 NATIONAL PAID IN FOREIGN COUNTRY. HENCE, NO INTERFERENCE IS CALLED FOR TO THE FINDING GIVEN BY THE AO THAT AMOUNT OF RS.31,61,046/ - IS NOTHING BUT FEES FOR CONSULTANCY SERVICES, WHICH HAS BEEN CLAIMED AS COMM ISSION PAYMENT, WITHOUT ANY CORROBORATIVE DOCUMENTARY EVIDENCE. ACCORDINGLY, THE ADDITION MADE BY THE AO IS UPHELD. 3.3 BEFORE US , THE L D. COUNSEL FILED A PAPER BOOK CONTAI NING PAGES 1 TO 133 . THE PAPER BOOK CONTAINS DETAIL OF PAYMENT, COPIES OF SHIPPI NG BILLS, INVOICE RAISED ETC. THE LD. COUNSEL SUBMITTED THAT NO SPECIFIC DOCUMENTS TO HOLD THAT INCOME WAS IN THE NATURE OF FEE FOR MANAGERIAL, TECHNICAL AND CONSULT ANCY , WERE ASKED BY THE ASSE SSING OFFICER. ACCORDING TO HIM, THE ASSESSEE EXPLAINED NATURE OF SERVICES RENDERED BY THE COMMISSION AGENT AND ONUS WAS ON THE R EVENUE TO ESTABLISH THAT IT WAS IN THE NATURE OF FEE FOR SERVICES IN THE NATURE OF CONSULT ANCY REQUIRING SPECIALIZED KNOWLEDGE. 3.4 THE LD. SR. DR, ON THE OTHER HAND , RELIED ON THE ORDER OF THE LOWER AUTHORITIES AND SUBMITTED THAT THE ASSESSEE WAS LIABLE FOR DEDUCTING TAX AT SOURCE ON THE PAYMENTS. HOWEVER , HE SUBMITTED THAT ISSUE MAY BE RESTORED TO THE FILE OF THE ASSESSING OFFICER FOR RE - EXAMINATION IN THE LIGHT OF T HE AGREEMENT BETWEEN THE ASSESSEE AND THE FOREIGN AGENT TO WHOM AMOUNT HAS BEEN PAID. 3.5 IN REJOINDER, THE L D. COUNSEL ALSO CONCURRED WITH THE PROPOSAL OF THE SR. DR FOR RESTORING THE MATTER TO THE FILE OF THE ASSESSING OFFICER. 3.6 WE HAVE HEARD THE R IVAL SUBMISSION AND PERUSED THE RELEVANT MATERIAL ON RECORD. IN THE FACTS OF THE CASE, THE AGREEMENT BETWEEN THE ASSESSEE AND THE AGENT AND ANY DOCUMENTARY EVIDENCE SUPPORTING THE SERVICES RENDERED ARE CRITICAL FOR DECIDING , WHETHER THE SERVICES RENDERED A RE IN THE NATURE OF PURELY COMMISSION SERVICES OR IN THE NATURE OF CONSULT ANCY SERVICES . THE LOWER AUTHORITIES HAVE NOT EXAMINED THE SERVICES RENDERED BY THE FOREIGN AGENT IN THE LIGHT OF REQUIRED DOCUMENTARY EVIDENCES . IN VIEW OF THE FACT S AND CIRCUMSTANCES OF THE 6 ITA NO . 5084/DEL/2017 CASE , WE ARE OF THE OPINION THAT THE ISSUE OF HOLDING THE SERVICES RENDERED BY THE AGENT AS FEE FOR CONSULT ANCY SERVICES , NEED RE - EXAMINATION BY THE ASSESSING OFFICER. ACCORDINGLY, WE RESTORE THE MATTER TO THE FILE OF THE ASSESSI NG OFFICER FOR RE - EXAMINATION OF THE ISSUE IN DISPUTE. THE ASSESSEE SHALL BE FREE TO SUBMIT ANY EVIDENCE (S) TO SUBSTANTIATE ITS CLAIM THAT THE PAYMENTS MADE ARE PURELY IN THE NATURE OF COMMISSION AND NOT FALLING UNDER FEE FOR CONSULT ANCY SERVICES LIABLE T O BE TAXED IN THE HAND S OF FOREIGN AGENT IN TERMS OF S ECTION 5 READ WITH EXPLANATION - 2 TO SECTION 9(1)(VII) OF THE ACT. THE ASSESSEE SHALL BE PROVIDED SUFFIC IENT OPPORTUNITY OF BEING HEARD . THE GROUND NO.1 OF THE APPEAL IS ACCORDINGLY ALLOWED FOR STATISTI CAL PURPOSES. 4. THE GROUND NO. 2 RELATES TO DISALLOWANCE OF RS.32, 663/ - OUT OF CREDIT CARD EXPENSES. THE LD. CIT - (A) ADJUDICATED THE ISSUE AS UNDER: IN GROUND NO.4, THE ISSUE INVOLVED IS ADDITION OF RS.32,663/ - MADE BY THE AO ON ACCOUNT OF DIFFERENCE BY MAKING PAYMENT THROUGH CREDIT CARDS IN THE MONTH OF APRIL, 2014 WHICH WERE NOTICED FROM THE DETAILS SUBMITTED BY THE ASSESSEE DURING THE COURSE OF ASSESSMENT PROCEEDINGS. DURING THE APPELLATE PROCEEDINGS, LD. AR HAS PROVIDED A COPY OF STATEMENT DT.07.04 ,2013 FOR THE TRANSACTIONS DURING THE MONTH OF MARCH, 2013 AND ON THE BASIS OF THE SAME IT IS BEING EXPLAINED THAT NO DISALLOWANCE IS CALLED FOR. HOWEVER, ONGOING THROUGH THE STATEMENT FILED FOR THE MONTH OF APRIL, 2013, THE LD. AR HAS FAILED TO RECONCILE THE DIFFERENCE POINTED OUT BY THE AO OF RS.32,663/ - AT THE TIME OF ASSESSMENT PROCEEDING. MERE FILING OF A STATEMENT DOES NOT MAKE IT A SACROSANCT STATEMENT, THE BASIS ON WHICH IT CAN BE HELD THAT ASSESSEE HAS RECONCILE THE DIFFERENCE AS POINTED OUT BY THE AO. HENCE, THE ADDITION MADE BY THE ASSESSING OFFICER IS UPHELD AND THE GROUND OF APPEAL TAKEN BY THE APPELLANT IS DISMISSED. 4.1 B OTH THE PARTIES AGREED THAT THE ISSUE IN DISPUTE NEED TO BE RESTORE D TO THE FILE OF THE ASSESSING OFFICER FOR RECONCILING THE DIFFERENCE POINTED OUT BY THE ASSESSING OFFICER. 7 ITA NO . 5084/DEL/2017 4.2 WE HAVE HEARD THE PARTIES ON THE ISSUE IN DISPUTE . IN VIEW OF THE FACTS OF THE CASE, WE FEEL IT APPROPRIATE TO RESTORE THE MATTER TO THE FILE O F THE ASSESSING OFFICER FOR CONSIDERATION AFRESH. THE ASSESSEE SHALL BE AFFORDED SUFFICIENT OPPORTUNITY OF BEING HEARD. THE GROUND NO. 2 OF THE APPEAL IS ALSO ALLOWED FOR STATISTICAL PURPOSES. 4.3 THE GROUND NO. 3 WAS NOT PRESSED BEFORE US; ACCORDINGLY , I T IS DISMISSED AS INFRUCTUOUS. 5. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED PARTLY FOR STATISTICAL PURPOSES. THE DECISION IS PRONOUN CED IN THE OPEN COURT ON 2 6 T H OCT . , 201 7 . S D / - S D / - ( AMIT SHUKLA ) ( O.P. KANT ) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 2 6 T H OCTOBER , 201 7 . RK / - (D.T.D) COPY FORWARDED TO: 1 . APPELLANT 2 . RESPONDENT 3 . CIT 4 . CIT(A) 5 . DR ASST. REGISTRAR, ITAT, NEW DELHI