ACIT, CHENNAI V. FL Smidth Pvt. Ltd., CHENNAI

ITA 778/CHNY/2013

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 4312 (ITAT-CHENNAI)
• Duration Of Justice: 4 year(s) 1 month(s) 10 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 02-06-2017
• Appeal Filed By: Department
• Bench Allotted: B
• Next Hearing Date: 01-05-2017
• Assessment Year: 2008-2009
• Appeal Filed On: 22-04-2013
• Court: TRIBUNAL
• Department Lawyers: SUPRIYO PAL
• Assessee Lawyers: G BASKAR
• Keywords: Depreciation; Deemed to accrue or arise in india; Permanent establishment; Capital receipt

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH : CHENNAI , ! ' ! # . $% & '( BEFORE SHRI CHANDRA POOJARI, ACCOUNTANT MEMBER AND SHRI DUVVURU RL REDDY , JUDICIAL MEMBER ./ I.T.A.NOS.655 & 656/MDS./2013 / ASSESSMENT YEARS : 2008-09 & 2008-09 M/S.FLSMIDTH MINERALS PVT LTD., (NOW MEGED WITH FLSMIDTH PVT LTD.) 34,EGATOOR-KELAMBAKKAM, (RAJIV GANDHI SALAI), OLD MAHABALIPURAM ROAD, CHENNAI 600 103. VS. THE DCIT, COMPANY CIRCLE II(1), CHENNAI -34. [PAN AAACF 4997 N ] ( )* / APPELLANT) ( +,)* /RESPONDENT) ./ I.T.A.NO.778/MDS./2013 / ASSESSMENT YEAR : 2008-09 THE DCIT, COMPANY CIRCLE II(1), CHENNAI -34. VS. M/S.FLSMIDTH MINERALS PVT LTD., (NOW MEGED WITH FLSMIDTH PVT LTD.) 34,EGATOOR-KELAMBAKKAM, (RAJIV GANDHI SALAI), OLD MAHABALIPURAM ROAD, CHENNAI 600 103. [PAN AAACF 4997 N ] ( )* / APPELLANT) ( +,)* /RESPONDENT) ITA NOS.655, 656, 778/MDS/13 :- 2 -: / APPELLANT BY : MR.G.BASKAR, ADVOCATE REVENUE BY : MR.SUPRIYO PAL, JCIT, DR / DATE OF HEARING : 08 - 05 - 2017 / DATE OF PRONOUNCEMENT : 02 - 0 6 - 2017 - / O R D E R PER CHANDRA POOJARI, ACCOUNTANT MEMBER THIS CROSS APPEAL IS FILED BY THE ASSESSEE IN ITA NO.656/MDS./13 & THE REVENUE IN ITA NO.778/MDS/13 ARE DIRECTED AGAI NST THE ORDER OF THE LEARNED COMMISSIONER OF INCOME TAX(A)-I, COIMBA TORE IN APPEAL NO.714/11-12 DATED 10.01.2013 PERTAINING TO THE ASS ESSMENT YEAR 2008-09. THE OTHER APPEAL OF THE ASSESSEE IN ITA N O.655/MDS./13 IS DIRECTED AGAINST THE LEARNED COMMISSIONER OF INCOME TAX(A)-I, COIMBATORE IN APPEAL NO.716/11-12 DATED 10.01.2013 PERTAINING TO THE ASSESSMENT YEAR 2008-09. SINCE ISSUES INVOLVED IN ALL THESE CROSS APPEALS AS WELL AS ASSESSEES APPEAL ARE COMMON IN NATURE, THESE APPEALS ARE CLUBBED TOGETHER, HEARD TOGETHER, DISPO SED OFF BY THIS COMMON ORDER FOR THE SAKE OF CONVENIENCE. ITA NO.656/MDS./13 2. THE FACTS OF THE CASE FOR ASSESSMENT YEAR 2008- 09 ARE THAT THE ASSESSEE IS AN ENGINEERING ORGANIZATION, ENGAGE D IN THE BUSINESS OF DESIGN, MANUFACTURE, SUPPLY AND SUPERVISION OF E RECTION AND COMMISSIONING OF CEMENT MACHINERY, SPARES AND EQUIP MENT. THE ASSESSEE FILED RETURN OF INCOME FOR ASSESSMENT YEAR 2008-09 ON ITA NOS.655, 656, 778/MDS/13 :- 3 -: 30.09.2008, ADMITTING A TOTAL INCOME OF RS.102,34,9 8,291/-. A NOTICE U/S.143(2) WAS ISSUED ON 12.08.2009 AND THE ASSESSM ENT WAS COMPLETED U/S.143(3) OF THE ACT ON 28.12.2011. IN THE ASSESSMENT ORDER, THE AO ASSESSED THE TOTAL INCOME AT RS.105,2 0,67,100/- AFTER MAKING THE FOLLOWING DISALLOWANCES. A) DISALLOWANCE U/S.14A AMOUNTING TO RS.1,36,66,95 8/- B) DISALLOWANCE OF DEPRECIATION CLAIMED AT A HIGH ER RATE ON UPS AMOUNTING TO RS.35,91,714/-. C) DISALLOWANCE U/S.40(A)(I) FOR EXPENSES CLAIMED AS OVERSEAS COMMISSION AMOUNTING TO RS.1,13,10,135/- D) TAX CREDIT GRANTED BY THE AO WAS RS.17,505,59 8/- AS AGAINST THE CREDIT OF RS.21,840,767/- CLAIMED BY TH E ASSESSEE. E) LEVYING INTEREST U/S.234D FOR THE PERIOD FROM THE DATE OF INTIMATION U/S.143(1) TO THE DATE OF ORDER U/S.143( 3). AGAINST THIS, THE ASSESSEE WENT IN APPEAL BEFORE TH E LD.CIT(A) CHALLENGING THE ABOVE ADDITIONS. THE LD.CIT(A) HAD GIVEN A PARTIAL RELIEF TO THE ASSESSEE. NOW, THE ASSESSEE IS IN APP EAL BEFORE THE US IN ITA NO.656/MDS./2013 FOR A.Y 2008-09. 3. IN THIS APPEAL, ONLY ONE GROUND FOR OUR CONSIDE RATION IS WITH REGARD TO SUSTENANCE OF DISALLOWANCE U/S.14A OF THE ACT. 3.1 THE FACTS OF THE ISSUE RELATING TO THE GROUND RAISED BY THE ASSESSEE IS THAT IN THIS CASE THE AO DISALLOWED A S UM OF ITA NOS.655, 656, 778/MDS/13 :- 4 -: RS.1,36,66,958/- U/S.14A OF THE ACT, THOUGH THE ASS ESSEE ALREADY DISALLOWED AN AMOUNT OF RS.70,300/- TOWARDS EARNING EXEMPTED INCOME. ON APPEAL, LD.CIT(A) HAD GIVEN A PARTIAL RE LIEF TO THE ASSESSEE AND DIRECTED THE AO TO TAKE INTO ACCOUNT ONLY THE I NTEREST PORTION AND NOT THE FINANCIAL CHARGES IN TERMS OF RULE 8D(II). AGAINST THIS, THE ASSESSEE IS IN APPEAL BEFORE US. 4. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE MATERIAL ON RECORD. THE ASSESSMENT YEAR INVOLVED HEREIN IS 200 8-09. RULE-8D OF INCOME TAX RULES, 1962 WERE BROUGHT INTO RULES WITH EFFECT FROM 24.03.2008. BEING SO, IT IS NOT APPROPRIATE TO APP LY THE RULE 8D, BEING THE YEAR PRIOR TO 24.03.2008, WHEN IT WAS INSERTED IN THE LAST WEEK OF FINANCIAL YEAR 2007-08 RELEVANT TO ASSESSMENT YEAR 2008-09. WE DO FIND THAT HON'BLE JURISDICTIONAL HIGH COURT IN THE CASE OF SIMPSON & CO. LTD. VS.DCIT IN TCA NO.2621 OF 2006 (MAD HC) HAD UP HELD ESTIMATION MADE FOR EXPENDITURE ATTRIBUTABLE TO DIVIDEND INCOM E AT 2% OF MANAGERIAL EXPENSES WAS JUSTIFIED. RELEVANT PARA 2 OF THE ORDER OF HON'BLE JURISDICTIONAL HIGH COURT IS REPRODUCED HER EUNDER:- 2. LEARNED COUNSEL APPEARING FOR THE ASSESSEE AS WE LL AS LEARNED STANDING COUNSEL APPEARING FOR REVENUE SUBM ITS THAT THE ISSUE INVOLVED IN THIS TAX CASE (APPEAL) IS COV ERED BY A DECISION OF THIS COURT DATED 08.08.2012 IN T.C. (A) NO.2287 OF 2006 IN THE CASE OF M/S EID PARRY (INDIA) LIMITE D V. THE JOINT COMMISSIONER OF INCOME TAX, WHEREIN THIS COUR T POINTED OUT THAT IN THE ABSENCE OF ANY MATERIALS RE GARDING INCURRING OF EXPENDITURE, THE TRIBUNAL WAS JUSTIFIE D IN CONFIRMING THE ORDER OF THE COMMISSIONER OF INCOME TAX ITA NOS.655, 656, 778/MDS/13 :- 5 -: (APPEALS) THAT THE DEDUCTION OF 2% MANAGERIAL EXPEN SES HAD TO BE MADE WHILE CALCULATING DEDUCTION UNDER SECTIO N 80M. THUS BEING PURE QUESTION OF FACT, THERE BEING NO OT HER MATERIAL IN SUPPORT OF THE CLAIM MADE, THE ORDER OF THE TRIBUNAL WAS CONFIRMED. 5. HENCE, WE DIRECT THE AO TO DISALLOW 2% OF EXE MPTED INCOME U/S.14A OF THE ACT IN VIEW OF THE JUDGEMENT OF JURISDICTIONAL HIGH COURT IN THE CASE OF SIMPSON & CO LTD VS. DCIT IN TCA NO.2621 OF 2006 (MAD HC) 5.1 IN THE RESULT, ITA NO.656/MDS./13 IS PARTLY ALLOWED. NEXT WE TAKE UP ITA NO.655/MDS./13 (ASSESSEES APPE AL: A.Y 2008-09) 6. IN THIS APPEAL, ONLY ONE GROUND FOR OUR CONSIDE RATION IS WITH REGARD TO SUSTENANCE OF DISALLOWANCE U/S.14A OF THE ACT. 6.1 IN THIS CASE THE AO DISALLOWED A SUM OF RS.86, 86,018/- U/S.14A OF THE ACT, THOUGH THE ASSESSEE ALREADY DIS ALLOWED AN AMOUNT OF RS.95,200/- TOWARDS EARNING EXEMPTED INCOME AND THE BALANCE AMOUNT OF RS.85,90,818/- WAS DISALLOWED BY THE AO. ON APPEAL, THE LD.CIT(A) HAD GIVEN A PARTIAL RELIEF TO THE ASSESSE E. AGAINST THIS THE ASSESSEE IS IN APPEAL BEFORE US. 6.2 WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE MATERIAL ON RECORD. SIMILAR ISSUE WAS RAISED IN ASSESSEES APPE AL NO.656/MDS./2013 AS DISCUSSED IN EARLIER PARA NOS.4 & 5 OF THIS ORDER, THIS GROUND IS PARTLY ALLOWED. ITA NOS.655, 656, 778/MDS/13 :- 6 -: NEXT WE TAKE UP ITA NO.778/MDS./13 (REVENUES APPEA L: A.Y 2008-09) 7. THE FIRST GROUND IS THAT THE LD.CIT(A) ERRED IN HOLDING THAT THE RECEIPT OF RS.50 LACS RECEIVED BY THE ASSESSEE TOWARDS ARBITRATION AWARD IS A CAPITAL RECEIPT.. 7.1 THIS GROUND IS NOT EMANATED FROM THE ORDER OF LOWER AUTHORITIES. HENCE, THIS GROUND STANDS DISMISSED. 8. THE SECOND GROUND IS THAT LD.CIT(A) ERRED IN HO LDING THAT DEPRECIATION FOR UPS HAS TO BE GRANTED AT THE RATE OF 60% AND NOT AT THE RATE OF 15%. 8.1 AFTER HEARING BOTH THE PARTIES, SIMILAR ISSUE CAME FOR CONSIDERATION BEFORE THE DELHI HIGH COURT IN THE CA SE OF CIT VS. CIT VS. BSES YAMUNA POWERS LTD., VIDE ORDER DATED 31.08 .2010 IN ITA NO.1267/DEL./2010 OBSERVED THAT THE COMPUTER ACCESS ORIES AND PERIPHERALS SUCH AS PRINTER AND SCANNER, NT SERVER ETC. FORM AN INTEGRAL PART OF THE COMPUTER SYSTEM. AS SUCH, IT IS ENTITLED TO DEPRECIATION AT THE HIGHER RATE OF 60%. IN VIEW O F THIS, WE ARE INCLINED TO UPHOLD THAT THE ORDER OF LD.CIT(A) IN A LLOWING THE DEPRECIATION AT 60% ON UPS. HENCE, THIS GROUND R AISED BY THE REVENUE STANDS REJECTED. 9. THE THIRD GROUND IS THAT LD.CIT(A) ERRED IN HO LDING THAT PROVISIONS OF THE SECTION 40(A)(I) ARE NOT ATTRACTE D TOWARDS EXPENDITURE ITA NOS.655, 656, 778/MDS/13 :- 7 -: INCURRED ON PAYMENT OF OVERSEAS COMMISSION AMOUNTIN G TO RS.1.13 CRORES. 9.1 THE FACTS OF THE CASE ARE THAT THE AO FOUND THAT MA PLE LEAF INTERNATIONAL, BANGLADESH DOES SOME VALUE ADDED SER VICES TO THE ASSESSEE AND IT IS NOT A MERE COMMISSION AGENT, WHO DERIVES COMMISSION BASED ON TURNOVER. WITH REGARD TO WITHDRAWAL OF CIRCULARS, T HE OBSERVATION OF THE ASSESSING OFFICER THAT BOTH CIRCULAR NO.23 OF 1969 AND 786 OF 2000 HAVE BEEN WITHDRAWN VIDE BOARD CIRCULAR NO.7 OF 2009 DAT ED 22.10.2009 AND THE IMMUNITY GRANTED TO COMMISSION PAYMENT MADE ABROAD TO NONRESIDENT FROM THE PURVIEW OF SECTION 191 AND SECTION 40(A)(I) OF THE INCOME TAX ACT IS NOT AVAILABLE HAS NO MERIT. THIS ASPECT IS NOT RELEVANT TO DISALLOW PAYMENTS BY INVOKING PROVISIONS OF SECTION 40(A)(I) OF THE INCO ME TAX ACT. ON EXAMINATION OF THE AGREEMENT AND ALSO FROM THE INVO ICES PRODUCED DURING THE COURSE OF APPELLATE PROCEEDINGS, IT IS EVIDENT THAT THE ASSESSEE HAS MADE THE PAYMENTS ON ACCOUNT OF SALES COMMISSION. T HE MARKETING SERVICES MADE INCLUDE SOME VALUE ADDED SERVICES LIKE ADVERTI SEMENT, PROVIDING INPUTS ABOUT THE CUSTOMERS, ETC., WHICH ARE ESSENTIAL FOR THE PROMOTION OF THE SALES. ACCORDING TO AO, THE PAYMENT TO THE NON-RESIDENT IS IN THE NATURE OF INCOME DEEMED TO ACCRUE OR ARISE IN INDIA U/S 9(1)(I). AS SEEN FROM THE FACTS, NON- RESIDENT AGENT HAS NOT RENDERED ANY PART OF THE SER VICES IN INDIA AND DOES NOT HAVE A PERMANENT ESTABLISHMENT IN INDIA. HENCE, THE NON-RESIDENT AGENT CANNOT BE DEEMED TO HAVE BUSINESS CONNECTION IN IND IA AND NO PART OF HIS INCOME (IN RELATION TO IMPUGNED PAYMENTS) CAN BE DE EMED TO ACCRUE OR ARISE IN INDIA. THE SERVICES OF THE NON-RESIDENT WE RE USED FOR THE PURPOSE OF ITA NOS.655, 656, 778/MDS/13 :- 8 -: BUSINESS DONE BY THE ASSESSEE OUTSIDE INDIA. THE CO MMISSION PAYMENTS WERE ALSO REMITTED OUTSIDE INDIA. THE DELHI HIGH CO URT IN THE CASE OF CIT VS EON TECHNOLOGY PRIVATE LIMITED 246 CTR 40 HELD THAT COMMISSION PAID TO FOREIGN PARENT COMPANY FOR EXPORT CONTRACTORS PROCU RED BY ITS PARENT COMPANY NEITHER ACCRUES OR ARISES NOR DEEMED TO ACC RUE OR ARISE IN INDIA. THE COMMISSION PAYMENTS WERE NOT CHARGEABLE IN INDI A AND HENCE THE TDS PROVISION U/S 195 WAS NOT APPLICABLE. FURTHER, THE DECISION OF THE HYDERABAD ITAT IN DCIT VS DIVIS LABORATORIES LTD. IN 140 TTJ 746 IS APPLICABLE TO THE FACTS OF THE CASE. THE TRIBUNAL HELD THAT THE COMMI SSION PAID TO OVERSEAS AGENT IS NOT CHARGEABLE TO TAX IN INDIA AS THE AGEN T OF INDIAN EXPORTER OPERATE IN HIS OWN COUNTRY AND NO PART OF THE INCOM E ARISES IN INDIA. FURTHER, SECTION 9 DOES NOT PROVIDE FOR SCOPE OF TA XING SUCH COMMISSION PAYMENT BECAUSE THE BASIC CRITERIA PROVIDED IN THE SECTION IS ABOUT GENESIS OR ACCRUING OR ARISING IN INDIA. THE WITHDRAWAL OF CIRCULAR NO.23 AND 786 WOULD NOT HAVE ANY IMPACT ON THE ABOVE COMMISSION P AYMENT. ON APPEAL, THE ASSESSING OFFICER IS DIRECTED TO ALLOW THE COMM ISSION PAYMENTS. AGAINST THIS, THE REVENUE IS IN APPEAL BEFORE US. 9.2 BEFORE US, LD.D.R SUBMITTED THAT THE ASSESSEE HAS NOT PROVIDED THE SERVICES RENDERED BY THE OVERSEAS AGENT. HENCE, IT IS TO BE SEEN WHETHER THE SALES COMMISSION OR FEES FOR TECHNICAL SERVICES AND IT IS REQUIRED TO BE VERIFIED. 9.3 ON THE OTHER HAND, LD.A.R RELIED ON THE JUDGME NT OF JURISDICTIONAL HIGH COURT IN THE CASE OF CIT VS. FAIZAN SHOES PVT. LTD. REPORTED IN (2014) 367 ITA NOS.655, 656, 778/MDS/13 :- 9 -: ITR 0155 (MAD.) WHEREIN HELD THAT WHERE THE ASSESSE E SIMPLY PAID A COMMISSION SIMPLICITER TO NON-RESIDENT AGENT OUTSID E INDIA FOR PROCURING EXPORT ORDERS FROM OVERSEAS BUYERS AND THE NON-RESI DENT AGENT DID NOT PROVIDE ANY TECHNICAL SERVICES FOR PURPOSES OF RUNN ING BUSINESS OF ASSESSEE IN INDIA, ASSESSEE WAS NOT LIABLE TO DEDUCT TAX ON SOURCE ON SUCH COMMISSION PAID. 9.4 WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE MATERIAL ON RECORD. WHEN THE ASSESSEE CLAIMED AS SALES COMMISSION, THE ASSESSEE IS LIABLE TO FURNISH THE DETAILS OF SALES ORDERS, WHICH ARE PROC URED BY THE NON-RESIDENT AGENT AND IT HAS TO BE EXAMINED BY THE AO WHETHER I T IS ONLY SALES COMMISSION OR FEES FOR TECHNICAL SERVICES OFFERED. HENCE, PLACING RELIANCE ON THE ORDER OF THE TRIBUNAL IN THE CASE OF EURO LEDER FASHIONS LTD. REPORTED IN [2016] 156 ITD 208 (ITAT[CHEN]) WHEREIN HELD THAT:- 6. WE HAVE HEARD THE PARTIES AND PERUSED THE RECO RD. AT THE OUTSET, CERTAIN PROVISIONS OF THE ACT NEEDS TO BE L OOKED INTO SECTION 40(A)(I) WHICH READS AS UNDER:- 40 NOT WITHSTANDING ............. (A) IN THE CASE OF ANY ASSESSEE (I) ANY INTEREST (NOT BEING INTEREST ON A LOAN ISSUED FOR PUBLIC SUBSCRIPTION BEFORE THE 1ST DAY OF APRIL, 1938) ROYAL TY, FEES FOR TECHNICAL SERVICES OR OTHER SUM CHARGEABLE UNDER THIS ACT, WHIC H IS PAYABLE A. OUTSIDE INDIA B. IN INDIA TO A NON-RESIDENT, NOT BEING A COMPANY O R TO A FOREIGN COMPANY, ON WHICH TAX IS DEDUCTIBLE AT SOURCE UNDER CHA PTER VIIB AND SUCH TAX HAS NOT BEEN DEDUCTED OR, AFTER DEDUCTION, HA S NOT BEEN PAID DURING THE PREVIOUS YEAR, OR IN THE SUBSEQUENT YEAR BEF ORE THE EXPIRY OF THE TIME PRESCRIBED UNDER SUB-SECTION (1) OF SECTION 200: ITA NOS.655, 656, 778/MDS/13 :- 10 - : 7. THE AFORESAID CLAUSE MAKES IT CLEAR THAT THE DI SALLOWANCE SHALL BE MADE IN CASE OF ANY PAYMENT MADE WHICH IS CHARGE ABLE UNDER THIS ACT AND IS PAYABLE OUTSIDE INDIA OR IN INDIA TO A N ON- RESIDENT NOT BEING A COMPANY OR TO A FOREIGN COMPANY ON WHICH TAX IS D EDUCTIBLE AT SOURCE. THEREFORE, THE FIRST CONDITION REQUIRED TO BE FULFILLED IS THE PAYMENT MUST BE CHARGEABLE UNDER THE ACT, THEREAFTE R THE QUESTION OF DEDUCTION OF TAX WILL ARISE. SECTION 195 (1) OF THE ACT ALSO PRESCRIBES THAT TAX HAS TO BE DEDUCTED WHILE MAKING PAYMENT TO NON-RESIDENT WHICH IS CHARGEABLE UNDER THE PROVISIONS OF THE ACT . THEREFORE, THE CONDITION PRECEDENT FOR DEDUCTION OF TAX IS THE INC OME MUST BE CHARGEABLE UNDER THE PROVISIONS OF THE ACT. IN THE FACTS OF THE PRESENT CASE, THE ASSESSEE HAS NOT PRODUCED THE AGREEMENT E NTERED INTO BY THE ASSESSEE WITH FOREIGN AGENTS TO SHOW THAT THEY WERE APPOINTED TO ACT AS COMMISSION AGENTS OUTSIDE INDIA IN THEIR RES PECTIVE COUNTRIES. THE AO HAS DISALLOWED COMMISSION PAYMENT U/S 40(A)( I) OF THE ACT, SINCE, THERE WAS NO AGREEMENT TO SUGGEST THE PAYMEN T OF SALES COMMISSION. 8. AS SEEN FROM THE ORDER OF THE LOWER AUTHORITIES, THE ASSESSEE HAS NOT DISCHARGED THE BURDEN CAST UPON IT TO SHOW THE NATURE OF SERVICES RENDERED BY NON-RESIDENT AGENT. IF THERE ARE SERVICES RENDERED BY NON-RESIDENTS, WHO HAVE NO PERMANENT ES TABLISHMENT IN INDIA OR HAVE ANY BUSINESS CONNECTION IN INDIA, BY VIRTUE OF WHICH THE PAYMENT OF COMMISSION ACCRUED OR AROSE IN INDIA THE N, IT IS EXEMPTED, IF THE ASSESSEE IS ABLE TO PROVE THAT THE SERVICES WERE RENDERED BY THOSE NON-RESIDENTS AT ABROAD. IN THE PRESENT CASE , THE ASSESSEE HAS NOT ESTABLISHED THE FACTS ON RECORD THAT THE NON-RE SIDENT HAS RENDERED SERVICES AT ABROAD AND THERE IS NO BUSINESS CONNECT ION IN INDIA BY PRODUCING RELEVANT RECORDS, VIZ., EITHER AGREEMENT ENTERED INTO BY THE ASSESSEE WITH THEM OR CORRESPONDENCE TOOK BETWEEN T HE PARTIES. WITHOUT EXAMINING THESE DETAILS, WE ARE NOT IN A PO SITION TO DECIDE THE NATURE OF SERVICES RENDERED BY THE NON-RESIDENT AGE NT. THEREFORE, IT IS APPROPRIATE TO REMIT THE ENTIRE ISSUE BACK TO THE F ILE OF THE AO WITH DIRECTION TO THE ASSESSEE TO PROVE THAT IT WAS SALE S COMMISSION TOWARDS ITA NOS.655, 656, 778/MDS/13 :- 11 - : PROCUREMENT OF ORDERS FROM ABROAD. ACCORDINGLY, THE ENTIRE ISSUE IS REMITTED BACK TO THE FILE OF THE AO FOR FRESH CONSI DERATION AND THE AO IS DIRECTED TO MAKE NECESSARY ENQUIRY REGARDING THE NA TURE OF SERVICES RENDERED BY THE NON-RESIDENT AGENT AND THE PAYMENTS MADE THEREOF. WITH THESE OBSERVATIONS, THE APPEAL IS ALLOWED FOR STATISTICAL PURPOSES. 9.5 IN VIEW OF THE ABOVE ORDER OF TRIBUNAL, THIS I SSUE IN DISPUTE IS REMITTED BACK TO THE FILE OF THE AO FOR FRESH CO NSIDERATION ON SIMILAR LINE. 10. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS P ARTLY ALLOWED AND THE APPEAL OF REVENUE IS PARTLY ALLOWED FOR STA TISTICAL PURPOSES. ORDER PRONOUNCED ON 02 ND JUNE ,2017, AT CHENNAI. SD/ - SD/ - ! . ' #$ % ( DUVVURU RL REDDY ) ) & / JUDICIAL MEMBER ( ) (CHANDRA POOJARI) / ACCOUNTANT MEMBER &' / CHENNAI () / DATED: 02 ND JUNE,2017. K S SUNDARAM )*++, -.+/. / COPY TO: + 1 . / APPELLANT 3. + 0+% / CIT(A) 5. .12+, 3 / DR 2. ,4 / RESPONDENT 4. + 0 / CIT 6. 2$+5 / GF