Commissioner of Income Tax vs Kikani Exports Pvt. Ltd.

R. Sudhakar, J.—The appeal has been filed by the Revenue challenging the order of the Income-tax Appellate Tribunal, Chennai "B" Bench, dated December 30, 2013, made in I.T.A. No. 932/Mds/2013 for the assessment year 2008-09.

1.1. The facts in a nut-shell are as under: The assessee is engaged in trading of yarn with various countries. The original assessment order was passed under section 143(3) of the Income-tax Act (for brevity, "the Act") on October 8, 2010, accepting the total income declared by the assessee.

1.2. On February 15, 2013, the Commissioner of Income-tax-I, Coimbatore, issued a show-cause notice under section 263 of the Act stating that there is an error in the assessment order in accepting the claim for deduction, being the foreign agency commission paid to non-resident foreign companies, as tax deduction at source was not made in respect of such payment and, therefore, it caused loss to the Revenue. The objections of the assessee were considered and an order was passed on March 27, 2013, in terms of section 263 of the Act setting aside the assessment order and directing the Assessing Officer to redo the assessment upon considering the disallowance of foreign agency commission paid without tax deduction at source.

1.3. Assailing the said order passed by the Commissioner of Income-tax-I, Coimbatore, the assessee preferred an appeal to the Tribunal. The Tribunal considering the facts that the assessee, in order to sell its products, has only appointed agents on sales commission basis in various countries and such agent is a link between the foreign buyer and the assessee and they do not have any permanent establishment or place of business in India, and after referring to the decisions of the co-ordinate Bench of the Tribunal in the case of Asst. CIT v. Eagle Press (P.) Ltd. I.T.A. No. 776/Mds/2008, dated June 6, 2011; Prakash Impex v. Asst. CTT I.T.A. No. 08/Mds/2012, dated March 30, 2012 and Asst. CIT v. Panda Shoes Private Ltd., I.T.A. No. 359/Mds/2013, dated April 11, 2013, came to hold that the provisions of sections 195 and 9 of the Act relating to deduction of tax at source on payments made to foreign parties and levy of tax on payments so made are not applicable to the facts of the case and allowed the appeal filed by the assessee.

1.4. Aggrieved by the said order passed by the Tribunal, the Revenue has preferred this appeal. Even though four substantial questions of law were raised for consideration, the learned counsel for the Revenue restricts his argument to the following substantial question of law:

"Whether, under the facts and in the circumstances of the case, the Tribunal was correct in deleting the disallowance made by the Assessing Officer towards export commission paid by the assessee to the non-resident on which it failed to deduct tax at source?"

We have heard the arguments of Mr. T.R. Senthilkumar, learned senior standing counsel appearing for the appellant and Mr. S. Sridhar, learned counsel for the respondent.

The fact that the assessee paid the amount by way of commission to foreign agents for services rendered outside India, as recorded in the assessment order and the order of the Tribunal, is not disputed. A similar issue was considered by us in the case of Commissioner of Income Tax Vs. Faizan Shoes Pvt. Ltd., , wherein after considering the section 9 of the Act and the decision of the Supreme Court in Commissioner of Income Tax, Andhra Pradesh Vs. Toshoku Ltd., Guntur and Others, , we have held as under (page 163):

"While dealing with section 9(1) of the Act, the Supreme Court in Commissioner of Income Tax, Andhra Pradesh Vs. Toshoku Ltd., Guntur and Others, , on considering a transaction where tobacco was exported to Japan and France and sold through non-resident assessees who were paid commission, held as under (page 530):

''The second aspect of the same question is whether the commission amounts credited in the books of the statutory agent can be treated as incomes accrued, arisen, or deemed to have accrued or arisen in India to the non-resident assessees during the relevant year. This takes us to section 9 of the Act. It is urged that the commission amounts should be treated as incomes deemed to have accrued or arisen in India as they, according to the department, had either accrued or arisen through and from the business connection in India that existed between the non-resident assessees and the statutory agent. This contention overlooks the effect of clause (a) of the Explanation to clause (i) of sub-section (1) of section 9 of the Act which provides 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 that 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. If all such operations are carried out in India, the entire income accruing therefrom shall be deemed to have accrued in India. If, however, all the operations are not carried out in the taxable territories, the profits and gains of business deemed to accrue in India through and from business connection in India shall be only such profits and gains as are reasonably attributable to that part of the operations carried out in the taxable territories. If no operations of business are carried out, in the taxable territories, it follows that the income accruing or arising abroad through or from any business connection in India cannot be deemed to accrue or arise in India (see Commissioner of Income Tax, Punjab Vs. R.D. Aggarwal and Company, and Carborandum Co. Vs. Commissioner of Income Tax, Madras, which are decided on the basis of section 42 of the Indian Income-tax Act, 1922, which corresponds to section 9(1)(i) of the Act).

In the instant case, the non-resident assessees did not carry on any business operations in the taxable territories. They acted as selling agents outside India. The receipt in India of the sale proceeds of tobacco remitted or caused to be remitted by the purchasers from abroad does not amount to an operation carried out by the assessees in India as contemplated by clause (a) of the Explanation to section 9(1)(i) of the Act. The commission amounts which were earned by the non-resident assessees for services rendered outside India cannot, therefore, be deemed to be incomes which have either accrued or arisen in India. The High Court was, therefore, right in answering the question against the Department.''

The facts of the present case are akin to the facts of the decision in Toshoku Ltd.''s case, referred to supra. In the instant case also the assessee engaged the services of non-resident agent to procure export orders and paid commission. That apart, the Commissioner of Income-tax (Appeals) as well as the Tribunal have correctly applied the principle laid down in GE India Technology Centre P. Ltd.''s case, referred to supra, to hold that the assessee is not liable to deduct tax at source when the non-resident agent provides services outside India on payment of commission.

In the light of the above said decisions and the finding rendered by us on the earlier issue that the services rendered by the non-resident agent can at best be called as a service for completion of the export commitment and would not fall within the definition of fees for technical services, we are the firm view that section 9 of the Act is not applicable to the case on hand and, consequently, section 195 of the Act does not come into play. In view of the above finding, the decision of the Supreme Court in Transmission Corporation of A.P. Ltd.''s case, referred to supra, relied upon by the learned standing counsel for the Revenue is not applicable to the facts of the present case. We find no infirmity in the order of the Tribunal in confirming the order of the Commissioner of Income-tax (Appeals)."

The facts in the present case are identical to that of the case in Faizan Shoes Ltd., referred to supra. The services rendered by the non-resident agent can at best be called as a service for completion of the export commitment and would not fall within the definition of "fees for technical services" and, therefore, section 9 of the Act is not applicable to the instant case and, consequently, section 195 Of the Act does not come into play. For the foregoing reasons, the substantial question of law raised for our consideration is answered against the Revenue and this appeal is dismissed. No costs.