, `'
INCOME TAX APPELLATE TRIBUNAL,MUMBAI - A -BENCH
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Before S/Sh. D. Manmohan,Vice President & Rajendra,Accountant Member
/.ITA No.5026/Mum/2013, /Assessment Year-2010-11
ACIT-25(3) M/s. Anand International
308, C-11, Bandra Kurla complex 76A & B-Govt. Industrial Estate,
Bandra (East) Vs Charkop, kandivali (W)
Mumbai-400 051. Mumbai-400 067.
PAN:AAAFA 2526 K
( /Assessee) ( / Respondent)
/Assessee by :Shri Prakash Rathi
/ Revenue by :Shri Asghar Zain
/ Date of Hearing :27 - 04 -2015
/ Date of Pronouncement :27 -04-2015
,1961 254(1)
Order u/s.254(1)of the Income-tax Act,1961(Act)
PER RAJENDRA, AM-
Challenging the order dt.26/04/2013 of the CIT(A)-35 Mumbai,Assessing Officer has raised
following Grounds of Appeal:
1." On the facts and in circumstances of the case and in law, the Ld CIT(A) relying on the assessee's
submission with respect to M/s SKF Boilers and Driers(P) Ltd erred in not considering the
decision of the AAR in the case of M/s S.KF Boilers and Driers(P) Ltd which is applicable in the case of
the assessee and accordingly tax should have been deducted at source."
2." On the facts and in the circumstances of the case and in law, the Ld CIT(A) erred in not taking
into account explanation 2 below section 195, inserted by Finance Act,2012, with retrospective effect
01.04.1962."
3."On the facts and in the circumstances of the case and in law, the Ld CIT(A) erred in not appreciating
the fact that "commission" is part of the term "any other sum" in section 195 r.w.s section 40(a)(i) of the
I.T.Act ,1961."
4."On the facts and in the circumstances of the case and in law, the Ld CIT(A) erred in relying on
Circular No.786 dt. 7.2.2000 which is in conflict with the newly inserted Explanation 2 below section 195
of the Act and in such cases of conflict between Circular and Act, letter prevails."
5."The appellant prays that the order of the Ld.CIT(A) on the above grounds be set aside and that of the
AO be restored."
6.'The appellant craves leave to amend or alter any ground or add a new ground."
Assessee-Firm,engaged in the business of export of writing of instruments and gifts sets
filed its return of income on 23.09.2010, declaring total income of Rs.2,00,85,960/-.The AO
finalised the assessment u/s.143(3) of the Act,on 11.02.2013,determining the total income of the
assessee at Rs.2,60,51,190/-.
2.Effective ground of appeal is about non-consideration of explanation 2 below section 195,
inserted by Finance Act,2012 by the First Appellate Authority(FAA).During the assessment
proceedings,the AO found that the assessee had debited an amount of Rs.55.13 lakhs under
the head export commission,that the recipient of the commission was based in USA.He
directed the assessee to state as to whether taxes had been deducted at source on the
payment and if not why the same should not be disallowed.In response to the notice the
assessee replied that paying commission for sales at USA through Darvo Product(agent)in
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foreign currency to non resident agent directly to USA,that payment was made outside
India,that Darvo product is having permanent establishment(PE)outside India,that it was
providing services outside India,that commission was paid on actual realisation of sales,that
the goods were directly supplied to buyers,that the assessee and Darvo Project were
independent entities.The AO referred to the provisions of section 9(1)of the Act.Relying
upon the decision of the AAR delivered in the case of SKF Boilers & Driers Pvt.Ltd. held
that the commission payable to the agent abroad was deemed to accrue and arise in India.
With regard to PE of the commission agent, he held that explanation 2 had been inserted
below section 195 w.e.f.01.04.1962 by the Finance Act,2012.He finally held that the
assessee was liable to deduct tax at source on payment of commission of Rs.55.13 lakhs to
the agent in USA,the the assessee had failed to deduct tax,that the said amounts had to be
disallowed u/s.195 r.w.s.40(a)(i)of the Act.
3.Aggrieved by the order of the AO,the assessee preferred an appeal before the FAA.Before
him,the assessee argued that section 195 of the Act was not applicable to export commission
payment,that provisons of section 40(a)(i)were inapplicable,that tax was not deductible from
payment of export commission to non resident,that the AO had not followed the provisions
of Indo-US DTAA,that AAR decisions were applicable to binding only on the parties which
were involved in those particular cases,that the AO did not follow the decisions that were
delivered after the decision of SKF Boilers & Driers Pvt.Ltd.,that the AO had ignored the
provisions of explanation 1(a)and 1(b)to section 9 of the Act.The assessee relied upon the
decision of UTI(249ITR612)of the Hon'ble Bombay High Court with regard to withdrawal
of circular and retrospective amendment.The assessee also relied upon various cases
delivered by the Hon'ble Courts and the Tribunal.After considering the submission of the
assessee and the assessment order,the FAA held that disallowance made by the AO had to
be deleted considering the facts of the case and applying the ratio of various judicial pron-
ouncements.
4.Before us,Departmental Representative(DR)argued that the assessee was liable to deduct
tax for the commission paid to foreign agent,that the FAA had not ignored the decision of
SKF Boiler & Driers Pvt.Ltd.,that amendment to the provisions of section 195(2) was
ignored by the FAA.Authorised Representative(AR)stated that out of the total payments
made three payments were made before the amendment,that the agent had no PE in
India,that payment was made for the services rendered by the agent outside India.He relied
upon the cases of Wizcraft International Entertainment Ltd.(364ITR227)and Rajiv Malhotra
(284ITR564).
5.We have heard the rival submissions and perused the material before us.We find that the
AO had made the disallowance considering the retrospective amendment made to section
195 of the Act.He also relied upon the judgment of SKF Boiler & Driers Pvt.Ltd.(supra).It is
also found that the FAA had not discussed anything about both the arguments of the AO or
has not distinguished the case relied upon by the AO,while deleting the addition.We would
like to reproduce the operative part of the seventeen page order of the FAA and same reads
as under:
"In view of the above facts of the case and applying the ratio of various judicial
pronouncements relied upon by the appellant,the disallowance of Rs. 55,13,968/- in this
case is deleted.In the result,the appeal is allowed."
From the above it is clear that the FAA has passed the order without assigning any reason
for deleting the disallowance.It was the AR who informed that out of the total payments
made by the assessee three payments were made before the amendment was introduced and
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remaining payments were made after the amendment.The FAA was either not aware of the
those basic facts or had not mentioned those facts in his order.An order of the adjudicating
authority without reason is like a body without soul.Reasons for upholding or reversing the
decision of the lower authority have to be incorporated in the appellate orders.But,in the
order before us,no reason has been given by the FAA for reversing the order of the FAA.
How the cases relied upon the assessee were relevant to the facts of case has not been
mentioned by the FAA.A sweeping statement has been made by him about application of the
case laws.In our opinion,such an order does not fall in the category of speaking and
reasoned order.In this regard,the Hon'ble Gauhati High Court has in the case of Buildwell
Assam (P.)Ltd.(133ITR736)has held as under:
Section 250(6) of the I.T. Act, 1961, prescribes the manner of disposal of an appeal. An order
must be in writing containing the points for determination and decision. The object is obvious. It
enables a party to know the precise points decided in his favour or against him. Absence of
formulation of points for decision or want of clarity in decision puts a party in a quandary. A
decision against a party enables him to go up in appeal. A decision by its very nature must be
firm and should not be vague and unclear.......the tenor and colour of the order of the superior
authority must be firm, clear, certain, definite and without any ambiguity."
In our opinion,the order of the FAA,before us,is not clear or certain or definite.It is a non
speaking order and does not give reasons for arriving at the conclusion.We find that the
decisions relied upon by the assessee do not deal with the issue before us.In the matter of
Wizcraft International Entertainment Ltd.(supra)the issue before the Hon'ble Court was
about applicability of article 7 and 18 of India UK treaty.Facts of the case were that the
assessee, an event management company was engaged the services of an agent to bring artistes to
India,that it reimbursed the expenses for transfer and performance actually incurred and also
made payment to the agent. According to the AO, the income of the artiste was to be taxed in the
State where the activities were being organised. Since the artiste had performed in India the
income derived from that activity was taxable in India. The assessee neither paid tax on the
whole amount nor filed the return. The assessee was, therefore, treated as defaulter.In our
opinion facts of both the cases are not identical.Similarly,in the matter of Rajiv Malhotra
(supra)the issue before the AAR was not the retrospective amendment to section 195(2)of
the Act.
Considering the above,we are of the opinion that in the interest of justice,matter should be
restored to the file of the FAA for fresh adjudication who would pass a speaking order.We
decide the effective ground of appeal in favour of the AO in part.
As a result, appeal filed by the AO stands partly allowed.
.
Order pronounced in the open court on 27th,April, 2015.
27 ,2015
Sd/- Sd/-
(. /D. Manmohan) ( / RAJENDRA)
/ Vice President / ACCOUNTANT MEMBER
/Mumbai, /Date:27.04.2015
JV.
/Copy of the Order forwarded to :
1.Appellant / 2. Respondent /
3.The concerned CIT(A)/ , 4.The concerned CIT /
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5.DR "A" Bench, ITAT, Mumbai / , ,.. .
6.Guard File/
//True Copy//
/ BY ORDER,
/ Dy./Asst. Registrar
, /ITAT, Mumbai.
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