Insofar As The First Substantial Question Of Law Isconcerned We Find The Matter Is Entirely Covered By The Decision Ofthe Hon'ble Apex Court In The Case Of Ge I v. Cit,1. In This Decision, The Hon'ble Apex Court Hasheld That The Duty To Deduct Tax At Source Arises Only When Remittanceto Non-Residents Contain Wholly Or Part

1 IN THE HIGH COURT OF BOMBAY AT GOA TAX APPEAL NO.19 OF 2013 The Commissioner of Income Tax,Aaykar Bhavan, Patto Panaji-Goa. .... Appellant. V/s. M/s. Sesa Goa Ltd. Sesa Ghor, 20 EDC Complex, Patto Plaza, Panaji – Goa, 403001.PAN: …. Respondent Ms. Susan Linhares, Advocate for the appellant. Mr. R. G. Ramani, the learned Senior Counsel along with Ms. S.Patil, Advocate for the respondent. Coram : M. S. SONAK & NUTAN D. SARDESSAI, JJ. Date : 27[th] February, 2020. Oral Judgment: (Per M.S. Sonak, J.) : Heard Ms. Susan Linahres, the learned Standing Counselfor the Income Tax Department – appellant and Mr. R. G. Ramani,the learned Senior Counsel appears along with Ms. S. Patil, thelearned Counsel for the respondent. 2.By our Order dated 15.10.2013, this appeal wasadmitted on the following substantial questions of law. 2 “i. Whether ITAT is correct in deciding the additiontowards payment of commission to foreign agentswhere TDS was not deducted u/s. 40(a)(ia) ignoringthe decision of AAR in the case of Rajiv MalhotraINRE(AAR) 284 ITR 564 and SKF Boilers and DriersPvt. Ltd.? ii. Whether ITAT is correct in law in taking a viewthat the disallowance of commission under Section37 is incorrect since the Commission has beenincurred by the Assessee wholly and exclusively forthe purpose of business of the Assessee?” 3.Insofar as the first substantial question of law isconcerned we find the matter is entirely covered by the decision ofthe Hon'ble Apex Court in the case of GE India TechnologyCentre (P) Vs. CIT,1. In this decision, the Hon'ble Apex Court hasheld that the duty to deduct tax at source arises only when remittanceto non-residents contain wholly or partly taxable income, i.e. incomechargeable under Section 195 of the Income Tax Act, 1961. 4.The view taken in GE India Technology (P) Limited(supra) was once again reiterated in another decision of the Hon'bleApex Court in the case of C.I.T. Vs. Toshoku Ltd.2 5.In Commissioner of Income Tax–10 Vs. GujaratReclaim & Rubber Products Ltd., Income, Tax Appeal No.21161(327 ITR 456) 2(125 ITR 525) 3 of 2013 with Income Tax Appeal No.169 of 2014 decided on8.12.2015 by the Division Bench of this Court has followedToshoku Limited (supra) and in The Principal Commissioner ofIncome Tax Vs. Sesa Goa Ltd., Tax Appeal No.68 of 2016decided on 16.8.2017, another Division Bench of this Court hasfollowed GE India Technology (P) Limited (supra) and ToshokuLimited (supra) to reiterate that the commission earned by non-resident (foreigner) agent who carried on the business of sellingIndian goods outside India, cannot be said have deemed to be incomewhich has accrued and/or arisen in India so as to require any taxdeduction at source under section 195 of the ITR. 6.For all the aforesaid reasons, the first substantial questionof law is required to be answered against the appellant - Revenue andin favour of the respondent - assessee. 7.Insofar as the second substantial question of law isconcerned, we find that both the Commissioners (Appeals) as well asthe ITAT have recorded concurrent findings of fact that thecommission have been incurred by the assessee wholly and exclusivelyfor the business of the assessee. No perversity is pointed out in thebusiness so as to give arise to any substantial question of law. Besides, we find that the ITAT has also relied upon 4 several rulings of the Apex Court and other Courts in order to answerthis question in favour of the assessee. The record indicates that forthe A.Y 2005-2006 and A.Y 2009-10, as well similar view was takenin favour of the assessee. 9.For the aforesaid reasons, we answer even the secondsubstantial question of law against the appellant – Revenue and infavour of the respondent - assessee. 10.Resultantly, this appeal is required to be dismissed and ishereby dismissed. There shall be no order as to costs. NUTAN D. SARDESSAI, J. M. S. SONAK, J.af*