Itxa/4742/2010 Of The Commissioner Of Income Tax - 12 Mumbai v. Ashok Bhavnani

IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION INCOME TAX APPEAL (L) NO.2984 OF 2009 The Commissioner of Income Tax ..Appellant. V/s. Ashok Bhavanani ..Respondent. Mr. Vimal Gupta for appellant. Ms. A.Vissanji with S.J. Mehta for respondent. CORAM : DR. D.Y.CHANDRACHUD AND J.P.DEVADHAR, JJ. DATED : 22ND FEBRUARY, 2010 P.C. :- 1.The office objections are overruled. Registry is directed to register the appeal. 2.The following question of law has been formulated in the appeal filed by the Revenue:- " Whether on the facts and in the circumstances of the case, the Tribunal was right in quashing the order of the Commissioner of Income Tax passed u/s.263 of Income Tax Act on the ground that there is no material to show that the commission paid to foreign nationals is taxable in India even though the issue TDS on such commission payments was not at all discussed in the assessment order ? " 3.The appeal pertains to assessment year 2003-04 and arises out of the order of the ITAT dated 29[th] June, 2009. A finding of fact has been recorded by the Tribunal to the effect that payments in the present case have been made directly to foreign agents residing in Italy and Spain and there is no material on record to show that the foreign agents rendered any service in India or that the payments had been received in India. In the circumstances, the Tribunal came to the conclusion that commission paid to the foreign nationals was not chargeable to tax in India and in support of the above, also relied on circular No.23 issued by CBDT on 23rd July, 1969. A finding of fact has been recorded by the Tribunal. No substantial question of law would arise. The appeal is accordingly dismissed. (J.P.DEVADHAR, J.) (DR. D.Y.CHANDRACHUD, J.)