IN THE INCOME TAX APPELLATE TRIBUNAL, AGRA BENCH, AGRA BEFORE : SHRI S. RIFAUR RAHMAN, ACCOUNTANT MEMBER AND SHRI SUNIL KUMAR SINGH, JUDICIAL MEMBER ITA No. 63/Agr/2025 Assessment Year: 2020-21

Assessee by Sh. Deepak Singh, Advocate Department by Sh. Shailendra Srivastava, Sr. DR Date of hearing 18.12.2025 Date of pronouncement 15.01.2026

ORDER

PER : S. RIFAUR RAHMAN, ACCOUNTANT MEMBER:

The assessee has preferred this appeal against the order of learned CIT(Appeals)-3, Gurgaon dated 10.12.2024 u/s. 250(6) of the Income-tax Act, 1961 (“the Act” for short) for the assessment year 2020-

21.

2. Brief facts of the case are, the assessee filed its return of income for the assessment year 2020-21, declaring income of Rs.45,99,37,860/- on 29.10.2020. Case of the assessee was selected for scrutiny. Accordingly, notices u/s. 143(2) and 142(1) of the Act were issued and served on the assessee. After considering the submissions of the assessee, the Assessing Officer made several additions, including disallowance of commission paid, but tax not deducted to the extent of Rs.1,85,6,973/-.

3. Aggrieved, assessee preferred an appeal before learned CIT(A), Gurgaon. Learned CIT(A) partly allowed the appeal preferred by assessee on another issue and dismissed the issue of commission paid to non-resident without TDS deduction.

4. Aggrieved with the above order, assessee is in this appeal, raising following grounds :

“1. Because The CIT(A) has erred in confirming the addition of Rs.1,85,70,973 being the commission paid to foreign agents.

2. Because the order appealed against is contrary to the facts, law and principles of natural justice. the appellant craves leave to add, delete, modify or substitute any or all the grounds of appeal at any appropriate time.”

5. At the time of hearing, learned AR of assessee submitted that the assessee is a large exporter of meat and relevant details of commission paid to the non-residents are reproduced at page 5 of the assessment order and he submitted that the assessee has paid commission to the non-resident towards procurement of orders for the assessee outside India. All these services are rendered outside India. Therefore, there is no requirement for assessee to deduct TDS. He brought to our notice two parties, to whom the assessee has paid oasis agency commission, B & G Export Corporation PTY Ltd. and Red Coral Business Consultants. He submitted that Oasis are exempt from tax in India. In this regard, he relied on the decision of Ho’ble Delhi High Court in the case of CIT vs. Harbalife International India Pvt. Ltd. He submitted that the facts are exactly similar to the facts in assessee’s case. He brought to our notice the relevant findings and also Article 24 of the DTAA between India and Australia and submitted that Oasis commissions are exempt from tax in India.

6. On the other hand, learned DR relied on the findings of lower authorities.

7. Considered the rival submissions and the material placed on record.

8. We observe that the assessee has paid oasis commission to B & G Export Corporation PTY Ltd. and Red Coral Business Consultants to procure the orders for the assessee for export of meat. These parties procured the orders for assessee outside India and it is clear that the services are rendered outside India. These parties do not have any PE in India. Therefore, as held in Transmission Corporation of A.P. Ltd. and Another v. Commissioner of Income Tax (1999) 239 ITR 587 (SC), that the income, which is not chargeable to tax in India, the assessee is not required to deduct TDS. Further, in the case of Harbalife International India Pvt. Ltd., Hon’ble Delhi High Court held as under : “52. Section 40 (a) (i), in providing for disallowance of a payment made to a non-resident if TDS is not deducted, is no doubt meant to be a deterrent i