IN HIGH COURT OF BOMBAY AT GOA TAX APPEAL NO.19 OF 2013 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: AACCS7101B. Respondent Ms. Susan Linhares, Advocate for appellant. Mr. R. G. Ramani, learned Senior Counsel along with Ms. S. Patil, Advocate for respondent. Coram M. S. SONAK & NUTAN D. SARDESSAI, JJ. Date 27th February, 2020. Oral Judgment: (Per M.S. Sonak, J.) : Heard Ms. Susan Linahres, learned Standing Counsel for Income Tax Department appellant and Mr. R. G. Ramani, learned Senior Counsel appears along with Ms. S. Patil, learned Counsel for respondent. 2. By our Order dated 15.10.2013, this appeal was admitted on following substantial questions of law. 2 i. Whether ITAT is correct in deciding addition towards payment of commission to foreign agents where TDS was not deducted u/s. 40(a)(ia) ignoring decision of AAR in case of Rajiv Malhotra INRE(AAR) 284 ITR 564 and SKF Boilers and Driers Pvt. Ltd.? ii. Whether ITAT is correct in law in taking view that disallowance of commission under Section 37 is incorrect since Commission has been incurred by Assessee wholly and exclusively for purpose of business of Assessee? 3. Insofar as first substantial question of law is concerned we find matter is entirely covered by decision of Hon'ble Apex Court in case of GE India Technology Centre (P) Vs. CIT, 1. In this decision, Hon'ble Apex Court has held that duty to deduct tax at source arises only when remittance to non-residents contain wholly or partly taxable income, i.e. income chargeable under Section 195 of Income Tax Act, 1961. 4. view taken in GE India Technology (P) Limited (supra) was once again reiterated in another decision of Hon'ble Apex Court in case of C.I.T. Vs. Toshoku Ltd. 2 5. In Commissioner of Income Tax 10 Vs. Gujarat Reclaim & Rubber Products Ltd., Income, Tax Appeal No.2116 1(327 ITR 456) 2(125 ITR 525) 3 of 2013 with Income Tax Appeal No.169 of 2014 decided on 8.12.2015 by Division Bench of this Court has followed Toshoku Limited (supra) and in Principal Commissioner of Income Tax Vs. Sesa Goa Ltd., Tax Appeal No.68 of 2016 decided on 16.8.2017, another Division Bench of this Court has followed GE India Technology (P) Limited (supra) and Toshoku Limited (supra) to reiterate that commission earned by non- resident (foreigner) agent who carried on business of selling Indian goods outside India, cannot be said have deemed to be income which has accrued and/or arisen in India so as to require any tax deduction at source under section 195 of ITR. 6. For all aforesaid reasons, first substantial question of law is required to be answered against appellant - Revenue and in favour of respondent - assessee. 7. Insofar as second substantial question of law is concerned, we find that both Commissioners (Appeals) as well as ITAT have recorded concurrent findings of fact that commission have been incurred by assessee wholly and exclusively for business of assessee. No perversity is pointed out in business so as to give arise to any substantial question of law. 8. Besides, we find that ITAT has also relied upon 4 several rulings of Apex Court and other Courts in order to answer this question in favour of assessee. record indicates that for A.Y 2005-2006 and A.Y 2009-10, as well similar view was taken in favour of assessee. 9. For aforesaid reasons, we answer even second substantial question of law against appellant Revenue and in favour of respondent - assessee. 10. Resultantly, this appeal is required to be dismissed and is hereby dismissed. There shall be no order as to costs. NUTAN D. SARDESSAI, J. M. S. SONAK, J. Commissioner of Income-tax, Patto Panaji-Goa v. Sesa Goa Ltd