Botta Ramesh Kumar, Vijayawada V. THE ITO, WARD - 2(2), Vijayawada

CO 100/VIZ/2013

• Counselvise Citation: [2015] 123 COUNSELVISE.COM (IT) 1793 (ITAT-VISAKHAPATNAM)
• Duration Of Justice: 2 year(s) 1 month(s) 4 day(s)
• Appeal Type: Cross Objection
• Pronouncement Date: 18-12-2015
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: DB
• Assessment Year: 2009-2010
• Appeal Filed On: 13-11-2013
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: K RAJESWA R
• Assessee Lawyers: D KOMALI KRISHNA

Judgement Text

ITA NO.486/VIZAG/2013 & CO NO.100/VIZAG/2013 BOTTA RAMESH KUMAR, VIJAYAWADA 1 , , IN THE INCOME TAX APPELLATE TRIBUNAL, VISAKHAPATNAM BENCH, VISAKHAPATNAM . . . . , . . . . , $ $ $ $ BEFORE SHRI V. DURGA RAO, JUDICIAL MEMBER & SHRI G. MANJUNATHA, ACCOUNTANT MEMBER ./ I.T.A.NO.486/VIZAG/2013 ( / ASSESSMENT YEAR : 2009-10 ) ITO WARD - 2(2) VIJAYAWADA VS. BOTTA RAMESH KUMAR VIJAYAWADA [ PAN: A FPPB9119N ] ( & & & & / APPELLANT) ( '(& '(& '(& '(& / RESPONDENT ) C.O. NO.100/VIZAG/2013 (ARISING OUT OF I.T.A.NO.486/VIZAG/2013 ) ( / ASSESSMENT YEAR : 2009-10 ) BOTTA RAMESH KUMAR VIJAYAWADA VS. ITO WARD - 2(2) VIJAYAWADA ( & & & & / APPELLANT) ( '(& '(& '(& '(& / RESPONDENT ) & ) / APPELLANT BY : SMT. D. KOMALI KRISHNA, DR '(& ) / RESPONDENT BY : SHR I K. RAJESWAR, AR ) - / DATE OF HEARING : 11.12.2015 ) - / DATE OF PRONOUNCEMENT : 18.12.2015 ITA NO.486/VIZAG/2013 & CO NO.100/VIZAG/2013 BOTTA RAMESH KUMAR, VIJAYAWADA 2 / O R D E R PER V. DURGA RAO, JUDICIAL MEMBER: THIS APPEAL IS FILED BY THE REVENUE AGAINST THE ORD ER OF CIT(A), VIJAYAWADA DATED 23.4.2013 AND THE CROSS APPEAL FIL ED BY THE APPEAL FOR THE ASSESSMENT YEAR 2009-10. 2. FACTS ARE IN BRIEF THAT THE ASSESSEE WAS A SERVI CE PROVIDER TO M/S. BAJAJ FINANCE LIMITED AND IN THE COURSE OF SUCH ACT IVITY, THE ASSESSEE APART FROM THE SALARY, HE HAS PAID SOME EXTRA AMOUN T BASED ON THE SERVICES RENDERED BY HIS EMPLOYEES. ACCORDING TO A .O., EXTRA AMOUNT PAID BY THE ASSESSEE IS A COMMISSION AND THEREFORE, PENALTY U/S 194H OF THE INCOME-TAX ACT, 1961 (HEREINAFTER CALLED AS TH E ACT) APPLIES. 3. ON APPEAL, THE LD. CIT(A) HAS HELD THAT IT IS ON LY INCENTIVE AND THEREFORE SECTION 194H OF THE ACT HAS NO APPLICATIO N. 4. THE VERY SAME ISSUE HAS CAME BEFORE THE TRIBUNAL FOR ASSESSMENT YEAR 2008-09 IN THE ASSESSEES OWN CASE AND THE COO RDINATE BENCH OF THE TRIBUNAL IN ITA NO.461/VIZAG/2012 DATED 11.12.2 015, WHERE BOTH HONBLE J.M. & HONBLE A.M. ARE PARTIES HAS CONSIDE RED THE ISSUE AND HAS HELD THAT SOME MORE AMOUNTS PAID TO THE EMPLOYE ES BASED ON THE PERFORMANCE DONE BY THEM WHICH IS BELOW THE AMOUNTS PRESCRIBED U/S ITA NO.486/VIZAG/2013 & CO NO.100/VIZAG/2013 BOTTA RAMESH KUMAR, VIJAYAWADA 3 194H OF THE ACT AND HENCE THE QUESTION OF DEDUCTION OF TDS DOES NOT ARISE AND CONFIRMED THE ORDER PASSED BY THE LD. CIT (A). THE RELEVANT PORTION OF THE ORDER IS EXTRACTED AS UNDER: 3. IN THE ASSESSMENT ORDER, THE A.O. HAS OBSERVED TH AT THE ASSESSEE HAS ADMITTED THAT HE HAS PAID INCENTIVES BASED ON T HE PERFORMANCE RENDERED BY THE EMPLOYEES FOR GAINING MORE PARTIES AND RECOVERING DUES FROM THE PARTIES. ACCORDING TO THE A.O., THE INCEN TIVES PAID BY THE ASSESSEE ATTRACTS PROVISION U/S 194H OF THE ACT AND BY INVOKING SECTION 40(A)(IA) OF THE ACT, HE HAS DISALLOWED ENTIRE INCE NTIVE PAYMENTS MADE BY THE ASSESSEE. ON APPEAL, THE CIT(A) GAVE A CATEGOR ICAL FINDING THAT THE INCENTIVES PAID TO EACH EMPLOYEE BELOW THE AMOUNTS LIABLE FOR TAXATION AND A.O. WRONGLY MADE THE ADDITION. BEFORE US, THE DEPARTMENT HAS NOT BROUGHT ANY MATERIAL TO SHOW THAT THE FINDING GIVEN BY THE CIT(A) IS NOT CORRECT. IN VIEW OF THE ABOVE, WE FIND THAT WHEN T HE ASSESSEE HAS PAID SOME MORE AMOUNTS TO ITS EMPLOYEES BASED ON THE PER FORMANCE DONE BY THEM WHICH IS BELOW THE AMOUNTS PRESCRIBED U/S 194H OF THE ACT, THE QUESTION OF DEDUCTION OF TDS DOES NOT ARISE. IN VIE W OF THE ABOVE, WE FIND NO INFIRMITY IN THE ORDER PASSED BY THE CIT(A) . 5. IN VIEW OF THE ABOVE, WE FIND NO INFIRMITY IN TH E ORDER PASSED BY THE LD. CIT(A). THIS GROUND OF APPEAL RAISED BY TH E REVENUE IS DISMISSED. 8. SO FAR AS CROSS APPEAL FILED BY THE ASSESSEE IS CONCERNED, IT IS ONLY SUPPORTIVE. IN VIEW OF OUR ABOVE ORDER, THE CROSS APPEAL FILED BY THE ASSESSEE CANNOT SURVIVE. THEREFORE, THE SAME IS DI SMISSED. ITA NO.486/VIZAG/2013 & CO NO.100/VIZAG/2013 BOTTA RAMESH KUMAR, VIJAYAWADA 4 9. IN THE RESULT, THE APPEAL FILED BY THE REVENUE I S DISMISSED AND THE CROSS APPEAL FILED BY THE ASSESSEE IS ALSO DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 18 TH DEC15. SD/- SD/- ( . . . . ) ( . ) ( G. MANJUNATHA) ( (( ( V. DURGA RAO ) )) ) / // / ACCOUNTANT MEMBER / // / JUDICIAL MEMBER /VISAKHAPATNAM: 3 / DATED : 18.12.2015 VG/SPS ) ' 4 / COPY OF THE ORDER FORWARDED TO :- 1. & / THE APPELLANT THE ITO WARD-2(2), VIJAYAWADA 2. '(& / THE RESPONDENT SRI BOTTA RAMESH KUMAR, D.NO.40-2-26, FLAT NO.GF2, TARA COMPLEX, RAGHURAM STREET, MOGALRAJAPURAM, VIJA YAWADA-520 010. 3. 5 / THE CIT, VIJAYAWADA 4. 5 () / THE CIT(A), VIJAYAWADA 5. ' , , / // / DR, ITAT, VISAKHAPATNAM 6 . . . . / GUARD FILE / BY ORDER // TRUE COPY // 9: ( SR.PRIVATE SECRETARY ) , / // / ITAT, VISAKHAPATNAM