ACIT, Sikar V. SIKAR & JHUNJHUNU ZILA DUGDH UTPADAK SAHAKARI SANGH LTD., Sikar

ITA 33/JPR/2016

• Counselvise Citation: [2016] 131 COUNSELVISE.COM (IT) 5111 (ITAT-JAIPUR)
• Duration Of Justice: 8 month(s) 9 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 14-09-2016
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: Not Allotted
• Assessment Year: 2012-2013
• Appeal Filed On: 04-01-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: R A VERMA
• Assessee Lawyers: P C PARWAL CA DHK

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHES, JAIPUR JH HKKXPUN] YS[KK LNL; ,OA JH YFYR DQEKJ] U;KF;D LN L; DS LE{K BEFORE:SHRI BHAGCHAND, AM & SHRI LALIET KUMAR, J M VK;DJ VIHY LA-@ ITA NO. 33/JP/2016 FU/KZKJ.K O'K Z@ ASSESSMENT YEAR : 2012-13 THE ACIT CIRCLE- SIKAR SIKAR CUKE VS. M/S. SIKAR & JHUNJHUNU ZILA DUGDH UTPADAK SAHAKARI SANG LTD. V&P: PALSANA, DISTT. SIKAR LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN/GIR NO .: AABAS 0852L VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT JKTLO DH VKSJ LS@ REVENUE BY: SHRI R.A VERMA, ADDL. CIT -DR FU/KZKFJRH DH VKSJ LS@ ASSESSEE BY : SHRI P.C. PARWAL, CA LQUOKBZ DH RKJH[K@ DATE OF HEARING : 01/08/2016 ?KKS'K .KK DH RKJH[K@ DATE OF PRONOUNCEMENT : 14 /09/2016 VKNS'K@ ORDER PER BHAGCHAND, AM THE REVENUE HAS FILED AN APPEAL AGAINST THE ORDER OF THE LD. CIT(A)- 3, JAIPUR DATED 26-10-2015 FOR THE ASSESSME NT YEAR 2012-13 RAISING THEREIN FOLLOWING GROUNDS OF APPEAL. 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE C ASE, THE LD. CIT(A) ERRED IN DELETING THE ENTIRE DISALLOWANC E OF RS. 1,77,66,242/- MADE BY AO U/S 40(A)(IA) OF THE IT AC T, 1961 ITA NO. 33/JP/2016 THE ACIT, CIRCLE- SIKAR VS. SIKAR & JHUNJHUNU ZILA DUGDH UTPADAK SAHAKARI SANG LTD.SIKAR . 2 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E, THE LD. CIT(A) ERRED IN ALLOWING THE RELIEF AS ABOVE WI THOUT GIVING A FINDING ON THE NATURE OF EXPENDITURE DISAL LOWED BY THE AO AND WITHOUT GIVING A FINDING AS TO HOW THE EXPENDITURE IS NOT COVERED BY THE TDS PROVISION 3. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E, THE LD. CIT(A) ERRED IN HOLDING THAT PAYMENT OF RS.1,77 ,66,242/- MADE TO VARIOUS MILK SOCIETIES ON ACCOUNT OF MILK P URCHASE PRICE DIFFERENCE IS NOT LIABLE FOR TDS U/S 194H IGN ORING THE SUBSTANCE OF THE MATTER THAT SUCH MILK SOCIETIES PR OVIDE SERVICE OF FACILITATING PURCHASE OF MILK BY THE ASS ESSEE FROM CATTLE OWNERS AND ARE THEREFORE LIABLE FOR TDS. 2.1 AT THE OUTSET OF THE HEARING, THE LD. AR OF THE ASSESSEE SUBMITTED THAT THE ISSUES RAISED BY THE REVENUE IN THIS APPEA L ARE COVERED VIDE ORDER DATED 04-03-2016 OF ITAT COORDINATE BENCH IN ASSES SEE'S OWN CASE (IN ITA NO. 87/JP/2015 FOR THE ASSESSMENT YEAR 2011-12 AND IN ITA NO. 96/JP/2015 OF REVENUE FOR THE ASSESSMENT YEAR 2011- 12). THE LD. AR FURTHER SUBMITTED THAT THE LD. CIT(A) HAS GRANTED T HE RELIEF TO THE ASSESSEE ON THE BASIS OF DECISION OF THE ITAT COORDINATE BEN CH IN ASSESSEE'S OWN CASE FOR THE ASSESSMENT YEAR 2008-09 IN ITA NO. 277 /JP/2013 ASSESSEE AND IN ITA NO. 383/JP/2013 REVENUE BY OBSERVING A T PARA 4.3. OF HIS ORDER WHICH IS REPRODUCED AS UNDER:- 4.3 I HAVE CAREFULLY CONSIDERED THE FACTS OF THE CASE AND THE SUBMISSION O THE LD. AR . AO MADE THE DISAL LOWANCE ITA NO. 33/JP/2016 THE ACIT, CIRCLE- SIKAR VS. SIKAR & JHUNJHUNU ZILA DUGDH UTPADAK SAHAKARI SANG LTD.SIKAR . 3 OF RS. 1,77,66,242/- BY HOLDING THAT PAYMENT OF MIL K PRICE PURCHASE DIFFERENCE TO MILK SOCIETIES IS PAYMENT OF COMMISSION AND THEREFORE, ASSESSEE IS LIABLE FOR DE DUCTION OF TAX AT SOURCE U/S 194H WHICH IT FAILED TO DEDUCT. T HE LD. AR ARGUED THAT TOTAL BILL FOR MILK PURCHASE AND MARGIN IS RAISED BY THE SOCIETIES ITSELF AND MILK PRICE PURCHASE DIF FERENCE REPRESENTS MARGIN OF PROFIT. FURTHER, THE SIMILAR D ISALLOWANCE WAS MADE IN A.Y. 2008-09 WHICH HAS BEEN DELETED BY THE HON'BLE ITAT VIDE ITS ORDER DATED 14-07-2015. IT I S SEEN THAT THE HON'BLE ITAT IN ASSESSEE'S OWN CASE FOR A .Y. 2008- 09 WHEREIN SIMILAR DISALLOWANCE WAS MADE, DECIDED T HIS ISSUE IN FAVOUR OF THE ASSESSEE BY HOLDING AS UNDER :- APROPOS PAYMENT OF MILK PRICE DIFFERENCE, THE ASSESSEE SOCIETY DOES NOT PURCHASE MILK FROM CATTLE OWNER AS MISTAKENLY HELD BY LD. AO. SINCE THE LIABI LITY HAS BEEN FASTENED UNDER MISCONCEPTION OF FACTS, WE HOLD THAT THIS PAYMENT ALSO IS NOT LIABLE U/S 194H OF THE ACT. IN VIEW THEREOF, SECOND GROUND OF THE ASSE SSEE WITH REGARD TO DISALLOWANCE U/S 40(A)(IA) STANDS ALLOWED. RESPECTFULLY FOLLOWING THE SAME, THE DISALLOWANCE MADE BY THE AO IS DELETED. 2.2 THE LD. DR RELIED ON THE ORDER OF THE AO. 2.3 WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE MATERIALS AVAILABLE ON RECORD. IT EMERGES FROM THE RECORD THA T IN THE CASE OF THE ASSESSEE, RELIEF HAS BEEN GRANTED BY THE LD. CIT(A) ON THE BASIS OF THE DECISION OF ITAT COORDINATE BENCH IN ASSESSEE'S OWN CASE (SUPRA). ITA NO. 33/JP/2016 THE ACIT, CIRCLE- SIKAR VS. SIKAR & JHUNJHUNU ZILA DUGDH UTPADAK SAHAKARI SANG LTD.SIKAR . 4 HENCE, RESPECTFULLY FOLLOWING THE DECISION OF COORD INATE BENCH IN ASSESSEE'S OWN CASE (SUPRA), WE DISMISS THE APPEAL OF THE REVENUE. 3.0 IN THE RESULT, APPEAL OF THE REVENUE IS DISMISS ED. ORDER PRONOUNCED IN THE OPEN COURT ON 14 /09/201 6. SD/- SD/- YFYR DQEKJ HKKXPUN (LALIET KUMAR) (BHAGCHAND ) U;KF;D LNL;@ JUDICIAL MEMBER YS[KK LNL;@ ACCOUNTANT MEMBER TK;IQJ@ JAIPUR FNUKAD@ DATED:- 14 /09/ 2016 *MISHRA VKNS'K DH IZFRFYFI VXZSF'KR@ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ@ THE APPELLANT- THE ACIT, CIRCLE-SIKAR, SIKAR 2. IZR;FKHZ@ THE RESPONDENT- /S. SIKAR & JHUNJHUNU ZILA DUGDH UT PADAK SAHAKARI SANG LTD. SIKAR 3. VK;DJ VK;QDRVIHY@ CIT(A). 4. VK;DJ VK;QDR@ CIT, 5. FOHKKXH; IZFRFUF/K] VK;DJ VIHYH; VF/KDJ.K] T;IQJ@ DR, ITAT, JAIPUR 6. XKMZ QKBZY@ GUARD FILE (ITA NO. 33/JP/2016) VKNS'KKUQLKJ@ BY ORDER, LGK;D IATHDKJ@ ASSISTANT. REGISTRAR