ITO, Rohtak V. Smt. Kavita, Rohtak

ITA 5106/DEL/2012

• Counselvise Citation: [2016] 132 COUNSELVISE.COM (IT) 7686 (ITAT-DELHI)
• Duration Of Justice: 3 year(s) 7 month(s) 16 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 19-05-2016
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: D
• Next Hearing Date: 12-05-2016
• Assessment Year: 2009-2010
• Appeal Filed On: 03-10-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Section: 194C

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH D , NEW DELHI BEFORE SHRI H.S. SIDHU, JUDICIAL MEMBER AND SHRI J. SUDHAKAR REDDY, ACCOUNTANT MEMBER ITA NO. 510 6 /DEL/201 2 AY: 200 9 - 10 ITO, WARD 2 VS. SMT. KAVITA ROHTAK 8, BANK COLONY, ROHTAK PAN: AGMPK 6635 M (APPELLANT) (RESPONDENT) APPELLANT BY : SH. T.JAMES SINGSON, SR. D.R. RESPONDENT BY : SH. ANIL KUMAR JAIN, ADV. ORDER PER J. SUDHAKAR REDDY, ACCOUNTANT MEMBER THIS IS AN APPEAL FILED BY THE REVENUE DIRECTED AGAINST THE ORDER OF THE LD. COMMISSIONER OF INCOME TAX (APPEALS) , ROHTAK DATED 24.7.2013 PERTAINING TO THE ASSESSMENT YEAR (A.Y.) 2009 - 10. 2. FACTS IN BRIEF : - BRIEF FACTS AS RECORDED IN THE ORDER OF THE LD.CIT(A) ARE AS UNDER: - 2.1. THE APPELLANT, MAIN DISTRIBUTOR (MD) OF M/S VODAFONE FOR ROHTAK DISTRICT UNDER THE NAME AND STYLE OF M/S VM TELECONNECT, FILED RETURN OF INCOME DECLARING TOTA L INCOME OF_ RS 2.92,360 - / - . DURING THE COURSE OF ASSESSMENT PROCEEDINGS, THE AO NOTED FROM FORM 26AS DOWNLOADED FROM ITD DATA BASE THAT THE APPELLANT RECEIVED INCOME IN THE NATURE OF CONTRACTS AND COMMISSION AMOUNTING TO RS 72,52,052/ - FROM M/S VODAFONE ON WHICH TDS AMOUNTING TO RS 2,36,281/ - HAS BEEN DELETED U/S 194C AND 194H OF THE ACT. THE A O NOT E D THAT THESE RECEIPTS HAVE NOT BEEN REFLECTED IN THE P&L A/C. WHEN CONFRONTED, THE APPELLANT FILED RE - CASTED P&L A/C AND EVEN THIS FAILED TO RECONCILE THE FIGURES APPEARING IN FORM 26AS. 2 . 1 THE APPELLANT WAS ASKED TO FILE EVIDENCE IN RESPECT OF THE FOLLOWIN G ITA 5106/DEL/2012 A.Y. 2009 - 10 MRS. KAVITA VS. ITO, WARD 2, ROHTAK 2 EXPENDITURE CLAIMS AND THE APPELLANT VIDE REPLY DATED 22.12.2011 SUBMITTED AS UNDER: ASSESSEE VIDE HIS REPLY DATED 22.12.2011 SUBMITTED AS UNDER: - (L)THE AMOUNT RECEIVED BY THE ASSESSEE AS PER TDS CERTIFICATE IS NOT A COMMISSION, RATHER IT IS THE AMOUNT RECEIVED FROM COMPANY I.E. VODAFONE ESSAR DIGILINK LTD. TO REIMBURSE IT TO ASSISTANT DISTRIBUTORS I.E. A.D. THE COMPANY HAS TO PAY TO THE ADS AMOUNT IN SHA PE OF RENT, SALARY, DD, CHEQUES, PROMOTIONAL SCHEMES ETC. AND THAT THEY PASS ON THROUGH MASTER INCOME SUCH AS DISCOUNT, COMMISSION ETC. THE CHART SHOWING THE AMOUNT RECEIVED & REIMBURSEMENT MADE TO THE ASSISTANT DISTRIBUTOR IS ATTACHED. ( 2 ) THE AMOUNT OF RS 13,71,267/ - CANNOT BE ADDED TO THE INCOME U/S 40 (A) (IA) OF THE INCOME TAX ACT 1961 AS THERE IS NO LIABILITY TO DEDUCT TAX AS THE AMOUNT IS RECEIVED AS REIMBURSEMENT TO BE MADE TO ASSISTANT DISTRIBUTORS. ( 3 ) IN SUPPORT OF MY CONTENTION, COP IES OF LEDGER ACCOUNTS OF ADS ARE ATTACHED. 2 . 3 THE AO HELD THAT THE CONTENTION OF THE APPELLANT IS NOT ACCEPTABLE AS SHE FAILED TO DISCLOSE TRUE FACTS IN THE RETURN OF INCOME. FURTHER, THE CONTENTION THAT THESE PAYMENTS ARE NOT SUBJECT TO TDS IS NOT ACCEPTABL E. ON SIMILAR PAYMENTS RECEIVED BY THE APPELLANT, M/S VODAFONE HAS DEDUCTED TDS AND ON THE SAME SET OF CIRCUMSTANCES AND ON THE SAME TYPE OF PAYMENTS, THE CLAIM OF THE APPELLANT THAT SHE HAS NOT DEDUCTED TDS IS NOT SUSTAINABLE. FURTHER, THE 'APPELLANT HAS FAILED TO FURNISH COMPLETE ADDRESS OF THE PERSONS TO WHOM THESE PAYMENTS HAVE BEEN MADE AND HAS ALSO NOT FILED ANY CONFIRMATIONS. IN VIEW OF THE ABOVE, THE AO MADE ENTIRE ADDITION OF RS 72,52,052/ - , BEING THE RECEIPTS FROM M/S VODAFONE AS REFLECTED IN FORM 26AS, WHICH HAVE NOT BEEN DISCLOSED IN THE RETURN OF INCOME. S.NO. A/C HEAD FIGURE AS PER ORIGINAL P&L ACCOUNT (RS) FIGURE AS PER REVISED P&L ACCOUNT (RS) 1 . DISCOUNT 62,000/ - 13,71,267/ - 2. INTEREST 2,02,823/ - 2,42,877/ - 3. SALARY (CLAIMED) 10,65,345/ - ITA 5106/DEL/2012 A.Y. 2009 - 10 MRS. KAVITA VS. ITO, WARD 2, ROHTAK 3 3. AGGRIEVED THE ASSESSEE CARRIED THE MATTER IN APPEAL . 3.1. THE LD.CIT ( A) GRANTED RELIEF BY OBSERVING : (A) THE RECEIPT OF RS.10,65,345/ - FROM VODAF ONE WAS ON ACCOUNT OF REIMBURSEMENT OF SALARY ON WHICH THE ASSESSEE HAS NOT EARNED ANY PROFIT. (B) RECEIPT OF DISCOUNT OF RS.13,09,267/ - FROM M/S VODA F ONE WAS ON ACCOUNT OF REIMBURSEMENT OF AMOUNTS PAID TO A D S ON WHICH ALSO ASSESSEE HAS NOT EARNED ANY PROFIT. (C ) THESE ISSUES WERE CLARIFIED BY WAY OF RECASTING OF PROFIT AND LOSS A/C FILED BEFORE THE A.O. (D) AS REGARDS THE INCENTIVE TO RETAILERS OF RS.48,77,440/ - , THE SAME HAS BEEN PAID DIRECTLY BY M/S VODA F ONE AND WAS NOT RO U TED THROUGH THE ASSESSEE. JUST BECAUSE VODA F ONE CREDITED THE TDS TO T HE ACCOUNT OF THE ASSESSEE, THE AMOUNT IN QUESTION DOES NOT BECOME THE INCOME OF THE ASSESSEE. (E ) AS AN AMOUNT OF RS.48,77,440/ - DOES NOT FORM PART OF THE RECEIPTS OF THE ASSESSEE, CORRESPONDING CREDIT OF TDS OFRS.1,10,767/ - CANNOT BE GIVEN TO THE ASSESS EE. 4. WE FIND NO INFIRMITY IN THIS ORDER. THE ISSUE IS NO MORE RES INTEGRA IN VIEW OF THE COORDINATE BENCH DECISION IN ITA 46 7 9/DEL/2012 FOR THE A.Y. 2009 - 10 IN THE CASE OF ITO VS. SHRI BASANT KUMAR ORDER DT. 31 ST MARCH, 2015, WERE ON IDENTICAL FACTS, T HE ISSUE WAS RESOLVED IN FAVOUR OF THE ASSESSEE. 5. CONSISTENT WITH THE VIEW TAKEN THEREIN WE UPHOLD THE ORDER OF THE LD.CIT(A) AND DISMISS THE APPEAL OF THE REVENUE. 6 . IN THE RESULT REVENUE S APPEAL IS DISMISSED . ORDER PRONOUNCED IN THE OPEN COURT ON 19 TH MAY, 2016 . SD/ - SD/ - (H.S.SIDHU ) (J. SUDHAKAR REDDY) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: THE 19 TH MAY, 2016 M ANGA ITA 5106/DEL/2012 A.Y. 2009 - 10 MRS. KAVITA VS. ITO, WARD 2, ROHTAK 4 COPY FORWARDED TO: - 1 . APPELLANT 2 . RESPONDENT 3 . CIT 4 . CIT(A) 5 . DR, ITAT - TRUE COPY - BY ORDER, ASSISTANT REGISTRAR