AIRPORT RETAIL P.LTD, FARIDABAD V. DEPUTY COMMISSIONER OF INCOME TAX CIRCLE (12)(1)(1), MUMBAI

ITA 5111/MUM/2017

• Counselvise Citation: [2019] 118 COUNSELVISE.COM (IT) 3767 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 6 month(s) 11 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 12-02-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2011-2012
• Appeal Filed On: 01-08-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SATISH CHANDRA RAJORE
• Keywords: Rule of consistency
• Section: 40(a)(ia)

Judgement Text

IN THE INC OME TAX APPELLATE TRIBUNAL A BENCH, MUMBAI BEFORE HONBLE SH. SANDEEP GOSAIN , J M & HONBLE SH. G. MANJUNATHA , A M ./ I.T.A. NO . 5111 /MUM/201 7 ( / ASSESSMENT YEAR: 2011 - 12 ) AIRPORT RETAIL PVT. LTD. 338, 3 RD FLOOR, OM SHUBHAM TOWER, NEELAM BATA ROAD, NIT, FARIDABAD, HARYANA PIN - 121001 / VS. DY. COMMISSIONER OF INCOME TAX CIRCLE 1 2(1)(1), MUMBAI PIN - ./ ./ PAN NO. AA FCA9796H ( / APPELLANT ) : ( / RESPONDENT ) / APPELLANT BY : SHRI ALI ASGER RAMPURAWALA , A R / RESPONDENTBY : SHRI SATISHCHANDRA RAJORE, DR / DATE OF HEARING : 15 .01 .201 9 / DATE OF PRONOUNCEMENT : 12.02.2019 / O R D E R PER SANDEEP GOSAIN, J UDICIAL MEMBER : THE P RESENT APPE AL FILED BY THE ASSESSEE IS AGAINST THE ORDER OF LD. CIT (APPEAL) 20, MUMBAI DATED 04.04 .17 F OR AY 20 11 - 12 . 2 I.T.A. NO. 5111 /MUM/201 7 AIRPORT RETAIL PVT. LTD. 2 . THE SOLITARY CONTESTED GROUND RAISED BY THE ASSESSEE RELATES TO CHALLENGING THE ORDER OF LD. CIT (A) IN CONFIRMING THE DISALLOWANCE OF RS. 2,383,571/ - MADE BY AO U/S 40(A)(IA) OF THE I.T. ACT ON THE ALLEGED GROUND THAT THE ASSESSEE HAS FAILED TO DEDUCT TAX AT SOURCE U/S 194H OF THE ACT IN RESPECT OF CHARGES PAID FOR COLLECTION AND DEPOSIT OF FOREIGN EXCHANGE BY AUTHORIZED MONEY COLLECTOR /EXCHANGER INTO THE ASSESSEES EEFC ACCOUNT. 3 . LD. AR APPEARING ON BEHALF OF THE ASSES SEE SUBMITTED BEFORE US THAT THIS GROUND IS COVERED BY THE ORDER OF HONBLE ITAT IN ITA NO. 158 & 1762/MUM/14 (FOR AY 2008 - 09 & 2009 - 10) AND 4816/MUM/15 ( FOR AY 2010 - 11 ) IN ASSESSEES OWN CASE , WHEREIN THE IDENTICAL GROUND RA ISED IN THE PRESENT APPEAL HAS ALREADY BEEN DECIDED ON MERITS. 4 . ON THE OTHER HAND, LD. DR FAIRLY AGREED TO THE CONTENTION OF LD. AR THAT THE ISSUE IS COVERED IN FAVOUR OF ASSESSEE. 5 . WE HAVE HEARD COUNSELS FOR BOTH THE PARTIES AND WE HAVE ALSO PERUSED THE MATERIAL PLACED ON RECORD AS WELL AS THE ORDERS 3 I.T.A. NO. 5111 /MUM/201 7 AIRPORT RETAIL PVT. LTD. PASSED BY REVENUE AUTHORITIES. WE FIND THAT THE IDENTICAL GROUND HAS ALREADY BEEN DECIDED BY THE COORDINATE BENCH OF HONBLE ITAT IN ITA NO. 158 & 1762/MUM/14 (FOR AY 2008 - 09 & 2009 - 10) AND 4816/MUM/15 (FOR AY 2010 - 11) IN ASSESSEES OWN CASE . THE OPERATIVE PORTION OF THE ORDER OF HONBLE ITAT PASSED IN I T A NO .158 & 1762/MUM/14 (FOR AY 2008 - 09 & 2009 - 10) IS CONTAINED IN PARA NO. 2 5 OF ITS ORDER AND THE SAME IS REPRODUCED BELOW: - 25. WE HAVE CONSIDERED THE SUBMISSIONS OF THE PARTIES AND PERUSED THE MATERIAL AVAILABLE ON RECORD. AS FAR AS PAYMENT TO BANK TOWARDS CREDIT CARD CHARGES IS CONCERNED, AS PER THE DECI SION RELIED UPON BY THE LEARNED AUTHORISED REPRESENTATIVE CITED SUPRA, PROVISIONS OF SECTION 194H ARE NOT APPLICABLE AS THE BANK MAKES PAYMENTS TO THE ASSESSEE AFTER DEDUCTING CERTAIN FEES AND IT IS NOT A COMMISSION. IN VIEW OF THE AFORESAID, NO DISALLOWAN CE UNDER SECTION 40(A)(IA) CAN BE MADE IN RESPECT OF PAYMENTS MADE TO BANK TOWARDS CREDIT CARD CHARGES. AS FAR AS THE AMOUNT PAID TOWARDS CHARGES FOR CONVERSION OF FOREX INTO CASH, WE ARE OF THE VIEW THAT THE MATTER NEEDS RE EXAMINATION IN VIEW OF ASSESSE ES SUBMISSIONS THAT THERE IS NO PRINCIPAL AGENT RELATIONSHIP BETWEEN THE ASSESSEE AND THOMAS COOK, 4 I.T.A. NO. 5111 /MUM/201 7 AIRPORT RETAIL PVT. LTD. THEREFORE, PROVISIONS OF SECTION 194H IS NOT APPLICABLE. WE HAVE NOTICED, THOUGH, IN THE COURSE OF THE PROCEEDINGS BEFORE THE DRP, THE ASSESSEE HAD SUBMITTE D COPIES OF AGREEMENT WITH BANK AS WELL AS WITH THOMAS COOK INDIA LTD., THE AUTHORITIES CONCERNED HAVE NOT PROPERLY EXAMINED THE ISSUE TO ASCERTAIN THE FACT WHETHER THERE IS ANY PRINCIPAL AGENT RELATIONSHIP BETWEEN THE ASSESSEE AND THOMAS COOK INDIA LTD. W E, THEREFORE, SET ASIDE THE ISSUE TO THE FILE OF THE ASSESSING OFFICER FOR FRESH CONSIDERATION AFTER PROVIDING ADEQUATE OPPORTUNITY OF HEARING TO THE ASSESSEE. GROUND NO.2, IS ALLOWED AND GROUND NO.3 IS ALLOWED FOR STATISTICAL PURPOSES. 6. AFTER HAVING GO NE THROUGH THE FACTS OF THE PRESENT CASE AS WELL AS CONSIDERING THE ORDERS PASSED BY REVENUE AUTHORITIES AND HONBLE ITAT AS MENTIONED ABOVE IN ASSESSEES OWN CASE , W E FIND THAT THE IDENTICAL ISSUE HAS ALREADY BEEN DECIDED BY THE HONBLE ITAT IN ITA NO. 158 & 1762/MUM/14 (FOR AY 2008 - 09 & 2009 - 10) AND 4816/MUM/15 (FOR AY 2010 - 11) IN ASSESSEES OWN CASE . T HEREFORE , RESPECTFULLY FOLLOWING THE DECISION OF THE COORDINATE BENCH OF HONBLE ITAT AND IN ORDER TO MAINTAIN 5 I.T.A. NO. 5111 /MUM/201 7 AIRPORT RETAIL PVT. LTD. JUDICIAL CONSISTENCY , WE APPLY THE SAME FINDINGS IN THE PRESENT CASE WHICH ARE APPLICABLE MUTATIS MUTANDIS IN THE PRESENT CASE. 7. WHILE ARRIVING AT THE AFORESAID DECISION, WE ARE GUIDED BY THE DECISION OF HONBLE SUPREME COURT IN THE CASE OF RADHASWAMY SATSANG VRS. CIT (1992) 193 ITR 321 (SC) THAT RULE OF CONSISTENCY NEEDS TO BE FOLLOWED. THUS THE ABOVE GROUND RAISED BY THE ASSESSEE STANDS ALLOWED FOR STATISTICAL PURPOSES. WE ORDER ACCORDINGLY. 8 . IN THE NET RESULT, THE APPEAL FILED BY THE ASSESSEE STANDS A LLOWED FOR STATISTICAL PURPOSES WITH NO ORDER AS TO COST. ORDER PRONOUNCED IN THE OPEN COURT ON 12 TH FEB, 2019. SD/ - SD/ - ( G. MANJUNATHA ) (SANDEEP GOSAIN) / A COUNTANT MEMBER / JUDICIAL MEMBER MUMBAI ; DATED : 12 . 02 .201 9 SR.PS . DHANANJAY 6 I.T.A. NO. 5111 /MUM/201 7 AIRPORT RETAIL PVT. LTD. / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT 3. ( ) / THE CIT(A) 4. / CIT - CONCERNED 5. , , / DR, ITAT, MUMBAI 6. / GUARD F I LE / BY ORDER, . / (DY./ASSTT.REGISTRAR) , / ITAT, MUMBAI