ITO, New Delhi V. M/s Ogaan Media Pvt. Ltd., New Delhi

ITA 5512/DEL/2016

• Counselvise Citation: [2019] 115 COUNSELVISE.COM (IT) 6783 (ITAT-DELHI)
• Duration Of Justice: 2 year(s) 11 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 18-10-2019
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: E
• Assessment Year: 2013-2014
• Appeal Filed On: 25-10-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: RAKHI BIM AL
• Keywords: Question of law; TDS
• Section: 143(3); 40(a)(ia)

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH E, NEW DELHI ! ! ! ! '#' '#' '#' '#' $ $ $ $ BEFORE MS. SUSHMA CHOWLA, JUDICIAL MEMBER & SHRI ANADEE NATH MISSHRA, ACCOUNTANT MEMBE R % %% % / ITA NO.5511 & 5512/DEL/2016 && && && && / ASSESSMENT YEAR: 2012-13 & 2013-14 THE ITO, WARD-19(1), NEW DELHI. .......... !' /APPELLANT VS M/S. OGAAN MEDIA PVT.LTD., H-2, HAUZ KHAS VILLAGE, NEW DELHI-110016. PAN-AAACO1078K . ()!' / RESPONDENT !'*+' / APPELLANT BY : MS. RAKHI BIMAL, SR.DR ()!'*+' / RESPONDENT BY : MS. RAGINI HANDA, CA *,-# / DATE OF HEARING : 17.10.2019 ./*,-# / DATE OF PRONOUNCEMENT: 18.10.2019 ' ' ' ' / ORDER PER SUSHMA CHOWLA, JM: BOTH APPEALS FILED BY REVENUE ARE AGAINST ORDER OF CIT(A)- 36, NEW DELHI, DATED 30.08.2016 RELATING TO ASSESSMENT YEARS 2012-13 & 2013-14 PASSED UNDER SECTION 143(3) OF TH E INCOME-TAX ACT, 1961. ITA NO.5511/DEL/2016 ASSESSMENT YEAR 2012-13 PAGE | 2 2. BOTH THESE APPEALS RELATING TO THE SAME ASSESSEE ON SIMILAR ISSUE WERE HEARD TOGETHER AND ARE BEING DISPOSED OF BY TH IS CONSOLIDATED ORDER FOR THE SAKE OF CONVENIENCE. HOWEVER, IN ORDER TO A DJUDICATE THE ISSUE, WE MAKE REFERENCE TO THE FACTS IN ASSESSMENT YEAR 2012 -13. 3. THE ONLY ISSUE ARISING IN THE APPEAL FILED BY TH E REVENUE IS AGAINST THE DELETION OF ADDITION MADE ON ACCOUNT OF DISALLO WANCE U/S 40(A)(IA) OF THE ACT AT RS.2,32,72,757/- BY IGNORING THE EXPRESS PROVISION OF LAW U/S 194H AND THE CBDT CIRCULAR NO.715 DATED 08.08.2015. 4. THE LD.AR FOR THE ASSESSEE AT THE OUTSET POINTED OUT THAT THE ISSUE RAISED IN THE PRESENT APPEAL STAND SQUARELY COVERED BY THE ORDERS OF THE TRIBUNAL IN ASSESSEES OWN CASE. IT WAS ALSO POINT ED OUT THAT THE CIT(A) HAD RELIED ON THE ORDER OF THE TRIBUNAL IN THE EARL IER YEARS. THE LD. DR FOR THE REVENUE FAIRLY STATED THAT THE ISSUE HAS BE EN CONSIDERED BY THE TRIBUNAL IN EARLIER YEARS. 5. BRIEFLY IN THE FACTS OF THE CASE, THE ASSESSEE C OMPANY WAS ENGAGED IN THE BUSINESS OF PUBLICATION OF FASHION MAGAZINES . THE ASSESSING OFFICER DURING THE ASSESSMENT PROCEEDINGS NOTED THA T THE ASSESSEE HAD DEBITED EXPENDITURE ON ACCOUNT OF DISCOUNT. THE AS SESSING OFFICER WAS OF THE VIEW THAT AGAINST THE SAID EXPENDITURE, THERE W AS LIABILITY TO DEDUCT TAX AT SOURCE, WHICH WAS NOT FULFILLED BY THE ASSES SEE. THE ASSESSING OFFICER THUS, INVOKED THE PROVISIONS OF SECTION 40( A)(IA) OF THE ACT FOR NON- DEDUCTION OF TDS U/S 194H OF THE ACT. HENCE, THE D ISALLOWANCE OF ITA NO.5511/DEL/2016 ASSESSMENT YEAR 2012-13 PAGE | 3 RS.2.32 CRORE FOR ASSESSMENT YEAR 2012-13 AND RS.2. 84 CRORE FOR ASSESSMENT YEAR 2013-14. 6. THE CIT(A) IN TURN RELYING ON THE ORDERS OF THE TRIBUNAL IN ASSESSEES OWN CASE STARTING FROM ASSESSMENT YEARS 2006-07 TO 2010-11 AND ALSO ASSESSMENT YEAR 2011-12 DELETED THE AFORE SAID ADDITION. THE CIT(A) ALSO NOTED THAT THE APPEAL OF THE DEPARTMENT AGAINST THE ORDER OF THE TRIBUNAL HAS BEEN DISMISSED IN ITA NO.181 & 182 /2012, DATED 16.03.2012. 7. WE HAVE HEARD RIVAL CONTENTIONS AND PERUSED THE RECORD. THE ISSUE WHICH ARISES IN THE PRESENT APPEAL IS AGAINST THE L IABILITY OF THE ASSESSEE TO DEDUCT OR NOT TO DEDUCT TDS U/S 194H OF THE ACT ON THE AMOUNT OF DISCOUNTS PAID BY IT. THE ASSESSEE HAD BOOKED THE EXPENDITURE ON ACCOUNT OF VOLUME DISCOUNT AS WELL AS AGENCY COMMIS SION. THE CASE OF THE ASSESSING OFFICER WAS THAT THERE WAS REQUIREMEN T TO DEDUCT TAX AT SOURCE AND SINCE THE ASSESSEE HAD FAILED TO DO SO, THE DISALLOWANCE WAS MADE U/S 40(A)(IA) OF THE ACT. SIMILAR ISSUE HAS A RISEN IN THE CASE OF THE ASSESSEE STARTING FROM ASSESSMENT YEAR 2006-07 ONWA RDS. THE TRIBUNAL IN ITA NO.1990/DEL/2010 RELATING TO ASSESSMENT YEAR 2006-07 & ITA NO.3741/DEL/2011 RELATING TO ASSESSMENT YEAR 2007-0 8 VIDE CONSOLIDATED ORDER DATED 31.05.2011 HAVE HELD THAT THE EXPENDITURE BOOKED BY THE ASSESSEE BOTH ON ACCOUNT OF DISCOUNT AND/OR AGENCY COMMISSION WAS DISCOUNT AND THERE WAS NO REQUIREMEN T TO DEDUCT TAX AT SOURCE. THE RELEVANT FINDING OF THE ORDER OF THE T RIBUNAL ARE REPRODUCED ITA NO.5511/DEL/2016 ASSESSMENT YEAR 2012-13 PAGE | 4 AT PARA 6 AT PAGE 3 OF THE APPELLATE ORDER. WE ARE REFERRING TO THE SAME BUT NOT REPRODUCING THE SAME FOR THE SAKE OF CONVEN IENCE. 8. EVEN HONBLE DELHI HIGH COURT (SUPRA) VIDE ITS D ECISION DATED 16.03.2012 HAS DISMISSED THE APPEAL FILED BY THE RE VENUE AGAINST THE ORDER OF THE TRIBUNAL, HOLDING THAT NO SUBSTANTIAL QUESTION OF LAW ARISES IN THE CASE. ADMITTEDLY, THERE IS NO DIFFERENCE IN THE FACTUAL ASPECTS OF THE CASE WHEN COMPARED TO THE EARLIER YEARS. HENCE, FO LLOWING PARITY OF REASONING, WE UPHOLD THE ORDER OF CIT(A) AND DISMIS S THE GROUNDS OF APPEAL RAISED BY THE REVENUE. 9. THE FACTS AND ISSUE IN ITA NO.5511/DEL/2016 ARE SIMILAR TO THE FACTS AND ISSUE IN ITA NO.5512/DEL/2016 AND OUR DEC ISION IN ITA NO.5511/DEL/2016 SHALL APPLY MUTATIS MUTANDIS TO ITA NO.5512/DEL/2016. HENCE, GROUNDS RAISED BY THE REV ENUE IN THIS APPEAL ARE DISMISSED. 10. IN THE RESULT, BOTH APPEALS FILED BY THE REVENU E ARE DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 18 TH DAY OF OCTOBER, 2019. SD/- SD/- (ANADEE NATH MISSHRA) (SUSHMA CHOWLA) '# '# '# '# /ACCOUNTANT MEMBER /JUDICIAL MEMBER / DATED : 18 TH OCTOBER, 2019 . * AMIT KUMAR * ITA NO.5511/DEL/2016 ASSESSMENT YEAR 2012-13 PAGE | 5 '*(,12'1,3 COPY OF THE ORDER IS FORWARDED TO : 1. !' / THE APPELLANT; 2. ()!' / THE RESPONDENT; 3. 4 5 6 / THE CIT(A) 4. 178(, / DR, ITAT, DELHI 5. 89&: 3 GUARD FILE. ' ' ' ' / BY ORDER , )1,(, // TRUE COPY // <=> , ASSISTANT REGISTRAR, ITAT, DELHI