DCIT, New Delhi V. M/s. Om Pizza & Eats India Pvt. Ltd., New Delhi

ITA 6471/DEL/2015

• Counselvise Citation: [2017] 127 COUNSELVISE.COM (IT) 4464 (ITAT-DELHI)
• Duration Of Justice: 1 year(s) 9 month(s) 11 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 18-09-2017
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: C
• Assessment Year: 2012-2013
• Appeal Filed On: 07-12-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ARUN KUMAR YADAV SENIOR

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL (DELHI BENCH C : NEW DELHI) BEFORE SHRI B.P. JAIN, ACCOUNTANT MEMBER AND SHRI KULDIP SINGH, JUDICIAL MEMBER ITA NO.6471/DEL./2015 (ASSESSMENT YEAR : 2012-13) DCIT, CIRCLE 19 (1), VS. M/S. OM PIZZA & EATS INDIA PVT.LTD., NEW DELHI. SHOP NO.40, 41, & 42, WEST GATE MALL, 3 RD FLOOR, RAJOURI GARDEN, NEW DELHI - 110 027. (PAN : AAACO7685C) (APPELLANT) (RESPONDENT) ASSESSEE BY : NONE REVENUE BY : SHRI ARUN KUMAR YADAV, SENIOR DR DATE OF HEARING : 30.08.2017 DATE OF ORDER : 18.09.2017 O R D E R PER KULDIP SINGH, JUDICIAL MEMBER : APPELLANT, DEPUTY COMMISSIONER OF INCOME-TAX, CIRC LE 19 (1), NEW DELHI (HEREINAFTER REFERRED TO AS THE REV ENUE), BY FILING THE PRESENT APPEAL SOUGHT TO SET ASIDE THE IMPUGNED ORDER DATED 28.09.2015 PASSED BY THE COMMISSIONER OF INCOME-TAX (APPEALS)- 7, NEW DELHI, FOR THE ASSESSMENT YEARS 2012-13 ON T HE GROUNDS INTER ALIA THAT :- ITA NO6471/DEL./2015 2 ON THE FACTS AND THE CIRCUMSTANCES OF THE CASE, TH E LD.CIT(A) ERRED IN LAW IN DELETING THE ADDITION OF RS.44,81,395/- TREATING THE NOTIFICATION NO.56/2012 DATED 31.12.2012 EFFECTIVE FROM 01.01.2013 FOR THE DEDUCTION OF TAX PAYMENT TO INDIAN BANK UNDER THE INCOME-TAX ACT, 1961 AS MERELY OF CLARIFICATORY IN NATURE. 2. BRIEFLY STATED THE FACTS NECESSARY FOR ADJUDICAT ION OF THE CONTROVERSY AT HAND ARE : DURING THE SCRUTINY PROCE EDINGS, ASSESSING OFFICER NOTICED THAT OUT OF TOTAL CHARGES OF RS.44,81,395/-, ASSESSEE PAID COMMISSION WITHOUT DE DUCTING TDS ON THE SAME. ASSESSEE WAS CALLED UPON TO EXPLAIN A S TO WHY THE AMOUNT OF RS.44,81,395/- CLAIMED AS EXPENSES BE NOT DISALLOWED. ASSESSEE CLAIMED THE SAID AMOUNT NOT AS COMMISSION. BEING DIS- SATISFIED WITH THE EXPLANATION FURNISHED BY THE ASS ESSEE, AO PROCEEDED TO HOLD THAT THE ASSESSEE COMPANY WAS DUT Y BOUND TO DEDUCT TDS UNDER SECTION 194H OF THE INCOME-TAX ACT , 1961 (FOR SHORT THE ACT) QUA PAYMENT OF COMMISSION OF RS.44 ,81,395/- TO THE BANK AND THEREBY FAILED TO COMPLY WITH THE PROV ISIONS U/S 40(A)(IA) OF THE ACT. CONSEQUENTLY, THE AO AFTER DI SALLOWING THE AMOUNT OF RS.44,81,395/- ADDED THE SAME BACK TO THE INCOME OF THE ASSESSEE U/S 40(A)(IA) OF THE ACT. 3. ASSESSEE CARRIED THE MATTER BY WAY OF FILING APP EAL BEFORE THE LD. CIT (A) WHO HAS DELETED THE DISALLOWANCE OF RS.44,81,395/- BY ALLOWING THE APPEAL. FEELING AGGRIEVED, THE REV ENUE HAS COME ITA NO6471/DEL./2015 3 UP BEFORE THE TRIBUNAL BY WAY OF CHALLENGING THE IM PUGNED ORDER PASSED BY LD. CIT (A). 4. ASSESSEE HAS NOT PREFERRED TO PUT IN APPEARANCE DESPITE ISSUANCE OF THE NOTICE AND CONSEQUENTLY, WE PROCEED ED TO DECIDE THE PRESENT APPEAL WITH THE ASSISTANCE OF THE LD. D R AS WELL AS ON THE BASIS OF DOCUMENTS AVAILABLE ON THE FILE. 5. WE HAVE HEARD THE LD. DEPARTMENTAL REPRESENTATIV E FOR THE REVENUE TO THE APPEAL, GONE THROUGH THE DOCUMENTS R ELIED UPON AND ORDERS PASSED BY THE REVENUE AUTHORITIES BELOW IN T HE LIGHT OF THE FACTS AND CIRCUMSTANCES OF THE CASE. 6. UNDISPUTEDLY, THE AO DISALLOWED THE EXPENSES CLA IMED BY THE ASSESSEE TO THE TUNE OF RS.44,81,395/- BY INVOK ING NOTIFICATION NO.56/2012-NON DEDUCTION OF TDS ON CERTAIN CASES IS SUED BY THE CBDT VIDE F.NO.275/53/2012-IT(B)/SO 3069(E) DATED 31.12.2012. THIS IS ALSO NOT IN DISPUTE THAT THIS NOTIFICATION IS OPERATIVE W.E.F. 01.01.2013 WHEREAS PRESENT APPEAL QUA AY 2012- 13. 7. KEEPING IN VIEW THE AFORESAID UNDISPUTED POSITIO N OF LAW AS PER NOTIFICATION NO.56/2012, CIT (A) PROCEEDED TO D ELETE THE ADDITION MADE BY THE AO BY RELYING UPON THE DECISIO N RENDERED BY ITAT, MUMBAI IN CASE OF KOTAK SECURITIES LIMITED VS . DCIT . ITA NO6471/DEL./2015 4 8. ASSESSEE IN ITS SUBMISSIONS MADE BEFORE THE LD. CIT (A) ALSO RELIED UPON THE JUDGMENT OF HONBLE DELHI HIGH COUR T IN CASE CITED AS CIT VS. JDS APPARELS PRIVATE LIMITED PASSED IN ITA NO.608/2014 DATED 18.11.2014 WHEREIN IT IS HELD BY HONBLE HIGH COURT THAT CHARGES DEDUCTED BY BANK FOR USE OF SWIP E MACHINES FOR SALES THROUGH CREDIT CARDS IS NOT COMMISSION AN D HENCE TDS IS NOT DEDUCTIBLE AND AS SUCH, SECTION 194H IS NOT APP LICABLE. 9. IN VIEW OF WHAT HAS BEEN DISCUSSED ABOVE AND FOL LOWING THE DECISION RENDERED BY HONBLE DELHI HIGH COURT IN CA SE CITED AS CIT VS. JDS APPARELS PRIVATE LIMITED (SUPRA), WE ARE OF THE CONSIDERED VIEW THAT THE ASSESSEE WAS NOT REQUIRED TO DEDUCT TDS ON CREDIT CARD COMMISSION AND SERVICES CHARGES WHIC H IS OUTSIDE THE PURVIEW OF SECTION 194H. HENCE, WE FIND NO ILL EGALITY OR PERVERSITY IN THE IMPUGNED ORDER AND CONSEQUENTLY P RESENT APPEAL FILED BY THE REVENUE IS HEREBY DISMISSED. ORDER PRONOUNCED IN OPEN COURT ON THIS 18 TH DAY OF SEPTEMBER, 2017. SD/- SD/- (B.P. JAIN) (KULDIP SING H) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED THE 18 TH DAY OF SEPTEMBER, 2017 TS ITA NO6471/DEL./2015 5 COPY FORWARDED TO: 1.APPELLANT 2.RESPONDENT 3.CIT 4.CIT(A)-7, NEW DELHI. 5.CIT(ITAT), NEW DELHI. AR, ITAT NEW DELHI.