ITO, Chandigarh V. M/s Smart Dostrobitors, Chandigarh

ITA 652/CHANDI/2009

• Counselvise Citation: [2013] 120 COUNSELVISE.COM (IT) 2362 (ITAT-CHANDIGARH)
• Duration Of Justice: 3 year(s) 11 month(s) 14 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 22-05-2013
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 05-12-2012
• Assessment Year: 2006-2007
• Appeal Filed On: 08-06-2009
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: J S NAGARDR
• Assessee Lawyers: RAKESH GUPTA
• Keywords: Recovery proceedings; Non-deduction of tax
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL CHANDIGARH BENCH A, CHANDIGARH BEFORE SHRI T.R. SOOD, ACCOUNTANT MEMBER AND MS. SUSHMA CHOWLA, JUDICIAL MEMBER ITA NO.652/CHD/2009 (ASSESSMENT YEAR : 2006-07) THE INCOME TAX OFFICER, VS. M/S SMART DISTRIBUTOR S, WARD 1(2), PLOT NO.28/5,(NOW 24/4), CHANDIGARH. INDL. AREA, PHASE-2, CHANDIGARH. PAN: AAXFS8531M AND C.O.NO.43/CHD/2009 ARISING OUT OF ITA NO.652/CHD/2009 (ASSESSMENT YEAR : 2006-07) M/S SMART DISTRIBUTORS, VS. THE INCOME TAX OFFICE R, PLOT NO.28/5,(NOW 24/4), WARD 1(2), INDL. AREA, PHASE-2, CHANDIGARH. CHANDIGARH. PAN: AAXFS8531M (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI RAKESH GUPTA DEPARTMENT BY : SHRI J.S.NAGAR,DR DATE OF HEARING : 08.05.2013 DATE OF PRONOUNCEMENT : 22.05.2013 O R D E R PER SUSHMA CHOWLA, J.M, : THE APPEAL FILED BY THE REVENUE IS AGAINST THE ORD ER OF THE COMMISSIONER OF INCOME-TAX(APPEALS), CHANDIGARH DAT ED 24.04.2009 RELATING TO ASSESSMENT YEAR 2006-07 AGAINST THE ORD ER PASSED U/S 143(3) OF THE INCOME TAX ACT, 1961 (IN SHORT THE ACT). THE ASSESSEE HAS FILED CROSS OBJECTIONS AGAINST THE APPEAL FILED BY THE RE VENUE. 2 2. BOTH THE APPEAL OF THE REVENUE AND THE CROSS OBJ ECTIONS FILED BY THE ASSESSEE ON THE SIMILAR ISSUE WERE HEARD TOGETH ER AND ARE BEING DISPOSED OFF BY THIS CONSOLIDATED ORDER FOR THE SAK E OF CONVENIENCE. 3. THE ASSESSEE HAS WITHDRAWN THE CROSS OBJECTION A ND HENCE THE SAME ARE DISMISSED AS NOT PRESSED. 4. THE REVENUE IN ITA NO.652/CHD/2009 HAS RAISED FO LLOWING GROUND OF APPEAL: 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE C ASE, THE LEARNED C.I.T. (APPEAL) VIDE APPELLATE ORDER NO.327/P/08-09 HAS ER RED IN DELETING THE ADDITION OF RS.46,48,960/- UNDER THE HEAD DEAL ER`S SCHEME & INCENTIVE WHICH WAS MADE U/S 40(A)(IA) BY ACCEPTIN G THE CONTENTION OF THE ASSESSEE THAT IT WAS AN INCENTIVE FOR ENHANC ING THE SALES AND NO SERVICE PART WAS INVOLVED IN IT. 4. IT IS PRAYED THAT THE ORDER OF THE LD. CIT(A) B E CANCELLED AND THAT OF THE ASSESSING OFFICER MAY BE RESTORED. 5. THAT THE APPELLANT CRAVES LEAVE TO ADD OR AMEND ANY GROUNDS OF APPEAL BEFORE THE APPEAL IS HEARD OR DISPOSED OF F. 5. THE ONLY ISSUE ARISING IN THE APPEAL IS IN RELAT ION TO THE ALLOWABILITY OF EXPENDITURE CLAIMED UNDER THE HEAD DEALERS SCHEME & INCENTIVES AT RS.46,48,960/-. 6. THE BRIEF FACTS OF THE CASE ARE THAT THE ASSESSE E WAS ENGAGED IN THE BUSINESS OF SALE OF MOBILE CONNECTION OF M/S HUTCHI SON ESSAR SOUTH LTD. AND ALSO IN THE SALE AND PURCHASE OF PRODUCTS OF DA BUR. THE ASSESSEE HAD RECEIVED COMMISSION AND INCENTIVE ON THE SALE OF MO BILE CONNECTION OF M/S HUTCHISON ESSAR SOUTH LTD. AT RS.113.63 LACS. AS AGAINST THE SAME, THE ASSESSEE HAD CLAIMED EXPENDITURE OF RS.47.68 LA CS ON ACCOUNT OF DEALERS SCHEME & INCENTIVES. THE ASSESSEE HAD N OT DEDUCTED ANY TAX AT SOURCE OUT OF THE PAYMENT ON ACCOUNT OF DEALER S SCHEME & INCENTIVES. THE ASSESSEE WAS SHOW CAUSE TO EXPLAI N THE NATURE OF PAYMENTS AND ALSO TO JUSTIFY AS TO WHY THE TAX WAS NOT DEDUCTED OUT OF 3 THE SAID PAYMENTS. THE EXPLANATION OF THE ASSESSEE VIDE REPLY DATED 12.12.2008 WAS THAT THIS AMOUNT IS ALLOWED TO OUR DEALERS FOR PROVIDING THEM TO ENHANCE THE SALE OF THE PRODUCTS. BASICALL Y IT IS SCHEME/BONUS TO DEALERS FOR SELLING MORE HUTCH CONNECTION. IN T URN THEY ALSO PASS PART OF SCHEME AMOUNT TO THE CUSTOMERS FOR THE PURP OSE OF SALES PROMOTION OF THE PRODUCTS. MAINLY IT IS PROVIDED O N HUTCH. THESE ARE BASICALLY SALES PROMOTIONS EXPENSES INCURRED BY THE ASSESSEE FOR WHICH NO TDS IS REQUIRED TO BE DEDUCTED AS PER THE PROVIS IONS OF THE INCOME TAX ACT, 1961 . THE ASSESSING OFFICER WAS OF THE VIEW THAT THE S O CALLED INCENTIVES PAID UNDER THE DEALERS SCHEME & INCENT IVES WERE IN THE NATURE OF COMMISSION ON WHICH THE TAX AT SOURCE WAS DEDUCTIBLE, WHICH WAS NOT DEDUCTED AND HENCE WHY THE SAME SHOULD BE A LLOWED AS AN EXPENDITURE. FROM THE DETAILS FURNISHED BY THE ASS ESSEE, THE ASSESSING OFFICER NOTED THAT THERE WERE 195 CASES WHERE THE A MOUNT PAID TO EACH DEALER EXCEEDED RS.2500/- TOTALING RS.46.48 LACS. THE LIST OF SUCH DEALERS IS ENCLOSED AS ANNEXURE-A TO THE ASSESSMENT ORDER. THE ASSESSING OFFICER WAS OF THE VIEW THAT THE PROVISIO NS OF SECTION 194H OF THE ACT WERE APPLICABLE TO THE SAME. THE PLEA OF T HE ASSESSEE WAS THAT THE AMOUNTS PAID TO THE DEALERS WERE AS PER SCHEME OF THE COMPANY WHICH WAS PURELY TARGET OF THE TURNOVER BASED AND W AS DIRECTLY RELATABLE TO THE SALES OF THE PRODUCT OF THE COMPANY AND AS S UCH WAS NOT COMMISSION UNDER SECTION 194H OF THE ACT. THE ASSE SSING OFFICER NOTED THAT COPIES OF FEW OF ASSESSEES PURCHASE BILL, SALE BIL LS AND DETAILS OF PAYMENTS FALLING UNDER THE DEALERS SCHEME & INCEN TIVES WERE OBTAINED. A COPY OF ASSESSEES AGREEMENT WITH HUTC HISON ESSAR SOUTH LTD. (HESL) DATED APRIL 2007 WAS ALSO GIVEN BY THE ASSESSEE. THIS AGREEMENT DOES NOT REVEAL ANYTHING REGARDING THE FO RMULA AT WHICH COMMISSION/BROKERAGE HAS BEEN PAID BY HESL TO THE A SSESSEE. ASSESSEE COULD NOT SEPARARLY GIVEN THE METHOD AS PER WHICH I T RECEIVES 4 COMMISSION/BROKERAGE, DESPITE BEING ASKED FOR IT. NOR COULD IT EXPLAIN THE METHOD AT WHICH IT PAYS TO ITS DEALERS PAYMENT REFLECTED UNDER DEALERS SCHEME & INCENTIVES . THE ASSESSING OFFICER FURTHER OBSERVED AS UNDER: HOWEVER ASSESSEE'S REPRESENTATIVE STATED THAT SIMS ARE SOLD TO DEALERS AT RATES LESS THAN THEIR MRP. IN THIS REGARD FOUR I NVOICES WERE OBTAINED FROM THE ASSESSEE IN WHICH SIMS WITH HEIR MRP AT 99 WERE SOLD TO ASSESSEE'S DEALERS AT RATE OF RS.84. IT WAS FURTHER EXPLAINED THAT WHEN THESE SIMS GETS ACTIVATED THEN ON THE BASIS OF NUMB ER OF SIMS ACTIVATED BY EACH DEALERS, FURTHER AMOUNT IS PAID TO EACH DEALER WHICH IS REFLECTED UNDER THE TITLE 'DEALER'S SCHEME & INCENTIVE'. A LI ST OF A FEW DEALERS FOR A SMALL PERIOD, SHOWING NUMBER OF ACTIVATIONS BY EACH WAS ALSO GIVEN BY THE ASSESSEE. IN THIS LIST, ACTIVATIONS OF DEALERS RANGING FROM 1 TO 87 HAVE BEEN SHOWN. THIS ONLY MEANS THAT AMOUNTS PAID TO THE DEALERS UNDER THE HEAD 'DEALER'S SCHEME & INCENTIVE' ARE NO T TARGET BASED BUT THEY INVARIABLY GET THESE AMOUNT ON THE NUMBER OF A CTIVATIONS. AS PER ANNEXURE III TO THE AGREEMENT WITH HESL, ONE OF THE FORMALITY AT THE TIME OF SALE IS REGARDING PROPER VERIFICATION OF TH E IDENTITY OF THE CUSTOMERS IN RESPECT OF THE SALE OF PREPAID CARDS A ND PROPER DOCUMENTATION LIKE CUSTOMER AGREEMENT FORMS AND ENR OLLMENT FORMS. THUS THERE IS A SERVICE ASPECT WHICH IS INVOLVED IN THE SALE PROCESS. 7. THE ASSESSING OFFICER WAS OF THE VIEW THAT THIS PAYMENT FOR ACTIVATION OF SIMS IS CERTAINLY A PAYMENT RECEIVED BY THE DEALER ACTING (LIKE THE ACT OF DOCUMENTATION) ON BEHALF OF ANOTHE R PERSON(THE ASSESSEE IN THIS CASE) FOR SERVICES RENDERED(SERVICES OF DOC UMENTATION AND RETAINING THE DOCUMENTS OR SUBMITTING THEM TO THE A SSESSEE) IN THE COURSE OF SELLING OF GOODS(SIMS). A11 THE ELEMENTS OF THE INCLUSIVE DEFINITION OF COM MISSION GIVEN IN SECTION 194H ARE FULFILLED AND ON THE BASIS OF ABOV E DISCUSSION, IT IS HELD THAT THE PAYMENTS OF RS. 476S743/-GIVEN BY THE ASSESSEE TO ITS DEALERS DESCRIBED BY IT AS DEALERS' SCHEME & INCENT IVES ARE COMMISSIONS WITHIN THE MEANING OF SEC. 194H OF THE INCOME TAX ACT, 1961 ON WHICH NO TAX HAS BEEN DEDUCTED BY THE ASSES SEE AT SOURCE AND SO THE PAYMENT OF RS.4648960/- (ONLY IN THOSE CASES OU T OF A TOTAL OF RS.4768743 WHERE PAYMENT TO EACH DEALER EXCEED RS.2 500/-) CLAIMED AS EXPENDITURE BY THE ASSESSEE ARE DISALLOW ED U/S 40(A)(IA) OF THE INCOME TAX ACT, 1961 . 5 8. BEFORE THE CIT (APPEALS) THE ASSESSEE FURNISHED WRITTEN SUBMISSIONS WHICH ARE INCORPORATED UNDER PARA 7 AT PAGES 5 AND 6 OF THE APPELLATE ORDER, WHICH WERE FORWARDED TO THE ASSESS ING OFFICER, WHO IN TURN FURNISHED ITS REPORT WHICH IS INCORPORATED UND ER PARA 8 AT PAGES 6 AND 7 OF THE APPELLATE ORDER. THE CIT (APPEALS) AT PARA 10 HELD AS UNDER: 10. AFTER ANALYZING THE ENTIRE MATERIAL ON RECORD, I FIND THAT AS PER DOT'S REGULATIONS, EVERY CONSUMER HAS TO FILL UP THE IDENTIFICATION FORM. IT IS THE REGUL ATION OF THE GOVERNMENT WHICH HAS TO BE COMPLIED WITH BY THE COMPANY. THIS REQUIREMENT HAS BEEN NECESSITATED FOR SECURITY REASONS. ALL THE COMPANIES ARE REQUIRED TO OBTAIN THESE FORMS. IT IS STATED BY THE ASSESSEE TH AT THE DISTRIBUTOR I.E. THE ASSESSEE, ASKED THE DEALER TO GET THE FORM FILLED UP FROM THE CUSTOMERS WHICH ARE SENT TO THE COMPANY DIRECTLY. ACCORDING TO THE ASSESSING OFFICE R, SUCH DOCUMENTS COME WITHIN THE PURVIEW OF THE SERVI CES AND HENCE PROVISIONS OF SECTION 194H ARE APPLICABLE . IN MY VIEW, THE SALE CANNOT BE EFFECTIVE UNTIL THE CONSUMERS FURNISHED THE PRESCRIBED FORM. IT IS A STATUTORY REGULATION AND IS TO BE COMPLIED WITH BY ALL THE COMPANIES. IT IS PART OF THE SALE. IT IS NOT TH E CHOICE OF THE ASSESSEE MAT ANY SIM CAN BE GIVEN WITHOUT GETTING THE PRESCRIBED FORM. THE SIMS ARE ACTIVATED WHEN THE COMPANY GETS THOSE PRESCRIBED FORMS. THE ASSESSEE HAS GIVEN ADDITIONAL AMOUNTS TO THE DEALER S AS PART OF THE SALES. AS PER SECTION 194H, COMMISSION OF BROKERAGE INCLUDES ANY PAYMENT RECEIVED DIRECTLY OR INDIRECTLY BY THE PERSON ACTING ON BEHALF OF ANOTHE R PERSON FOR SERVICES RENDERED OR FOR ANY SERVICES IN THE COURSE OF BUYING AND SALE OF GOODS. IN THE PRESENT CASE, THE DEALERS ARE NOT PROVIDING ANY SERVICES IN THE COURSE OF BUYING & SELLING OF GOODS. THE FILLING UP OF THE PRESCRIBED FORM IS ONLY A STATUTORY REQUIREMENT IN THE COURSE OF BUYING THE GOODS FROM THE DISTRIBUTOR . IN ORDER TO ENFORCE THE STATUTORY REGULATION, SOME FUR THER INCENTIVE IS GIVEN TO THE DEALERS. IN MY VIEW, THIS DOES NOT COME WITHIN THE PURVIEW OF SERVICES RENDERED BY THE DEALER TO THE ASSESSEE. THE STAND OF THE ASSESSEE I S THAT SOME AMOUNT IS ALLOWED TO THE DEALERS TO ENHANCE TH E SALE OF THE PRODUCT. THE ASSESSING OFFICER HAS STAT ED THAT THE AMOUNTS ARE NOT PAID TO ENHANCE THE SALES. THESE ARE NOT TARGET BASED. THE DISCOUNT IS PAID TO THE DEALERS ON THE BASIS OF NUMBER OF ACTIVATIONS. IN M Y OPINION, THIS IS IN THE NATURE OF FURTHER DISCOUNT GIVEN TO THE DEALERS FOR GETTING THE MAXIMUM NUMBER OF ACTIVATIONS. THIS IS A STRATEGY ADOPTED BY THE ASSE SSEE TO ENHANCE THE SALES AS ULTIMATELY THE PARENT COMPA NY I.E. HUTCH WOULD BE WILLING TO GET MAXIMUM NUMBER OF ACTIVATIONS TO HAVE A WIDER MARKET SHARE AND PRESENCE, SCHEME AND INCENTIVE ARE LINKED TO 6 ENHANCING OF SALES. THE ASSESSEE BEING DISTRIBUTOR IS ALSO INTERESTED IN ENHANCING SALES. THE SALES WOULD DEFINITELY GET ENHANCED IF THERE ARE MAXIMUM NUMBER OF CONNECTIONS WHICH WOULD IN TURN BENEFIT THE ASSESSEE COMPANY AS THE COMPANY I.E. HUTCH WOULD CONTINUE THEIR DISTRIBUTORSHIP. ANY COMPANY WOULD B E INTERESTED IN THE MAXIMUM NUMBER OF ACTIVATIONS IN THIS COMPETITIVE WORLD. FOR ACHIEVING THIS PURPOSE, THE COMPANY IS MAKING ITS PRESENCE THROUGH DISTRIBUTORS, DEALERS, ETC. 9. THE CIT (APPEALS) ALLOWED THE CLAIM OF THE ASSES SEE HOLDING THAT THE PAYMENTS WERE INCENTIVES GIVEN TO THE DEALERS T O ENHANCE THE SALES AND WERE NOT SUBJECT TO TAX DEDUCTION AT SOURCE. 10. THE REVENUE IS IN APPEAL AGAINST THE ORDER OF T HE CIT (APPEALS). THE LEARNED D.R. FOR THE REVENUE AT THE OUTSET POIN TED OUT THAT SIMILAR ISSUE AROSE BEFORE DIFFERENT BENCHES OF THE TRIBUNA L WHEREIN SIMILAR ISSUE WAS DECIDED AGAINST THE ASSESSEE. THE LEARNE D D.R. FOR THE REVENUE FURTHER POINTED OUT THAT THE HON'BLE DELHI HIGH COURT IN CIT VS. IDEA CELLULAR LTD. (2010)[230 CTR (DELHI) 43] H AD HELD THAT THE COMMISSION OR DISCOUNT TO DISTRIBUTORS OF SIM CARD/ RECHARGE COUPON WAS COMMISSION AND WAS SUBJECT TO TDS UNDER SECTION 194 H OF THE ACT. THE LEARNED D.R. FOR THE REVENUE ALSO PLACED RELIANCE O N THE RATIO LAID DOWN BY THE HON'BLE KERALA HIGH COURT IN VODAFONE ESSAR CELLULAR LTD. VS. ACIT (2011) [332 ITR 255 (KER)]. SIMILAR ISSUE HAS BEEN LAID DOWN BY THE HON'BLE CALCUTTA HIGH COURT IN BHARTI CELLULAR LIMITED VS. ACIT (2011) 244 CTR (CAL) 185]. 11. THE LEARNED A.R. FOR THE ASSESSEE STRESSED THAT THE FACTS OF THE PRESENT CASE WERE DIFFERENT AND REFERENCE WAS MADE TO THE OBSERVATION OF THE ASSESSING OFFICER AT PAGE 4 OF THE ASSESSMENT O RDER. FURTHER IT WAS POINTED OUT THAT IN THE ABSENCE OF PRINCIPAL TO PRI NCIPAL RELATIONSHIP THERE IS NO MERIT IN HOLDING THAT SUCH EXPENDITURE WAS SUBJECT TO TAX 7 DEDUCTION AT SOURCE. RELIANCE WAS PLACED BY THE LE ARNED A.R. FOR THE ASSESSEE ON THE FOLLOWING DECISIONS: 1) GOVERNMENT MILK SCHEME VS. ACIT [98 ITD 306(PUNE)] 2) AHMEDABAD STAMP VENDORS ASSOCIATION VS. UNON OF INDIA [257 ITR 202 (GUJ)] 3) CIT VS. MOTHER DAIRY INDIA LTD. 249 CTR (DEL) 559]. 12. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE RECORD. THE ISSUE ARISING IN THE PRESENT APPEAL IS IN RELATION TO THE ALLOWABILITY OF EXPENDITURE BOOKED UNDER THE HEAD DEALERS SCHEME & INCENTIVES TOTALING RS.47.68 LACS. THE CLAIM OF THE ASSESSEE WAS THAT THE SAID AMOUNT WAS BEING PAID TO THE DEALER FOR ENHANCING T HE SALE OF THE PRODUCT OF THE ASSESSEE. IT WAS PLEADED BY THE ASS ESSEE THAT PHYSICALLY THE SAME WAS A SCHEME/BONUS ALLOWED TO THE DEALERS FOR SELLING MORE HUTCH CONNECTION AND EXPENDITURE WAS IN THE NATURE OF SALES PROMOTION EXPENSES INCURRED BY THE ASSESSEE ON WHICH NO TAX W AS TO BE DEDUCTED AT SOURCE. HOWEVER, THE ASSESSING OFFICER NOTED THAT AS PER THE DETAILS FURNISHED BY THE ASSESSEE, THE TOTAL OF THE AMOUNT PAID TO EACH DEALER IN THE YEAR EXCEEDING RS.2500/- WAS RS.46,48,960/-. T HERE WERE TOTAL OF 195 SUCH CASES AND LIST OF THE SAID PERSONS IS ENCL OSED AS ANNEXURE-A OF THE ASSESSMENT ORDER. THE ASSESSEE HAD ENTERED INT O AGREEMENT WITH M/S HUTCHISON ESSAR SOUTH LTD. UNDER WHICH IT WAS NOT C LEAR AS TO WHY IT RECEIVES COMMISSION/BROKERAGE FROM M/S HUTCHISON ES SAR SOUTH LTD. FURTHER THE ASSESSEE HAD NOT BEEN ABLE TO PRODUCE A NY EVIDENCE TO EXPLAIN THE METHOD BY WHICH IT PAYS THE AMOUNT TO T HE DEALER REFLECTED UNDER THE HEAD DEALERS SCHEME & INCENTIVES. THE ASSESSING OFFICER NOTED THAT THERE WERE TWO TRANSACTIONS. THE FIRST WAS IN RESPECT OF THE SALE OF SIM CARDS AND SECOND WAS IN RESPECT OF ACTI VATION OF THE SIM. THE FIRST TRANSACTION OF SALE WAS COMPLETED BY GIVI NG DELIVERY OF THE 8 SIMS TO THE DEALERS, AGAINST WHICH INVOICES WERE IS SUED. HOWEVER, WHERE DEALERS ACTIVATED THE SIM THERE WAS SERVICE P ART ATTACHED TO IT IN THE SHAPE OF CUSTOMERS DOCUMENTATION. THE SAID PA YMENT BY WAY OF SERVICE TO THE CUSTOMERS WAS NOT TARGET BASED OR PE RFORMANCE BASED. THE EXPENDITURE BOOKED UNDER THE DEALERS SCHEME & INC ENTIVES WAS BASED UPON NUMBER OF SIMS ACTIVATED BY THE DEALER IN THE GIVEN PERIOD. THE ISSUE ARISING IN THE PRESENT APPEAL WAS IN RELATION TO THE SAID PAYMENT MADE TO THE DEALERS BY THE ASSESSEE FOR ACTIVATION OF SIMS BEING ON ACCOUNT OF SERVICE RENDERED IN THE COURSE OF SELLIN G THE SIMS. THE SAID PAYMENTS WERE HELD TO BE COMMISSION PAID TO THE DEA LERS WITHIN THE MEANING OF SECTION 194H OF THE ACT. 13. WE FIND THAT THE NATURE OF PAYMENT MADE TO THE DISTRIBUTORS OF SIM CARD/RECHARGE COUPON ON ACTIVATION OF SIMS AROSE BE FORE THE HON'BLE DELHI HIGH COURT IN CIT VS. IDEA CELLULAR LTD. (SUP RA) AND IT WAS HELD THAT THE SAME WAS IN THE NATURE OF COMMISSION AND W AS SUBJECT TO TDS UNDER SECTION 194 OF THE ACT. THE HON'BLE HIGH COU RT OBSERVED AS UNDER: 23. WE, THUS, COME BACK TO THE CENTRAL QUESTION, WHICH IS TO BE ADDRESSED VIZ., THE NATURE OF RELATIONSHIP. REVERTING BACK TO THIS ASPECT, IN THE PRESENT CASE, WE ARE OF THE OPINION THAT THE LEGAL RELATION SHIP IS ESTABLISHED BETWEEN THE ASSESSEE AND THE ULTIMATE CONSUMER/SUBS CRIBER, WHO IS SOLD THE SIM CARD BY THE AGENTS FURTHER APPOINTED BY THE PMA S WITH THE CONSENT OF THE ASSESSEE. IT IS CREATED BY : (A)ACTIVATION OF THE SAID SIM CARD BY THE ASSESSEE IN THE NAME OF THE CONSUMER/SUBSCRIBER. (B)SERVICE PROVIDED BY THE ASSESSEE TO THE SUBSCRIB ER. FURTHER, DEALINGS BETWEEN THE SUBSCRIBERS AND THE ASSESSEE IN RELATIO N TO THE SAID SIM CARD INCLUDING ANY COMPLAINT, ETC. FOR IMPROPER SERVICE/ DEFECT IN SERVICE. (C)ENTERING INTO THE ULTIMATE AGREEMENT BETWEEN THE SUBSCRIBER AND THE ASSESSEE (CLAUSE 15 OF THE AGREEMENT). IT IS TO BE BORNE IN MIND THAT THE NATURE OF SERVIC E PROVIDED BY THE ASSESSEE TO THE ULTIMATE CONSUMERS/SUBSCRIBERS, WHETHER IT I S PRE-PAID OR POST-PAID SIM CARD - REMAINS THE SAME. IN THE INSTANT CASE, T HE SIM CARDS ARE PRE- PAID, WHICH ARE SOLD BY THE ASSESSEE TO THE CONSUME RS THROUGH THE MEDIUM OF PMAS. IN THE CASE OF POST-PAID SIM CARD TRANSACT ION IS ENTERED INTO DIRECTLY BETWEEN THE ASSESSEE AND THE SUBSCRIBER AN D THE SUBSCRIBER IS SENT BILL PERIODICALLY DEPENDING UPON THE USER OF THE SI M CARD FOR THE PERIOD IN 9 QUESTION. IN BOTH THE CASES, LEGAL RELATIONSHIP IS CREATED BETWEEN THE SUBSCRIBER AND THE ASSESSEE THAT TOO BY ENTERING IN TO SPECIFIC AGREEMENT BETWEEN THESE TWO PARTIES. 24. IN CONTRAST, THE LEGAL POSITION WHEN THE GOODS ARE SOLD BY PRINCIPAL TO ITS DISTRIBUTORS CREATING PRINCIPAL AND PRINCIPAL RELATIONSHIP WOULD BE ENTIRELY DIFFERENT. ON THE SALE OF GOODS, THE OWNER SHIP PASSES BETWEEN THE MANUFACTURER AND THE DISTRIBUTORS. IT IS THE RESPON SIBILITY OF THE DISTRIBUTOR THEREAFTER TO SELL THOSE GOODS FURTHER TO THE CONSU MERS - THE ULTIMATE USERS. THE PRINCIPAL/MANUFACTURER DOES NOT COME IN PICTURE AT ALL. OF COURSE, HE MAY BE LIABLE FOR SOME ACTION BY THE CONSUMER BECAU SE OF DEFECTIVE GOODS, ETC., WHICH IS THE RESULT OF OTHER ENACTMENTS CONFE RRING CERTAIN RIGHTS ON THE CONSUMER OR COMMON LAW RIGHTS IN HIS FAVOUR AS AGAI NST THE MANUFACTURER. WE MAY ALSO POINT OUT THAT IN ITS CLASSIC JUDGMENT IN THE CASE OF BHARAT SANCHAR NIGAM LTD. V. UNION OF INDIA AIR 2006 SC 13 83, THE SUPREME COURT HELD THAT ELECTROMAGNETIC WAVES OR RADIO OF F REQUENCIES ARE NOT GOODS AND WITH THE SALE THEREOF SALES TAX ACT IS NO T ATTRACTED, THOUGH THE DECISION WAS RENDERED IN THE CONTEXT OF LIABILITY O F SALES TAX. 25. NO DOUBT, AS PER CLAUSE 6( A) OF THE AGREEMENT, PM A IS SUPPOSED TO MAKE THE PAYMENT IN ADVANCE. THAT WOULD NOT MAKE AN Y DIFFERENCE TO THE NATURE OF TRANSACTION IN VIEW OF CLAUSE 25(D) OF TH E AGREEMENT, WHICH STIPULATES AS UNDER : '25(D) UPON THE TERMINATION OR EXPIRATION OF THIS A GREEMENT FOR ANY REASON, PMA SHALL DISCONTINUE THE MARKETING/DISTRIB UTING/OFFERING FOR SALE, IDEA CHITCHAT PRE-PAID SERVICES, AND SHALL FO RTHWITH RETURN TO ICL THE ENTIRE STOCK OF PRE-PAID SIM CARDS/RECHARGE COU PONS REMAINING WITH HIM AND/OR HIS AUTHORIZED RETAILER. ICL SHALL PAY TO PMA FOR SUCH PRE-PAID SIM CARDS/RECHARGE COUPONS RECEIVED BY IT FROM THE DISTRIBUTOR.' 26. THUS, EVEN IF ADVANCE PAYMENT IS MADE BY THE PMA O N RECEIPT OF THE SIM CARDS, QUA THOSE SIM CARDS, IT DOES NOT AMOUNT TO SALE OF GOODS. THE PURPOSE IS TO ENSURE THAT THE PAYMENT IS RECEIVED IN RESPEC T OF THOSE SIM CARDS, WHICH ARE ULTIMATELY SOLD TO THE SUBSCRIBER INASMUCH AS U NSOLD SIM CARDS ARE TO BE RETURNED TO THE ASSESSEE AND THE ASSESSEE IS REQUIR ED TO MAKE PAYMENT AGAINST THEM. THIS IS AN ANTITHESIS OF SALE. THERE CANNOT BE ANY SUCH OBLIGATION TO RECEIVE BACK THE UNSOLD STOCKS. FURTHER, CLAUSE 25( F) LAYS DOWN THAT ON TERMINATION OF AGREEMENT, PMA OR ITS AUTHORIZED RET AILER APPOINTED BY IT, IS NOT ENTITLED TO ANY COMPENSATION FOR COST OR EXPENSES I NCURRED BY IT IN EITHER SETTING UP OR PROMOTION OF ITS BUSINESS, ETC. NO SU CH CLAUSE WAS REQUIRED IN CASE OF SALE. ------------------------------------------------ ------------------------------------------------ 29. WE THUS ANSWER THE QUESTION, AS FORMULATED, IN FAV OUR OF THE REVENUE AND AGAINST THE ASSESSEE. AS A CONSEQUENCE, THESE APPEA LS ARE ALLOWED AND JUDGMENT OF THE TRIBUNAL ON THIS ASPECT IS SET ASIDE. NO COS TS. 14. THUS THE COURT HELD THAT ON TRUE AND CORRECT AP PRECIATION OF THE RELATIONSHIP BETWEEN THE ASSESSEE AND ITS DISTRIBUT OR, THE TRIBUNAL HAD ERRED IN HOLDING THAT THE PAYMENT MADE BY THE ASSES SEE WAS NOT COMMISSION AS ENVISAGED UNDER SECTION 194H OF THE A CT. 10 15. FURTHER THE HON'BLE KERALA HIGH COURT IN VODAFO NE ESSAR CELLULAR LTD. VS. ACIT (SUPRA) OBSERVED THAT THE SIM CARDS/R ECHARGE COUPONS WERE ONLY FOR THE PURPOSE OF RENDERING SERVICE TO T HE SUBSCRIBER OF THE MOBILE PHONE AND THE DISTRIBUTOR WAS ONLY A MIDDLEM AN ARRANGING CUSTOMERS OR SUBSCRIBERS FOR THE SERVICE PROVIDER A ND PAYMENT MADE ON ACCOUNT OF THEREOF FOR THE SUPPLY OF SIM CARD AND R ECHARGE COUPON WAS IN THE NATURE OF COMMISSION AND DISCOUNT TO DISTRIB UTORS AND EXIGIBLE TO TAX DEDUCTION AT SOURCE UNDER SECTION 194H OF THE A CT. THE HON'BLE HIGH COURT OBSERVED AS UNDER: 4. THE MAIN QUESTION TO BE CONSIDERED IS WHETHER SECT ION 194H IS APPLICABLE FOR THE 'DISCOUNT' GIVEN BY THE ASSESSEE TO THE DISTRIB UTORS IN THE COURSE OF SELLING SIM CARDS AND RECHARGE COUPONS UNDER PRE-PAID SCHEM E AGAINST ADVANCE PAYMENT RECEIVED FROM THE DISTRIBUTORS. WE HAVE TO NECESSARILY EXAMINE THIS CONTENTION WITH REFERENCE TO THE STATUTORY PROVISIO NS NAMELY, SECTION 194H WHICH IS EXTRACTED HEREUNDER FOR EASY REFERENCE : '194H. ANY PERSON, NOT BEING AN INDIVIDUAL OR A HIN DU UNDIVIDED FAMILY, WHO IS RESPONSIBLE FOR PAYING, ON OR AFTER THE 1ST DAY OF JUNE, 2001, TO A RESIDENT, ANY INCOME BY WAY OF COMMISSION (NOT BEIN G INSURANCE COMMISSION REFERRED TO IN SECTION 194D) OR BROKERAGE, SHALL, A T THE TIME OF CREDIT OF SUCH INCOME TO THE ACCOUNT OF THE PAYEE OR AT THE TIME O F PAYMENT OF SUCH INCOME IN CASH OR BY THE ISSUE OF A CHEQUE OR DRAFT OR BY ANY OTHER MODE, WHICHEVER IS EARLIER, DEDUCT INCOME-TAX THEREON AT THE RATE O F TEN PER CENT : ............. EXPLANATION.FOR THE PURPOSES OF THIS SECTION, (I )COMMISSION OR BROKERAGE INCLUDES ANY PAYMENT RECEIVED OR RECEIVABLE, DIRECTLY OR INDIRECTLY, BY A PERSON ACTING ON BEHAL F OF ANOTHER PERSON FOR SERVICES RENDERED (NOT BEING PROFESSIONAL SERVI CES) OR FOR ANY SERVICES IN THE COURSE OF BUYING OR SELLING OF GOOD S OR IN RELATION TO ANY TRANSACTION RELATING TO ANY ASSET, VALUABLE ARTICLE OR THING, NOT BEING SECURITIES; ..........' WHAT IS CLEAR FROM EXPLANATION (I) OF THE DEFINITI ON CLAUSE ABOVE IS THAT COMMISSION OR BROKERAGE INCLUDES ANY PAYMENT RECEIV ED OR RECEIVABLE DIRECTLY OR INDIRECTLY BY A PERSON ACTING ON BEHALF OF ANOTH ER PERSON FOR THE SERVICES RENDERED. WE HAVE ALREADY TAKEN NOTE OF OUR FINDING IN BPL CELLULARS CASE ABOVEREFERRED THAT A CUSTOMER CAN HAVE ACCESS TO MO BILE PHONE SERVICE ONLY BY INSERTING SIM CARD IN HIS HAND SET (MOBILE PHONE) A ND ON ASSESSEE ACTIVATING IT. BESIDES GETTING CONNECTION TO THE MOBILE NETWORK, T HE SIM CARD HAS NO VALUE OR USE FOR THE SUBSCRIBER. IN OTHER WORDS, SIM CARD IS WHAT LINKS THE MOBILE SUBSCRIBER TO THE ASSESSEES NETWORK. THEREFORE, SU PPLY OF SIM CARD, WHETHER IT IS TREATED AS SALE BY THE ASSESSEE OR NOT, IS ONLY FOR THE PURPOSE OF RENDERING CONTINUED SERVICES BY THE ASSESSEE TO THE SUBSCRIBE R OF THE MOBILE PHONE. BESIDES THE PURPOSE OF RETAINING A MOBILE PHONE CON NECTION WITH A SERVICE PROVIDER, THE SUBSCRIBER HAS NO USE OR VALUE FOR TH E SIM CARD PURCHASED BY HIM FROM ASSESSEES DISTRIBUTOR. THE POSITION IS SAME S O FAR AS RECHARGE COUPONS OR E TOPUPS ARE CONCERNED WHICH ARE ONLY AIR TIME CHAR GES COLLECTED FROM THE 11 SUBSCRIBERS IN ADVANCE. WE HAVE TO NECESSARILY HOLD THAT OUR FINDINGS BASED ON THE OBSERVATIONS OF THE SUPREME COURT IN BSNLS CAS E IN THE CONTEXT OF SALES TAX IN THE CASE OF BPL CELLULAR LTD. SQUARELY APPLY TO THE ASSESSEE WHICH IS NOTHING BUT THE SUCCESSOR COMPANY WHICH HAS TAKEN OVER THE BUSINESS OF BPL CELLULAR LTD. IN KERALA. SO MUCH SO, THERE IS NO SALE OF ANY GOODS INVOLVED AS CLAIMED BY THE ASSESSEE AND THE ENTIRE CHARGES COLLECTED BY TH E ASSESSEE AT THE TIME OF DELIVERY OF SIM CARDS OR RECHARGE COUPONS IS ONLY F OR RENDERING SERVICES TO ULTIMATE SUBSCRIBERS AND THE DISTRIBUTOR IS ONLY TH E MIDDLEMAN ARRANGING CUSTOMERS OR SUBSCRIBERS FOR THE ASSESSEE. THE TERM S OF DISTRIBUTION AGREEMENT CLEARLY INDICATE THAT IT IS FOR THE DISTRIBUTOR TO ENROLL THE SUBSCRIBERS WITH PROPER IDENTIFICATION AND DOCUMENTATION WHICH RESPONSIBILI TY IS ENTRUSTED BY THE ASSESSEE ON THE DISTRIBUTORS UNDER THE AGREEMENT. I T IS PERTINENT TO NOTE THAT BESIDES THE DISCOUNT GIVEN AT THE TIME OF SUPPLY OF SIM CARDS AND RECHARGE COUPONS, THE ASSESSEE IS NOT PAYING ANY AMOUNT TO T HE DISTRIBUTORS FOR THE SERVICES RENDERED BY THEM LIKE GETTING THE SUBSCRIB ERS IDENTIFIED, DOING THE DOCUMENTATION WORK AND ENROLLING THEM AS MOBILE SUB SCRIBERS TO THE SERVICE PROVIDER, NAMELY, THE ASSESSEE. EVEN THOUGH THE ASS ESSEE HAS CONTENDED THAT THE RELATIONSHIP BETWEEN THE ASSESSEE AND THE DISTRIBUT ORS IS PRINCIPAL TO PRINCIPAL BASIS, WE ARE UNABLE TO ACCEPT THIS CONTENTION BECA USE THE ROLE OF THE DISTRIBUTORS AS EXPLAINED ABOVE IS THAT OF A MIDDLE MAN BETWEEN THE SERVICE PROVIDER NAMELY, THE ASSESSEE, AND THE CONSUMERS. T HE ESSENCE OF A CONTRACT OF AGENCY IS THE AGENTS AUTHORITY TO COMMIT THE PRINC IPAL. IN THIS CASE THE DISTRIBUTORS ACTUALLY CANVASS BUSINESS FOR THE ASSE SSEE AND ONLY THROUGH DISTRIBUTORS AND RETAILERS APPOINTED BY THEM ASSESS EE GETS SUBSCRIBERS, FOR THE MOBILE SERVICE. ASSESSEE RENDERS SERVICES TO THE SU BSCRIBERS BASED ON CONTRACTS ENTERED INTO BETWEEN DISTRIBUTORS AND SUBSCRIBERS. WE HAVE ALREADY NOTICED THAT THE DISTRIBUTOR IS ONLY RENDERING SERVICES TO THE A SSESSEE AND THE DISTRIBUTOR COMMITS THE ASSESSEE TO THE SUBSCRIBERS TO WHOM ASS ESSEE IS ACCOUNTABLE UNDER THE SERVICE CONTRACT WHICH IS THE SUBSCRIBER CONNEC TION ARRANGED BY THE DISTRIBUTOR FOR THE ASSESSEE. THE TERMINOLOGY USED BY THE ASSESSEE FOR THE PAYMENT TO THE DISTRIBUTORS, IN OUR VIEW, IS IMMATE RIAL AND IN SUBSTANCE THE DISCOUNT GIVEN AT THE TIME OF SALE OF SIM CARDS OR RECHARGE COUPONS BY THE ASSESSEE TO THE DISTRIBUTORS IS A PAYMENT RECEIVED OR RECEIVABLE BY THE DISTRIBUTOR FOR THE SERVICES TO BE RENDERED TO THE ASSESSEE AND SO MUCH SO, IT FALLS WITHIN THE DEFINITION OF COMMISSION OR BROKERAGE UN DER EXPLANATION (I) OF SECTION 194H OF THE ACT. THE TEST TO BE APPLIED TO FIND OUT WHETHER EXPLANATION (I ) OF SECTION 194H IS APPLICABLE OR NOT IS TO SEE WH ETHER ASSESSEE HAS MADE ANY PAYMENT AND IF SO, WHETHER IT IS FOR SERVICES RENDE RED BY THE PAYEE TO THE ASSESSEE. IN THIS CASE THERE CAN BE NO DISPUTE THAT DISCOUNT IS NOTHING BUT A MARGIN GIVEN BY THE ASSESSEE TO THE DISTRIBUTOR AT THE TIME OF DELIVERY OF SIM CARDS OR RECHARGE COUPONS AGAINST ADVANCE PAYMENT M ADE BY THE DISTRIBUTOR. THE DISTRIBUTOR UNDOUBTEDLY CHARGES OVER AND ABOVE WHAT IS PAID TO THE ASSESSEE AND THE ONLY LIMITATION IS THAT THE DISTRIBUTOR CAN NOT CHARGE ANYTHING MORE THAN THE MRP SHOWN IN THE PRODUCT NAMELY, SIM CARD OR RE CHARGE COUPON. DISTRIBUTOR DIRECTLY OR INDIRECTLY GETS CUSTOMERS F OR THE ASSESSEE AND SIM CARDS ARE ONLY USED FOR GIVING CONNECTION TO THE CUSTOMER S PROCURED BY THE DISTRIBUTOR FOR THE ASSESSEE. THE ASSESSEE IS ACCOUNTABLE TO TH E SUBSCRIBERS FOR FAILURE TO RENDER PROMPT SERVICES PURSUANT TO CONNECTIONS GIVE N BY THE DISTRIBUTOR FOR THE ASSESSEE. THEREFORE, THE DISTRIBUTOR ACTS ON BEHALF OF THE ASSESSEE FOR PROCURING AND RETAINING CUSTOMERS AND, THEREFORE, THE DISCOUN T GIVEN IS NOTHING BUT COMMISSION WITHIN THE MEANING OF EXPLANATION (I) ON WHICH TAX IS DEDUCTIBLE UNDER SECTION 194H OF THE ACT. THE CONTENTION OF TH E ASSESSEE THAT DISCOUNT IS NOT PAID BY THE ASSESSEE TO THE DISTRIBUTOR BUT IS REDUCED FROM THE PRICE AND, SO MUCH SO, DEDUCTION UNDER SECTION 194H IS NOT POSSIB LE ALSO DOES NOT APPLY BECAUSE IT WAS THE DUTY OF THE ASSESSEE TO DEDUCT T AX AT SOURCE AT THE TIME OF PASSING ON THE DISCOUNT BENEFIT TO THE DISTRIBUTORS AND THE ASSESSEE COULD HAVE GIVEN DISCOUNT NET OF THE TAX AMOUNT OR GIVEN FULL DISCOUNT AND RECOVERED TAX 12 AMOUNT THEREON FROM THE DISTRIBUTORS TO REMIT THE S AME IN TERMS OF SECTION 194H OF THE ACT. THIS PROPOSITION IS SUPPORTED BY THE DE CISION OF THE SUPREME COURT CITED BY STANDING COUNSEL FOR THE J.B. BODA & CO. ( P.) LTD. V. CBDT [1997] 223 ITR 271 1 WHEREIN THE SUPREME COURT HAS HELD AS FOLLOWS : ' A TWO-WAY TRAFFIC IS UNNECESSARY. TO INSIST ON A FORMAL REMITTANCE FIRST AND THEREAFTER TO RECEIVE THE COMMISSION FROM THE FOREIGN REINSURER, WILL BE AN E MPTY FORMALITY AND A MEANINGLESS RITUAL, ON THE FACTS OF THIS CASE.' STA NDING COUNSEL FOR THE DEPARTMENT REFERRED TO OUR DECISION IN CIT V. DIREC TOR PRASARBHARTI DOORDARSHAN KENDRA [2010] 189 TAXMAN 315 WHEREIN THIS COURT HELD THAT PRASARBHARTI/DOORDARSHAN KENDRA WAS LIABLE TO DEDUC T TAX ON THE COMMISSION RETAINED BY ADVERTISING AGENCIES, NO MATTER, THE CO MMISSION WAS NOT PAID BY DOORDARSHAN BUT WAS ALLOWED TO BE RETAINED BY THE A DVERTISING AGENCIES WHO RECOVERED TOTAL ADVERTISING COST AND REMITTED ONLY NET AMOUNT TO THE PRASARBHARTI. WE, THEREFORE, DO NOT FIND ANY MERIT IN THE CONTENTION OF THE ASSESSEE THAT RECOVERY OF TAX IS NOT PERMISSIBLE AT THE TIME OF GIVING DISCOUNT ON THE DELIVERY OF PRODUCTS TO THE DISTRIBUTORS. 16. WE FIND THAT THE ASSESSEE BEFORE US IS A DEALER OF SIM CARD OF HUTCHISON WHICH IN TURN WAS TAKEN OVER BY VODAFONE. THE FACTS OF THE CASE BEFORE US ARE IDENTICAL TO THE ISSUE RAISED IN THE CASES OF SERVICE PROVIDERS VIS--VIS PAYMENTS MADE TO THE DEALERS IN RELATION TO SALE OF SIM CARD. THE ASSESSEE IS ONE SUCH DISTRIBUTOR OF SIM CARD, WHO IN TURN HAS PAID COMMISSION TO THE DEALER FOR ACTIVATION. THE PAYMENT SO MADE IS IN THE NATURE OF COMMISSION OR BROKERAGE WITHIN THE MEANING OF CLAUSE (I) TO EXPLANATION TO SECTION 194H OF THE ACT ON WH ICH THE ASSESSEE WAS LIABLE TO DEDUCT TAX AT SOURCE. THE ASSESSEE HAVIN G FAILED TO DEDUCT TAX AT SOURCE IS EXIGIBLE TO THE PROVISIONS OF SECTION 409(IA) OF THE ACT UNDER WHICH IT IS PROVIDED THAT ALL SUCH PAYMENTS OUT OF WHICH THE ASSESSEE IS LIABLE TO DEDUCT TAX BUT HAD FAILED TO DO SO, ARE N OT TO BE ALLOWED AS A DEDUCTION, FOR COMPUTING THE INCOME OF THE RELEVANT YEAR. IN THE ENTIRETY OF THE FACTS AND CIRCUMSTANCES OF THE CASE , WE FIND NO MERIT IN THE PLEA OF THE ASSESSEE IN THIS REGARD. RELIANCE PLACED BY THE LEARNED A.R. FOR THE ASSESSEE ON THE RELATIONSHIP OF PRINCI PAL TO PRINCIPAL IS MISPLACED IN VIEW OF THE RATIO LAID DOWN ON IDENTIC AL ISSUE AS IN THE PRESENT APPEAL BY THE HON'BLE DELHI HIGH COURT IN C IT VS. IDEA CELLULAR LTD. (SUPRA), HON'BLE KERALA HIGH COURT IN VODAFONE ESSAR CELLULAR LTD. VS. ACIT (SUPRA) AND HON'BLE CALCUTTA HIGH COURT IN BHARTI CELLULAR 13 LIMITED VS. ACIT (SUPRA). IN VIEW THEREOF, WE REVE RSE THE FINDINGS OF THE CIT (APPEALS) AND DISALLOW THE EXPENDITURE OF R S.46,48,960/- BOOKED UNDER THE HEAD DEALERS SCHEME AND INCENTIVES AS NOT BEING AN ALLOWABLE EXPENDITURE FOR FAILURE TO DEDUCT TAX AT SOURCE IN VIEW OF THE PROVISIONS OF SECTION 40(A)(IA) OF THE ACT. 17. IN THE RESULT, THE APPEAL OF THE REVENUE IS ALL OWED AND CROSS OBJECTION FILED BY THE ASSESSEE IS DISMISSED AS WIT HDRAWN. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 22 ND OF MAY, 2013. SD/- SD/- (T.R.SOOD) (SUSHMA CHOWLA) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED 22 ND MAY , 2013 *RATI* COPY TO: THE APPELLANT/THE RESPONDENT/THE CIT(A)/TH E CIT/THE DR. ASSISTANT REGISTRAR, ITAT, CHANDIGARH