DCIT, Jaipur V. SHIVANI ENCLAVE PVT. LTD., Jaipur

ITA 662/JPR/2013

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 99519 (ITAT-JAIPUR)
• Duration Of Justice: 2 year(s) 4 month(s) 11 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 27-11-2015
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Assessment Year: 2010-2011
• Appeal Filed On: 16-07-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: O P BHATEJA
• Assessee Lawyers: G G MUNDRA
• Keywords: Depreciation; Opportunity of being heard
• Section: 143(3); 32

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHES, JAIPUR JH VH-VKJ-EHUK] YS[KK LNL; ,OA JH YFYR DQEKJ] U;KF; D LNL; DS LE{K BEFORE: SHRI T.R.MEENA, AM & SHRI LALIET KUMAR, JM VK;DJ VIHY LA- @ ITA NO. 662/JP/2013 FU/KZKJ.K O'K Z @ ASSESSMENT YEAR : 2010-11 DEPUTY COMMISSIONER OF INCOME TAX, CIRCLE-2, JAIPUR. CUKE VS. M/S SHIVANI ENCLAVE PVT. LTD., 24, GOYAL HOUSE, AJMER ROAD, JAIPUR. LFKK;H YS[KK LA-@THVKBZVKJ L A-@ PAN/GIR NO.: AADCS 1951 L VIHYKFKHZ @ APPELLANT IZR;FKHZ @ RESPONDENT JKTLO DH VKSJ LS @ REVENUE BY : SHRI O.P. BHATEJA ( ADDL.CIT) FU/KZKFJRH DH VKSJ LS @ ASSESSEE BY : SHRI G.G. MUNDRA (CA) LQUOKBZ DH RKJH[ K@ DATE OF HEARING : 20/11/2015 MN?KKS'K .KK DH RKJH[ K @ DATE OF PRONOUNCEMENT : 27/11/2015 VKNS'K @ ORDER PER: T.R. MEENA, A.M. THIS IS AN APPEAL FILED BY THE REVENUE AGAINST THE ORDER DATED 09/05/2013 PASSED BY THE LEARNED CIT(A)-I, JAIPUR F OR A.Y. 2010-11. THE RESPECTIVE GROUNDS OF APPEAL ARE AS UNDER:- 1 WHETHER ON THE FACTS AND CIRCUMSTANCES OF THE CA SE AND IN LAW, LD CIT(A), WAS JUSTIFIED IN DELETING THE ADDITION OF RS. 32,24,536/- MADE BY THE A.O. ON ITA 662/JP/2013_ DCIT VS. M/S SHIVANI ENCLAVE P LTD. 2 ACCOUNT OF EXCESS DEPRECIATION CLAIMED BY THE ASSESSEE ON WIND MILL PLANT. 2. WHETHER ON THE FACTS AND CIRCUMSTANCES OF THE CA SE AND IN LAW, THE LD CIT(A) WAS JUSTIFIED IN DELETING T HE ADDITION MADE ON ACCOUNT OF CREDIT CARD COMMISSION. 2. THE FIRST GROUND OF THE REVENUE APPEAL IS AGAINST DELETING THE ADDITION OF RS. 32,24,536/- ON ACCOUNT OF EXCESS DE PRECIATION CLAIMED BY THE ASSESSEE ON WIND MILL PLANT. THE ASSESSEE IS RUNN ING HOTELS, RESTAURANTS, BAR AND SHOPPING COMPLEX. IT FILED RET URN OF INCOME ON 18/09/2010 DECLARING TOTAL INCOME OF RS. 1,21,49,42 0/-. THE ASSESSEE HAS INSTALLED WIND MILL AT VILLAGE SAADIYA, DISTRICT JAISALMER, RAJASTHAN OF RS. 3,66,33,382/- IN F.Y. 2007-08 AND DURING THE YE AR UNDER CONSIDERATION THE ASSESSEE HAD INSTALLED WIND MILL A T VILLAGE KOTARA, DISTRICT BARMER, RAJASTHAN AT A COST OF RS. 3,54,50 ,852/-. THE LD ASSESSING OFFICER CALLED THE DETAILS FROM THE ASSES SEE AND VERIFIED THE DEPRECIATION CLAIMED BY IT. THE ASSESSEE HAS CLAIMED DEPRECIATION @ 80% ON RS. 3,54,50,852/-. THE LD ASSESSING OFFICER OBSER VED THAT ANCILLARY ITEMS CONNECTED WITH INSTALLATION OF THE WIND MILL. A S PER ACT, 80% DEPRECIATION IS PROVIDED ON ENERGY SAVING DEVICES A ND DOES NOT INCLUDE ANY OTHER ACCESSORIES & EXPENDITURE CONNECTED WITH T HE SYSTEM. THE ANCILLARY ITEM SHOULD HAVE BEEN PROVIDED DEPRECIATI ON EITHER UNDER THE HEAD BUILDING @ 10% OR AS PLANT AND MACHINERY @ 15%. THE LD ITA 662/JP/2013_ DCIT VS. M/S SHIVANI ENCLAVE P LTD. 3 ASSESSING OFFICER GAVE REASONABLE OPPORTUNITY OF BE ING HEARD, WHICH WAS REPLIED VIDE LETTER DATED 04/02/2013, WHICH HAS BEEN REPRODUCED ON PAGE NO. 3 TO 5 OF THE ASSESSMENT ORDER. AFTER CONSIDERI NG THE ASSESSEES REPLY, THE LD ASSESSING OFFICER REFERRED SECTION 32 OF THE INCOME TAX ACT, 1961 (IN SHORT THE ACT) AS WELL AS SCHEDULE AS PER A PPENDIX 1, RULE 5 OF THE ACT AND HELD THAT ALL THE ASSETS SHOULD BE EITH ER COVERED UNDER FOUR HEADS PROVIDED UNDER THIS APPENDIX, WHICH IS (I) LAN D, (II) BUILDING, (III) PLANT AND MACHINERY & (IV) FURNITURE, FOR WHICH DIFF ERENT RATES OF DEPRECIATION HAVE BEEN PROVIDED BY THE LAW. AS PER A PPENDIX-I, RULE 5 OF THE ACT, THE DEPRECIATION ON WIND MILLS IS AS UNDER: - CLAUSE III: MACHINERY & PLANT (XIII) RENEWAL ENERGY SAVING DEVICES BEING: (I) WIND MILLS AND ANY SPECIALLY DESIGNED DEVICES WHICH RUN ON WIND MILLS. (M) ANY SPECIAL DEVICE INCLUDING ELECTRIC GENERATO RS AND PUMPS RUNNING ON WIND ENERGY. THE CATEGORIZATION MADE IN THE APPENDIX SHOWS THAT TH ERE IS NO INTENTION TO INCLUDE INTERNAL APPROACH ROADS, FOUNDATION WORK AND CRANE PLATFORM FOR WIND MILL, SUPPLY OF ELECTRIC ITEMS LIKE RJS POL ES DISC INSULATOR, CONDUCTOR ETC. IN THE ABOVE BLOCK OF ASSETS. FURTHE R THE EXPENDITURE ON ITA 662/JP/2013_ DCIT VS. M/S SHIVANI ENCLAVE P LTD. 4 ACCOUNT OF LABOUR FOR CIVIL WORK OR ELECTRICAL WORK C ARRIED OUT IN CONNECTION WITH THE INSTALLATION OF WIND MILL ALSO CA NNOT BE INCLUDED IN THE DEFINITION OF WIND MILL BY ANY MEANS BECAUSE TH EY ARE NOT DEVICES IN ANY SENSE ARE MENTIONED IN (XIII)(1) AND (M). THE LD ASSESSING OFFICER RECATEGORIZED THE ASSETS SHOWN BY THE ASSESSEE IN TH E BALANCE SHEET UNDER THE FOLLOWING HEADS: 1] EXPENDITURE INCURRED FOR CIVIL WORK CARRIED OUT AT SITE, CHARGES FOR CREATION OF FOUNDATION/PLATFORM. 2] EXPENDITURE INCURRED ON ACCESSORIES & ELECTRICA L ITEMS TO RENEWABLE ENERGY DEVICE AND THEIR COMPONENTS AND LAB OUR CHARGES FOR INSTALLATION OF ELECTRICAL LIE FOR TRANSMISSION AND METERING. 3] CONSIDERATION IN CONNECTION WITH TRANSFER OF LEA SE LAND. 4] POWER EVACUATION CHARGES. 5] INTEREST ON BANK LOAN. THEREAFTER HE CONSIDERED ALL THE CATEGORIZATION OF A SSETS PARTICULARLY EXPENDITURE INCURRED FOR CIVIL WORK CARRIED OUT AT S ITE, CHARGES FOR CREATION OF FOUNDATION/PLATFORM, EXPENDITURE INCURRED ON ACC ESSORIES & ELECTRICAL ITEMS TO RENEWABLE ENERGY DEVICE AND THEIR COMPONENT S AND LABOUR CHARGES FOR INSTALLATION OF ELECTRICAL LINE FOR TRA NSMISSION AND METERING, LAND LEASE RELATED EXPENDITURE, POWER EVACUATION CHA RGES & INTEREST ITA 662/JP/2013_ DCIT VS. M/S SHIVANI ENCLAVE P LTD. 5 CAPITALIZATION AND RECALCULATED THE DEPRECIATION AS PER ABOVE CATEGORIZATION BY THE ASSESSING OFFICER, WHICH IS A S UNDER:- ITEM AMOUNT INITIALLY INCURRED DURING F.Y. 2007-08 DEPRECIATION ALLOWED IN A.Y. 2009-10 WDV AS ON 01/4/2009 AFTER CONSIDERING ASSESSMENT ORDER U/S 143(3) FOR A.Y. 2009- 10 ALLOWABLE RATE OF DEPRECIATION DEPRECIATION ALLOWED FOR A.Y. 2010-11 (UNDER CONSIDERATION) WIND MILL PLANT 27420696 13161934 3290484 80% 2632387 BUILDING 2661554 252848 2275629 10% 227563 PLANT & MACHINERY 6451132 895095 5072203 15% 760830 LEASE AND HOLD LAND 100000 NIL NIL NIL NIL TOTAL ALLOWABLE DEPRECIATION 3620784 FINALLY HE DISALLOWED DEPRECIATION OF RS. 32,24,536/ - AND THE SAME WAS ADDED IN THE INCOME OF THE ASSESSEE. 3. BEING AGGRIEVED BY THE ORDER OF THE LEARNED ASSE SSING OFFICER, THE ASSESSEE CARRIED THE MATTER BEFORE THE LEARNED CIT( A), WHO HAD ALLOWED THE APPEAL BY OBSERVING AS UNDER:- 4.3 I HAVE CAREFULLY PERUSED THE ORDER OF THE A.O. , AND THE SUBMISSIONS OF THE AR AND THE ORDER OF THE ITAT, JAI PUR BENCH IN THE CASE OF M/S CHIRASH ASSOCIATES PVT. LT D. FOR A.Y. 2005-06, ITA NO. 1632/JP/2008 DATED 26/02/2010 WHEREIN THE APPEAL OF THE DEPARTMENT HAS BEEN DISMIS SED IN FAVOUR OF THE ASSESSEE. THE HONBLE ITAT, HELD THA T THE ASSESSEE WAS ENTITLED TO CLAIM 80% DEPRECIATION ON T OTAL EXPENDITURE INCURRED ON FOUNDATION, ERRECTION, INST ALLATION ITA 662/JP/2013_ DCIT VS. M/S SHIVANI ENCLAVE P LTD. 6 AND OTHER CIVIL WORK ETC. ALONGWITH THE WIND MILL. ON THE BASIS OF THIS ORDER RELIEF WAS GRANTED ON THE SAME F ACTS TO THE APPELLANT FOR A.Y. 2008-09 BY CIT(A)-1, JAIPUR I N ITA NO. 481/10-11 DATED 06/07/2011. THUS, I FIND THAT TH E MATTER IS COVERED SINCE THE A.O. HAS NOT BROUGHT AN Y NEW EVIDENCE, ARGUMENTS OR CASE LAWS TO CONTROVERT THE FINDING OF THE HONBLE ITAT JAIPUR BENCH IN THIS MAT TER. THEREFORE, THE DISALLOWANCE OF DEPRECIATION OF RS. 32,24,536/- IS DELETED. 4. NOW THE REVENUE IS IN APPEAL BEFORE US. THE LD. DR VEHEMENTLY SUPPORTED THE ORDER OF THE LD. ASSESSING OFFICER. A T THE OUTSET, THE LD AR OF THE ASSESSEE HAS SUPPORTED THE ORDER OF THE LD C IT(A) AND FURTHER SUBMITTED THAT THIS ISSUE HAS ALREADY BEEN CONSIDER ED BY THE HONBLE ITAT IN THE CASE OF M/S CHIRASH ASSOCIATES PVT. LTD. (ITA NO. 1632/JP/08) IN A.Y. 2008-09 WHEREIN THE HONBLE BENCH HAS ALLOWE D THE ASSESSEES APPEAL IN FAVOUR OF IT. THE ASSESSEE HAS FURTHER SUB MITTED AS UNDER:- THE ABOVE DISALLOWANCE OF DEPRECIATION ON WDV OF WIND POWER MILL IS SEQUEL OF SIMILAR DISALLOWANCE IN A.Y. 2008- 09 AS STATED ABOVE. THE ASSESSEE COMPANY FILED APPEAL AGAINST THE ASSESSMENT ORDER FOR A.Y. 2008-09 BEFORE CIT(A)-I, J AIPUR. THE CIT(A)-I, JAIPUR VIDE HIS APPEAL ORDER DATED 06/07/2 011 IN APPEAL NO. 481/10-11 DELETED THE DISALLOWANCE OF DEP RECIATION AND DIRECTED THE A.O. TO TREAT THE ENTIRE COST OF R S. ITA 662/JP/2013_ DCIT VS. M/S SHIVANI ENCLAVE P LTD. 7 3,66,33,382/- AS COST OF WIND MILL AND TO ALLOW DEPRE CIATION @ 80% (FOR YEAR) WHICH HAS BEEN CONFIRMED BY THIS HO NBLE BENCH VIDE ORDER DATED 25/7/2014 IN ITA NO. 840/JP/ 2011. AS THE LD A.O. ADOPTING THE BASIS OF ASSESSMENT ORDER FOR A.Y. 2008-09 FOR MAKING SIMILAR DISALLOWANCE OF DEPRECIAT ION ON WDV B/F FROM A.Y. 2008-09 THE LD CIT(A) HAS RIGHTLY DELETED THE DISALLOWANCES AND THE ISSUE IS COVERED IN FAVOUR OF ASSESSEE FROM THE APPEAL ORDER FOR A.Y. 2008-09 OF CIT(A) DULY CONFIRMED BY THE HONBLE BENCH IN APPEAL FILED BY D EPARTMENT. THE GROUND OF APPEAL RAISED BY DEPARTMENT DESERVES T O BE DISMISSED. 5. WE HAVE HEARD THE RIVAL CONTENTIONS OF BOTH THE PARTIES AND PERUSED THE MATERIAL AVAILABLE ON THE RECORD. THIS B ENCH HAS ALREADY CONSIDERED THE ASSESSEES OWN CASE IN ITA NO. 840/J P/2011 FOR A.Y. 2008-09 ON IDENTICAL FACTS. THE OPERATIVE PORTION OF THE ORDER IS REPRODUCED AS UNDER:- 6. WE HAVE HEARD THE RIVAL CONTENTIONS OF BOTH THE PARTIES AND PERUSED THE MATERIAL ON RECORD. THE VARIOUS HIGH CO URTS AS WELL AS COORDINATE BENCH OF ITAT, JAIPUR IN CASE OF DCIT VS. VIPPY SOLVEX PRODUCTS LTD. AND DCIT VS. M/S CHIRAG ASSOCI ATES (P) LTD. RESPECTIVELY, HELD THAT FOUNDATION OF PLATFORM, ERE CTION, INSTALLATION OF PLANT AND MACHINERY, PREPARATION OF CRANE PLATFORM FOR WIND MILL AND OTHER CIVIL WORK CARRIED OUT FOR INSTALLATION ARE INTERNAL PART OF WIND MILL, WHICH HAVE NOT INDEPEND ENT USE. THUS, WE ARE OF THE CONSIDERED VIEW THAT THE ASSESSEE IS ENTITLED FOR 80% OF DEPRECIATION ON COMPOSITE WIND MILL PROJECT INCLUDING ITA 662/JP/2013_ DCIT VS. M/S SHIVANI ENCLAVE P LTD. 8 OTHER EXPENDITURE FOR PUT TO USE FOR WIND MILL. THU S, WE CONFIRM THE ORDER OF LEARNED CIT(A). 6. THE SECOND GROUND OF REVENUES APPEAL IS AGAINST DISALLOWANCE U/S 40(A)(IA) OF THE ACT IN RESPECT OF CREDIT CARD COMM ISSION. THE LD ASSESSING OFFICER OBSERVED THAT THE ASSESSEE HAD DE BITED CREDIT CARD COMMISSION OF RS. 8,98,348/-. THE ASSESSEE HAS NOT D EDUCTED TDS ON PAYMENT OF CREDIT CARD SERVICE CHARGES. EACH CHARGE S APPEARED TO BE COMMISSION IN RESPECT OF CREDIT CARD. SECTION 40(A) (IA) OF THE ACT IS SQUARELY APPLICABLE ON IT. THE ASSESSEE WAS GIVEN RE ASONABLE OPPORTUNITY OF BEING HEARD. THE ASSESSEES REPLY WAS REPRODUCED B Y THE ASSESSING OFFICER ON PAGE 13 TO 14 OF THE ASSESSMENT ORDER. A FTER CONSIDERING THE ASSESSEES REPLY, THE LD ASSESSING OFFICER HELD THA T ACTUALLY CREDIT CARD COMMISSION PAYMENT IS SERVICES CHARGES. THE LD ASSES SING OFFICER ALSO ANALYSED THE CREDIT CARE FACILITY SERVICES ON PAGE 17 TO 19 OF THE ASSESSMENT ORDER AND FINALLY HELD THAT SERVICE CHAR GES/CREDIT CARD COMMISSION IS NOTHING BUT COMMISSION IS DEFINED IN SECTION 194H, WHICH HAS ALSO REPRODUCED BY THE ASSESSING OFFICER ON PAG E 20 AND 21 OF THE ASSESSMENT ORDER. ACCORDINGLY, THE ASSESSEE IS LIAB LE TO DEDUCT TDS U/S 194H OF THE ACT. HE FURTHER REFERRED CBDT CIRCULAR N O. 619 ON TDS DATED 04/12/1991 ON PAGE NO. 22 OF THE ASSESSMENT ORDER. HE FURTHER RELIED ON ITA 662/JP/2013_ DCIT VS. M/S SHIVANI ENCLAVE P LTD. 9 THE DECISION IN THE CASE OF CIT VS. SINGAPORE AIRLIN ES LTD. & OTHER AIRLINES, 213 TAXMAN 441, AHMADABAD TRIBUNAL ORDER IN THE CASE OF CANARA BANK VS. ITO 305 ITR (AT) 189, MUMBAI ITATS DE CISION IN THE CASE OF ULTRA ENTERTAINMENT SOLUTIONS LTD. VS. ITO 17 SOT 249. ACCORDINGLY, HE DISALLOWED THE COMMISSION PAYMENT RE LATED TO THESE BANKS AT RS. 6,01,280/- IN RESPECT OF CITI BANK & U TI/AXIS BANK LTD. 7. BEING AGGRIEVED BY THE ORDER OF THE ASSESSING OF FICER, THE ASSESSEE CARRIED THE MATTER BEFORE THE LD CIT(A), WHO HAD ALL OWED THE APPEAL BY OBSERVING AS UNDER:- 5.3. I HAVE CAREFULLY PERUSED THE ORDER OF THE A.O . AND THE SUBMISSIONS OF THE AR ALONGWITH THE ORDER OF THE HON BLE ITAT, JAIPUR BENCH IN THE CASE OF M/S GEMS PARADISE FOR A.Y. 2008-09, ITA NO. 746/JP/2011 PASSED ON 02/02/2 012 WHEREIN THE SAME ISSUE WAS DISCUSSED. THE HONBLE ITAT JAIPUR BENCH HELD THAT SECTION 194H WAS APPLICABLE WH ERE ANY COMMISSION WAS PAID BY THE PRINCIPAL TO THE COMMISSION AGENT AND IN THIS CASE THE BANK WAS NOT T HE COMMISSION AGENT. IT WAS HELD THAT THERE WAS NO RELAT ION BETWEEN THE BANK AND SHOP KEEPER WHICH ESTABLISHED TH E RELATIONSHIP OF A PRINCIPAL AND COMMISSION AGENT. S INCE THE PROVISIONS OF SECTION 194H WERE NOT ATTRACTED ON THE SE PAYMENTS THERE WAS NO QUESTION OF DISALLOWANCE U/S ITA 662/JP/2013_ DCIT VS. M/S SHIVANI ENCLAVE P LTD. 10 40(A)(IA). AS THE MATTER IS COVERED BY THE FINDING OF THE HONBLE ITAT BENCH VIDE ORDER SUPRA THE DISALLOWANCE OF RS. 6,01,280/- ON THE SAME FACTS U/S 40(A)(IA) IS D ELETED. 8. NOW THE REVENUE IS IN APPEAL BEFORE US. THE LD DR VEHEMENTLY SUPPORTED THE ORDER OF THE ASSESSING OFFICER. AT TH E OUTSET, THE LD AR OF THE ASSESSEE HAS SUBMITTED AS UNDER:- THE ABOVE ISSUE HAS ALSO BEEN DECIDED IN FAVOUR OF A SSESSEE BY THE HONBLE BENCH IN CASE OF ASSESSEE COMPANY FOR A .Y. 2008-09 VIDE ORDER DATED 25/07/2014 (C.O. NO. 26/JP/12 ARIS ING OUT OF ITA NO. 840/JP/2011) WHILE DECIDING CROSS OBJECTIONS FILED BY ASSESSEE. THUS THE ISSUE IS COVERED IN FAVOUR OF AS SESSEE FROM SAID APPEAL ORDER. THE LD CIT(A) HAS DECIDED THE APPE AL BY FOLLOWING ITAT, JAIPUR BENCH JUDGMENT IN CASE OF GEM PARADISE VS. ACIT (ITA NO. 746/JP/2011 DECIDED ON 02/02/2012) IN WHICH IT WAS HELD THAT ASSESSEE SOLD ITS GOODS THROUGH CRE DIT CARD AND ON PRESENTATION OF BILL ISSUED AGAINST CREDIT CARD THE BANK MAKES PAYMENT TO ASSESSEE AFTER DEDUCTING AGREED FEES AS PER TERMS AND CONDITIONS IN CASE OF CREDIT CARD. THIS IS NOT A COMMISSION PAYMENT BUT A FEES DEDUCTED BY THE BANK. THERE IS NO SUCH RELATION BETWEEN THE BANK AND THE SHOP KEEPER WHICH E STABLISHES THE RELATIONSHIP OF A PRINCIPAL AND COMMISSION AGEN T. THEREFORE, PROVISION OF SECTION 194H ARE NOT ATTRACTED IN THIS TYPE OF TRANSACTION AND NO TDS IS TO BE DEDUCTED THEREFROM. THE ISSUE THUS IS COVERED IN FAVOUR OF ASSESSEE FROM THE SAID JUDGMENT OF ITA 662/JP/2013_ DCIT VS. M/S SHIVANI ENCLAVE P LTD. 11 ITAT, JAIPUR BENCH AS WELL AS FROM APPEAL ORDER OF IT AT IN CASE OF ASSESSEE FOR A.Y. 2008-09. THE JUDGMENTS OF OTHE R BENCHES OF ITAT ALSO SUPPORTS THIS LEGAL POSITION WHICH ARE (I) TATA TELE SERVICES VS. DCIT 140 ITD 451 (BANG.) (II) DCIT VS VAH MAGNA RETAIL P LTD. ITA NO. 905/HYD 2011 (HYD). (III) ACIT VS JET AIRWAYS LTD. (2014) 146 ITD 682 (BO M) (IV) MARUDHAR HOTELS P LTD. VS. JCIT (2013) 156 TTJ 7 29 (JOD). 9. WE HAVE HEARD THE RIVAL CONTENTIONS OF BOTH THE PARTIES AND PERUSED THE MATERIAL AVAILABLE ON THE RECORD. THIS I SSUE HAS BEEN CONSIDERED BY THE COORDINATE BENCH IN GEM PARADISE VS. ACIT IN ITA NO. 746/JP/2011 IN WHICH IT HAS BEEN HELD THAT THE ASSES SEE SOLD ITS GOODS THROUGH CREDIT CARD AND ON PRESENTATION OF BILL ISS UED AGAINST CREDIT CARD, THE BANK MAKES PAYMENT TO THE ASSESSEE AFTER DEDUCT ING AGREED FEES AS PER TERMS AND CONDITIONS IN CASE OF CREDIT CARD. THI S IS NOT A COMMISSION PAYMENT BUT A FEES DEDUCTED BY THE BANK. THERE IS NO SUCH RELATION BETWEEN THE BANK AND THE SHOP KEEPER, WHICH ESTABLISH ES THE RELATIONSHIP OF A PRINCIPAL AND COMMISSION AGENT. TH EREFORE, TDS IS NOT LIABLE TO BE DEDUCTED ON PAYMENT MADE ON THE BASIS OF CREDIT CARD. THE ITA 662/JP/2013_ DCIT VS. M/S SHIVANI ENCLAVE P LTD. 12 OTHER CASE LAWS REFERRED BY THE ASSESSEE IS ALSO SQU ARELY APPLICABLE. ACCORDINGLY, WE UPHOLD THE ORDER OF THE LD CIT(A). 10. IN THE RESULT, THE REVENUES APPEAL IS DISMISSE D. ORDER PRONOUNCED IN THE OPEN COURT ON 27/11/2015. SD/- SD/- YFYR DQEKJ VH-VKJ-EHUK (LALIET KUMAR) (T.R. MEENA) U;KF;D LNL;@ JUDICIAL MEMBER YS[KK LNL;@ ACCOUNTANT MEMBER TK;IQJ @ JAIPUR FNUKAD @ DATED:- 27 TH NOVEMBER, 2015 *RANJAN VKNS'K DH IZFRFYFI VXZSFKR @ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ @ THE APPELLANT- THE DCIT, CIRCLE-2, JAIPUR. 2. IZR;FKHZ @ THE RESPONDENT- M/S SHIVANI ENCLAVE PVT. LTD., JAIPU R. 3. VK;DJ VK;QDR @ CIT 4. VK;DJ VK;QDRVIHY @ THE CIT(A) 5. FOHKKXH; IZFRFUF/K] VK;DJ VIHYH; VF/KDJ.K] T;IQJ @ DR, ITAT, JAIPUR 6. XKMZ QKBZY @ GUARD FILE (ITA NO. 662/JP/2013) VKNS'KKUQLKJ @ BY ORDER, LGK;D IATHDKJ @ ASST. REGISTRAR