ITO, Dharamashala V. M/s Asia Health Resorts, Kangra

ITA 87/CHANDI/2013

• Counselvise Citation: [2013] 140 COUNSELVISE.COM (IT) 68374 (ITAT-CHANDIGARH)
• Duration Of Justice: 5 month(s) 28 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 02-08-2013
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Next Hearing Date: 09-07-2013
• Assessment Year: 2009-2010
• Appeal Filed On: 04-02-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: J S NAGAR
• Keywords: Additional evidence; Non-deduction of tax
• Section: 80IB

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL CHANDIGARH BENCHES A CHANDIGARH BEFORE SHRI T.R. SOOD, ACCOUNTANT MEMBER AND MS. SUSHMA CHOWLA, JUDICIAL MEMBER ITA NO. 182/CHD/2013 ASSESSMENT YEAR: 2009-10 M/S ASIA HEALTH RESORTS VS. THE ITO STRAWBERRY HILLS, DHARAMSHALA DHARAMSHALA, H.P H.P PAN NO. AAIFA5196K & ITA NO. 87/CHD/2013 ASSESSMENT YEAR: 2009-10 THE ITO VS. M/S. ASIA HEALTH RESORTS DHARAMSHALA, STRAWBERRY HILLS, DHARAMSHALA H.P H.P (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI SURINDER BABBAR RESPONDENT BY : SHRI J.S. NAGAR DATE OF HEARING : 09/07/2013 DATE OF PRONOUNCEMENT : 02/08/2013 ORDER PER T.R. SOOD A.M. THE APPEAL FILED BY THE ASSESSEE AND CROSS APPEAL F ILED BY THE REVENUE ARE DIRECTED AGAINST THE ORDER OF CIT(A), S HIMLA DATED 23/11/2012. 2. IN ASSESSEES APPEAL I.E ITA NO. 182/CHD/2013, F OLLOWING GROUNDS HAVE BEEN RAISED:- 2 1. THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE, LD. COMMISSIONER OF INCOME-TAX (APPEALS), SHIMLA, HAS GROSSLY ERRED IN CONCURRING WITH THE LD. A.O. FOR DISALLOWANCE OF CAR HIRE CHARGES EXPENSES INCURRED AT RS. 4,65,000/- FOR NON-DEDUCTION OF INCOME-TAX A T SOURCE. 2. THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE, LD. COMMISSIONER OF INCOME-TAX (APPEALS), SHIMLA, HAS GROSSLY ERRED IN NOT ALLOWING DEDUCTION UNDER SECTI ON 80IC ON THE ADJUSTED INCOME ARRIVED AT AFTER THE DISALLOWANCE OF CAR HIRE CHARGES EXPENSES INCURRED AT RS. 4,65,000/- FOR NON-DEDUCTION OF INCOME-TAX A T SOURCE . 3. IN RESPECT OF GROUND NO.1, THE ASSESSEE HAS MOV ED AN APPLICATION FOR ADMISSION OF SOME ADDITIONAL EVIDENCE WHICH CO ULD NOT BE FILED BECAUSE OF THE DEATH OF THE COUNSEL APPEARING DURIN G THE ASSESSMENT PROCEEDINGS. HOWEVER, HE SUBMITTED THAT ISSUE IN G ROUND NO.1 IS RELATED TO GROUND NO.2 AND IF THE SAME IS ADJUDICATED THEN THERE SHOULD BE NO NEED TO ADJUDICATE GROUND NO.1. 4. DURING ASSESSMENT PROCEEDINGS, IT IS NOTICED THA T ASSESSEE HAS DEBITED CAR HIRE CHARGES AMOUNTING TO RS. 4,65,000/ - AGAINST WHICH NO TAX WAS DEDUCTED. IT WAS CONTENDED THAT CAR HIRE CHARG ES ARE NOT COVERED UNDER SECTION 194C. HOWEVER, THIS WAS NOT AGREED A ND DISALLOWANCE WAS MADE FOR NON DEDUCTION OF TAX. THIS DISALLOWANCE H AS BEEN CONFIRMED BY LD. CIT(A). THE ASSESSEE IN THE ALTERNATIVE HAD C ONTENDED THAT IF THIS DISALLOWANCE HAS BEEN MADE THEN DEDUCTION U/S 80IC SHOULD BE ALLOWED ON ENHANCED INCOME BUT THIS CONTENTION HAS BEEN REJECT ED BY THE LOWER AUTHORITIES. 3 5. BEFORE US, LD. COUNSEL FOR THE ASSESSEE SUBMITTE D THAT IF INCOME IS ENHANCED BECAUSE OF SOME TECHNICAL REASON, THEN DED UCTION U/S 80IC SHOULD HAVE BEEN ALLOWED IN ANY CASE BECAUSE SUCH I NCOME HAS BEEN DERIVED FROM THE ACTIVITY OF RUNNING OF THE HOTEL. IN THIS REGARD, HE RELIED ON THE DECISION OF THE HON'BLE BOMBAY HIGH COURT I N THE CASE OF CIT V GEM PLUS JEWELLERY INDIA LTD 330 ITR 175 (BOM), CI T VS ALLIED INDUSTRIES 31 DTR 323 AND VISHAL PAPER INDUSTRIES V S JOINT CIT IN IT APPEALS NOS. 267 & 348 (CHANDI) OF 2011 RELATING TO ASSESSMENT YEAR 2007-08. 6. ON THE OTHER HAND, THE LD. DR STRONGLY SUPPORTED THE ORDER OF CIT(A). 7. AFTER CONSIDERING THE RIVAL SUBMISSIONS, WE FIND THAT IN CASE OF CIT VS GEM & JEWELLERY INDIA LTD. (SUPRA), HON'BLE BOM BAY HIGH COURT HAS HELD AS UNDER:- (IV) THAT IT WAS AN ADMITTED POSITION THAT THE AS SESSEE HAD DEPOSITED BOTH THE EMPLOYERS AND THE EMPLOYEES CONTRIBUTION TOWARDS PROVIDENT FUND AND ESIC THOUGH BEYOND THE DUE DATE INCLUDING THE GRACE PERIOD. THE ASSESSING OFFICER ADDED THESE PAYMENTS TO THE TOTAL INCOME OF THE ASSESSEE. THE DISALLOWANCE WHICH WAS EFFECTE D BY THE ASSESSING OFFICER HAD NOT BEEN CHALLENGED BY THE AS SESSEE. THE PLAIN CONSEQUENCE OF THE DISALLOWANCE AND THE A DD BACK THAT HAD BEEN MADE BY THE ASSESSING OFFICER WA S AN INCREASE IN THE BUSINESS PROFITS OF THE ASSESSEE. T HE CONTENTION OF THE REVENUE THAT IN COMPUTING THE DED UCTION UNDER SECTION 10A THE ADDITION MADE ON ACCOUNT OF T HE 4 DISALLOWANCE OF THE PROVIDENT FUND/ESIC PAYMENTS OU GHT TO BE IGNORED COULD NOT BE ACCEPTED. NO STATUTORY PROV ISION TO THAT EFFECT HAVING BEEN MADE, THE PLAIN CONSEQUENCE OF THE DISALLOWANCE MADE BY THE ASSESSING OFFICER MUST FOL LOW. THE TRIBUNAL WAS JUSTIFIED IN DIRECTING THE ASSESSI NG OFFICER TO GRANT THE EXEMPTION UNDER SECTION 10A OF THE ACT ON THE ASSESSED INCOME, WHICH WAS ENHANCED DUE TO DISALLOWANCE OF THE EMPLOYERS AS WELL AS EMPLOYEES CONTRIBUTION TOWARDS PF/ESIC 8. THE ABOVE CLEARLY SHOWS THAT IF INCOME HAS BEEN DERIVED FROM THE ELIGIBLE UNIT AND THE PROFITS HAVE BEEN ENHANCED ON SOME TECHNICAL GROUNDS, THEN ELIGIBLE DEDUCTION HAS TO BE ALLOWED. A SIMILAR VIEW HAS BEEN TAKEN BY THE HON'BLE HIMACHAL PRADESH HIGH COU RT IN THE CASE OF CIT VS ALLIED INDUSTRIES (SUPRA) . THE CHANDIGARH B ENCH OF THE TRIBUNAL IN THE CASE OF VISHAL PAPER INDUSTRIES VS JCIT (SU PRA) HAS OBSERVED IN THIS RESPECT AT PARA 19 AS UNDER:- 19. WE HAVE CAREFULLY PERUSED THE RIVAL SUBMISSIO NS AND RELEVANT RECORD. THE ASSESSEE HAS PLACED RELIANCE O N THE DECISION, IN THE CASE OF ALLIED INDUSTRIES REPORTED IN 31 DTR 321. THE CONTENTION RAISED BY THE APPELLANT FIN D SUPPORT FROM THE RATIO OF THE DECISION RELIED UPON BY THE ASSESSEE. IN THIS CASE, IT WAS HELD THAT ADDITION W AS MADE TO THE INCOME OF THE ASSESSEE AND HAD BEEN ASSESSED UNDER THE HEAD OF PROFITS AND GAINS OF BUSINESS. SINCE, T HE ENTIRE PROFITS OF THE BUSINESS ARE ENTITLED FOR 100% DEDUC TION, THE ADDITION ON ACCOUNT OF SUCH DISCREPANCY WILL ONLY R ESULT IN THE ENHANCEMENT OF INCOME OF THE BUSINESS AND WOULD BE ENTITLE FOR SUCH DEDUCTION. IN THE PRESENT CASE, TH E ASSESSEE IS ELIGIBLE FOR DEDUCTION U/S 80IB OF THE ACT. THER EFORE, ANY 5 ADDITION TO THE INCOME OF THE PRESENT APPELLANT WOU LD ENTITLE HIM ENHANCED DEDUCTION. BOTH THE AO AND THE LD. CIT(A) MISCONCEIVED THE ISSUE IN QUESTION. IN VIEW OF THIS THE FINDINGS OF THE LD. CIT(A) CANNOT BE HELD. THIS GROUND OF APPEAL OF THE APPELLANT IS ALLOWED. IN THE CASE BEFORE US, ADMITTEDLY, THE INCOME HAS BEEN EARNED FROM THE ELIGIBLE BUSINESS OF RUNNING A HOTEL. THE DISA LLOWANCE HAS BEEN MADE ON ACCOUNT OF HIRE CHARGES FOR TECHNICAL REASONS I. E. NON-DEDUCTION OF TAX AT SOURCE. THEREFORE, IN OUR OPINION, DEDUCTION U/ S 80-IC OF THE ACT IS ALLOWABLE ON ENHANCED PROFITS. ACCORDINGLY, WE SET ASIDE THE ORDER OF LD. CIT(A) AND DIRECT THE ASSESSING OFFICER TO ALLOW DE DUCTION ON ENHANCED PROFITS. RESULTANTLY, ASSESSEES APPEAL IS ALLOWE D. ITA NO. 87/CHD/2013 REVENUES APPEAL : 9. IN THIS APPEAL, THE REVENUE HAS RAISED THE FOLLO WING GROUNDS:- 1. ON THE FACTS AND IN THE CIRCUMSTANCES, THE LD. CIT(A) HAS ERRED IN DELETING THE ADDITION OF RS. 44,10,717/- U/S 80IC OF THE ACT. 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LD.CIT(A) HAS ERRED IN DELETING THE ADDIT ION OF RS. 1,19,647/- CLAIMED BY THE ASSESSEE IN CONTRAVENTION OF PROVISION OF SECTION 194 H 3. IT IS PRAYED THAT THE ORDER OF THE LD. CIT(A) BE SET-ASIDE AND THAT OF THE A.O. RESORTED. 10. GROUND NO.1, THE FACTS RELATING TO THE ISSUE A RE THAT ASSESSEE IS RUNNING A HOTEL IN DISTRICT DHARMSHALA. THE DEDUCT ION U/S 80IC WAS DENIED BY THE ASSESSING OFFICER BECAUSE ACCORDING T O HIM RUNNING OF HOTEL CANNOT BE TERMED AS AN ACTIVITY OF ECO-TOURISM. 6 11. ON APPEAL, RELIANCE WAS PLACED IN THE CASE OF ACIT VS RAGHUNATH SINGH THAKUR IN ITA NOS. 152 & 469/CHD/2010 & 1144/ CHD/2010 WHEREIN UNDER SIMILAR CIRCUMSTANCES THE DEDUCTION WAS HELD TO BE ALLOWABLE BY THE TRIBUNAL. THE LD. CIT(A) FOLLOWING THE ORDER OF THE TRIBUNAL ALLOWED THE DEDUCTION. 12 BEFORE US, LD. DR STRONGLY SUPPORTED THE ORDER O F THE ASSESSING OFFICER. 13. ON THE OTHER HAND LD. COUNSEL OF THE ASSESSEE S TRONGLY SUPPORTED THE IMPUGNED ORDER. 14. AFTER CONSIDERING THE RIVAL SUBMISSIONS, WE FIN D THAT THIS ISSUE HAS BEEN DECIDED BY LD. CIT(A) VIDE PARA 4, WHICH IS AS UNDER:- 4. THE ISSUE REGARDING THE ADMISSIBILITY OF DEDUCT ION U/S 80IC OF THE ACT IN THE CASE OF STAND-ALONE HOTELS S TANDS DECIDED BY MY ORDER DATED 04.11.2011 IN APPEAL NO. IT/238/2010-11/SML IN THE CASE OF SH. RAGHUNATH SIN GH THAKUR, HOTEL MARINA, THE MALL, SHIMLA FOR THE A.Y. 2008- 09. THE VIEWS HELD BY ME ON THE GIVEN SUBJECT ARE D ISCUSSED AT LENGTH IN THE SAID ORDER. THE HOTEL BEING RUN BY THE APPELLANT IS ALSO A STAND-ALONE NORMAL HOTEL, AND N OT A PART OF ANY ECO-TOURISM PROJECT. HOWEVER, THE HONBLE IT AT CHANDIGARH BENCH B IN THE CASE OF SH. RAGHUNATH S INGH THAKUR VIDE THEIR OR ORDER DATED 22 ND JUNE, 2012 HAS ALLOWED THE DEDUCTION U/S 80IC OF THE ACT ON THE GR OUND THAT THE TERM HOTEL IS INCLUDED IN THE WORD ECO- TOURISM UNDER ITEM 15 IN PART-C OF THE XIV SCHEDULE TO THE INCOME 7 TAX ACT, AND THAT THE SPECIAL PROVISIONS ARE PROVID ED BY THE STATUTE FOR THE PROMOTION OF TOURISM IN THE STATE O F HIMACHAL PRADESH. WITH A VIEW TO MAINTAINING THE JU DICIAL CONSISTENCY, THE GROUND OF APPEAL TAKEN BY THE ASSE SSEE IS ALLOWED IN DEFERENCE TO THE ORDER OF THE HONBLE IT AT, CHANDIGARH. 15. WE FURTHER FIND THAT THIS ASPECT OF THE ISSUE H AS BEEN DISCUSSED IN DETAIL BY THE TRIBUNAL IN ITA NOS. 152 & 469/CHD/2 010 & 1144/CHD/2010 IN THE CASE OF SHRI RAGHUNATH SINGH THAKUR (SUPRA) . THE ISSUE REGARDING THE ECO-TOURISM HAS BEEN DISCUSSED IN PARA 20, WHIC H READS AS UNDER:- 20. UNDER THE FOURTEENTH SCHEDULE TO THE INCOME T AX ACT, LIST OF ARTICLES OR THINGS OR OPERATIONS ELIGIBLE FOR DEDUC TION UNDER SECTION 80IC OF THE ACT ARE ENLISTED. PART-C IS IN RELATION TO THE STATE OF HIMACHAL PRADESH AND STATE OF UTTRANCHAL. ITEM NO. 15 IN PART-C OF THE FOURTEENTH SCHEDULE READS AS UNDER: 'ECO-TOURISM INCLUDING HOTELS, RESORTS, SPA, ENTERT AINMENT/AMUSEMENT PARKS AND ROPEWAYS'. 21. THE ABOVE SAID DEFINITION AND THE OPERATION TO BE CARRIED OUT IN THE FIELD OF ECO-TOURISM ARE EXCLUSIVELY DEFINED BY THE ACT TO INCLUDE THE PROVISIONS OF INFRASTRUCTURE I.E. HOTELS, RESORTS, SPA, ENTERTAINMENT/AMUSEMENT PARKS AND ROPE WAYS . IN VI EW OF THE POLICY OF GOVERNMENT OF INDIA, IT TRANSPIRES THAT INCENTIVES ARE PROVIDED TO THE UNDERTAKING OR ENTERPRISES FOR SETTING UP INFRASTRU CTURE IN THE STATE OF HIMACHAL PRADESH OR STATE OF UTTRANCHAL IN ORDER TO PROMOTE ECO- TOURISM WHICH IN TURN INCLUDES SETTING UP OF HOTELS , RESORTS, SPA, ENTERTAINMENT/AMUSEMENT PARKS AND ROPEWAYS IN SUPPO RT OF THE POLICY OF ENCOURAGING TOURISM IN THE STATE. IT IS AN ESTAB LISHED PRINCIPLE THAT 8 THE PROVISIONS OF INCENTIVE OR GROWTH AND DEVELOPME NT OF THE STATE SHOULD BE INTERPRETED LIBERALLY, IN ORDER TO ACHIEV E THE OBJECT OF ALLOWING DEDUCTION TO THE UNDERTAKING OR ENTERPRISE S, WHICH ESTABLISHES ITS INFRASTRUCTURE IN THE RESPECTIVE STATES FOR FUR THERANCE OF THE OBJECT OF THE POLICY FRAMED THEREUNDER. IT IS EVIDENT THAT TH E STATUTE HAS PROVIDED DEDUCTION BY WAY OF SECTION 80IC OF THE ACT TO SUCH UNDERTAKINGS OR ENTERPRISES WHICH COMMENCES ANY OPERATION SPECIFIED IN THE FOURTEENTH SCHEDULE AND UNDERTAKES SUBSTANTIAL EXPANSION DURIN G THE PRESCRIBED PERIOD WITHIN THE STATE, WOULD BE ENTITLED TO THE B ENEFIT BY WAY OF DEDUCTION FROM THE PROFITS AND GAINS OF THE BUSINES S, WHICH IN THE CASE OF PRESENT ASSESSEE I.E. RELATING TO SECTION 8OIC ( 2)(B) OF THE ACT WOULD BE 100% OF SUCH PROFITS AND GAINS FOR FIVE ASSESSME NT YEARS COMMENCING WITH THE INITIAL ASSESSMENT YEAR AND 25% OF THE PROFITS AND GAINS OF THE BUSINESS FOR THE NEXT FIVE ASSESSMENT YEARS. THE DEFINITION OF ECO-TOURISM UNDER THE FOURTEENTH SCHEDULE IS INC LUSIVE DEFINITION AND INCLUDES WITHIN ITS DEFINITION THE PROVISIONS BY WA Y OF HOTELS, RESORTS, SPA, ENTERTAINMENT / AMUSEMENT PARTS AND ROPEWAYS. HOWEVER, THE STATE OF HIMACHAL PRADESH HAS FURTHER RELIED DOWN B ROAD PARAMETERS FOR THE GRANT OF STATUS ECO-TOURISM TO AN UNDERTAKI NG OR ENTERPRISES WHICH IN TURN HAS TO OBTAIN NO OBJECTION CERTIFICA TE UNDER THE NORMS SET UP BY THE HIMACHAL PRADESH STATE ENVIRONMENT PR OTECTION POLLUTION CONTROL BOARD. WHERE AN UNDERTAKING OR ENTERPRISES FULFILLS THE ABOVE SAID CONDITIONS, IT IS ELIGIBLE FOR CLAIM OF DEDUCT ION UNDER SECTION 80IC (2)(B) OF THE ACT. 16. IN THE LIGHT OF THE ABOVE DECISIONS, WE ARE OF THE OPINION THAT LD. CIT(A) HAS CORRECTLY ALLOWED THE DEDUCTION U/S 80IC OF THE ACT. 17. GROUND NO.2: AFTER HEARING BOTH THE PARTIES, W E FIND THAT ASSESSING OFFICER HAD MADE A DISALLOWANCE OF RS. 1,19,647 /- ON NON DEDUCTION OF TAX IN RESPECT OF DISCOUNT AND COMMISSION. IT WAS EXPLA INED THAT THIS 9 EXPENDITURE WAS ON ACCOUNT OF DISCOUNT ALLOWED TO C OMPANYS TRAVEL AGENTS AND INDIVIDUAL AND WAS NOT IN THE NATURE OF COMMISSION BUT THIS PLEA WAS NOT ACCEPTED BY THE ASSESSING OFFICER. 18. ON APPEAL BEFORE CIT(A), SUBMISSIONS MADE BEFO RE ASSESSING OFFICER WERE REITERATED. THE LD. CIT(A) WAS SATISF IED AND DELETED THE ADDITION. 19. BEFORE US, THE LD. DR SUPPORTED THE ORDER OF T HE ASSESSING OFFICER. 20. ON THE OTHER HAND, THE LD. COUNSEL FOR THE ASSE SSEE REITERATED THE SUBMISSIONS MADE BEFORE THE FIRST APPELLATE AUTHORI TY AND ALSO SUPPORTED THE IMPUGNED ORDER. 21. AFTER CONSIDERING THE RIVAL SUBMISSIONS WE FIND THAT LD. CIT(A) HAS ADJUDICATED THE ISSUE VIDE PARA 8 OF HER ORDER WHIC H READS AS UNDER:- 8. THE RIVAL SUBMISSIONS HAVE BEEN CAREFULLY CONSI DERED W.R.T THE FACTS OF THE CASE, THE RELEVANT PROVISION S OF LAW AND THE RELEVANT BOOKS OF ACCOUNTS OF THE APPELLANT . ON FURTHER ENQUIRIES MADE FROM THE APPELLANT DURING TH E COURSE OF APPELLATE PROCEEDINGS, IT WAS SUBMITTED BY THE A PPELLANT THAT NO COMMISSION WAS PAID TO ANY TRAVEL AGENT OR CUSTOMERS. WHAT WAS DEBITED TO THE DISCOUNT ACCOUNT WAS THE BANK CHARGES DEDUCTED BY THE HDFC BANK AND J & K BANK ON THE USE OF THE CREDIT / DEBIT CARD. APART F ROM THE ENTRIES APPEARING ON ACCOUNT OF THE USE OF THE CRED IT/DEBIT CARDS, THE APPELLANT ALSO EXPLAINED 9 ANOTHER MISC. ENTRIES 10 RECORDED IN THE DISCOUNT ACCOUNT WHICH WERE ATTRI BUTED TO CERTAIN IRRECOVERABLE / DISPUTED AMOUNTS OR TO CANC ELLATION OF CERTAIN BOOKINGS OR TO THE REVERSE ENTRY OF EXCE SS BILLING. THE SUBMISSIONS MADE BY THE APPELLANT ARE FOUND TO BE FACTUALLY CORRECT W.R.T THE BOOKS OF ACCOUNTS. IT I S NOTED THAT MOST OF THE ENTRIES IN THE DISCOUNT ACCOUNT AR E ENTRIES OF SMALL AMOUNTS ON ACCOUNT OF CHARGES OF THE DEBIT /CREDIT CARDS OF HDFC BANK AND J & K BANK. A FEW ENTRIES A RE ON ACCOUNT OF THE DISCOUNT ALLOWED BY THE APPELLANT E. G. THE AMOUNT OF RS. 10,926/- ALLOWED AS DISCOUNT TO BSNL, DHARAMSHALA. THERE IS ONLY ONE MAJOR ENTRY OF RS. 57,970/- ON 19.01.2009 WHICH IS THE PAYMENT MADE TH ROUGH CHEQUE TO USV LTD. IT WAS EXPLAINED THAT THE SAID P AYMENT WAS MADE ON ACCOUNT OF THE ADJUSTMENT OF EXCESS CHA RGES RECOVERED AGAINST THREE BILLS AND THE DISCOUNT ACC OUNT WAS DEBITED FOR THE SAME INSTEAD SALES ACCOUNT. I T IS NOTED THAT THE A.O. HAS NOT CARED TO GO THROUGH THE DETAI LS OF THE DISCOUNT AND COMMISSION ACCOUNT. NOR HAS HE MADE AN Y EFFORT TO CONDUCT ANY INDEPENDENT ENQUIRIES BEFORE ARRIVING AT THE CONCLUSION THAT THE APPELLANT HAD PAID COMMI SSION TO VARIOUS TRAVEL AGENTS AND INDIVIDUALS. HE HAS NOT M ADE OUT ANY CASE AS TO HOW MUCH COMMISSION WAS PAID BY THE APPELLANT TO EACH TRAVEL AGENT AND HOW THE PROVISIO NS OF SECTION 194 H WERE ATTRACTED IN RESPECT THEREOF. TH E A.O. HAS THUS MADE THE DISALLOWANCE PURELY ON CONJECTURE S AND SURMISES BY MAKING GENERAL OBSERVATIONS. THEREFORE, THE SAID DISALLOWANCE IS NOT FOUND SUSTAINABLE AND IS D IRECTED TO BE DELETED. 22. THE ABOVE CLEARLY SHOWS THAT DISCOUNT CHARGES D EDUCTED BY THE HDFC BANK AND J & K BANKS RELATED TO THE USE OF CRE DIT AND DEBIT CARDS WHICH CANNOT BE TERMED AS COMMISSION. FURTHER, OTHE R PAYMENTS ALSO RELATED TO THE SMALL DISCOUNT ALLOWED TO VARIOUS CU STOMERS AS LISTED BY 11 COMMISSIONER. ALL THESE AMOUNTS CANNOT BE CONSTRUE D AS COMMISSION, AND THEREFORE, ACCORDINGLY THE LD. CIT(A) HAS CORRECTLY ADJUDICATED THE ISSUE AND WE CONFIRM HER ORDER. 23. IN THE RESULT REVENUE APPEAL IS DISMISSED AND A SSESSEES APPEAL IS ALLOWED. ORDER PRONOUNCED ON 02.08.2013. SD/- SD/- (SUSHMA CHOWLA) (T.R. SOOD) JUDICIAL MEMBER ACCOUNTANT MEMER DATED : 2 ND AUGUST, 2013 RKK COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT 4. THE CIT(A) 5. THE DR TRUE COPY BY ORDER ASSISTANT REGISTRAR .