THYROCARE TECHNOLOGIES LTD, V. ITO (TDS) 3(4),

MA 122/MUM/2015

• Counselvise Citation: [2015] 124 COUNSELVISE.COM (IT) 3505 (ITAT-MUMBAI)
• Duration Of Justice: 3 month(s) 5 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 04-09-2015
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: E
• Assessment Year: 2009-2010
• Appeal Filed On: 29-05-2015
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: ARVIND KUMARDR
• Assessee Lawyers: R MURLIDHAR
• Keywords: Relationship of principal and agent

Judgement Text

, , , IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES E, MUMBAI , .. , , BEFORE SHRI JOGINDER SINGH, JUDICIAL MEMBER, AND SHRI B.R.BASKARAN, ACCOUNTANT MEMBER MA NOS.121 AND 122/MUM/2015 (ARISING OUT OF ITA NOS.5389 & 5390/MUM/2013) ASSESSMENT YEARS: 2009-10 & 2010-11 M/S THYROCARE TECHNOLOGIES LTD., D-37/1, TTC, MIDC, TURBHE, NAVI MUMBAI-400703 / VS. ITO (TDS)3(4), 10THE FLOOR, ROOM NO.1011, SMT. K.G.M. AYURVEDIC HOSPITAL BUILDING, CHARNI ROAD, MUMBAI-400002 ( /ASSESSEE) ( / REVENUE) P.A. NO. AABCT2577P / ASSESSEE BY) SHRI R. MURLIDHAR / REVENUE BY : SHRI ARVIND KUMAR-DR ! ' / DATE OF HEARING 04/09/2015 DATE OF ORDER / ! ' 24/09/2015 / O R D E R PER JOGINDER SINGH (JUDICIAL MEMBER) : BOTH THESE MISCELLANEOUS APPLICATIONS ARE BY THE AS SESSEE SEEKING RECTIFICATION IN THE CONSOLIDATED ORDER DAT ED 31/03/2015, PASSED BY THIS TRIBUNAL. THYROCARE TECHNOLOGIES LTD MA NO.121 & 122/MUM/2015 2 2. DURING HEARING OF THIS APPLICATIONS, THE CRUX O F ARGUMENT ADVANCED ON BEHALF OF THE ASSESSEE IS THAT INCORRECT FINDING HAS BEEN RECORDED IN PARA 2.1 OF THE ORDER OF THE TRIBUNAL WITH RESPECT OF NONE PRODUCTION OF DOCUMEN TS BY THE ASSESSEE BY OBSERVING THAT THE ASSESSEE DID NOT SA TISFACTORILY EXPLAIN THE AFOREMENTIONED QUERIES RAISED BY THE BE NCH AND LOST SIGHT OF THE NOTE FURNISHED BY THE ASSESSEE ON 18/12/2014. THE CLAIM OF THE ASSESSEE IS THAT THE ASSESSEE PRODUCED NECESSARY DOCUMENTS IN ITS REPLY. IT WAS ALSO ARGUED BY THE LD. COUNSEL THAT WITH RESPECT TO THE QUERY O F NON DEDUCTION OF TAX AT SOURCE, THE ASSESSEE FURNISHED SAMPLE COPIES OF TDS CERTIFICATE ISSUED BY TSPS, WHILE DED UCTING TDS U/S 194J ON PAYMENTS MADE TO THE ASSESSEE. THE LD. COUNSEL FURTHER CONTENDED THAT WITH RESPECT TO INCURRING OF EXPENDITURE ON BRAND PROMOTION WAS ALSO ANSWERED IN THE NOTE AN D FURTHER THE INCOME DECLARED BY THE ASSESSEE AS WELL AS OF T HE AMOUNT OF THE EXPENDITURE ARE PART OF THE AUDITED ACCOUNTS. T HE LD. COUNSEL ALLEGED THAT DURING THE HEARING HELD ON 06/ 02/2015, 31/03/2015, NO INDICATION WAS GIVEN WITH RESPECT TO NON- SATISFACTORY REPLY OF THE ASSESSEE. THE LD. COUNSEL ALSO INVITED OUR ATTENTION TO THE FINDING RECORDED IN PARAGRAPH 2.6 WITH REGARD TO NON-PRODUCTION OF DOCUMENTS. ANOTHER ARGU MENT ADVANCED BY LD. COUNSEL IS OMISSION TO CONSIDER THE DECISION OF THE DELHI BENCH OF THE TRIBUNAL IN THE CASE OF SRL RANBAXY LTD. VS ADDL.CIT (2011) 16 TAXMAN.COM 343 (DEL.) AN D THE DECISION IN CIT VS QUATAR AIRWAYS 332 ITR 25 (BOM.) . THE CRUX THYROCARE TECHNOLOGIES LTD MA NO.121 & 122/MUM/2015 3 OF ARGUMENT IS THAT THE ORDER OF REMAND TO THE ASSE SSING OFFICER IS BASED ON MISCONCEPTION. 2.1. ON THE OTHER HAND, THE LD. DR, SHRI ARVIND KU MAR, STRONGLY DEFENDED THE CONCLUSION ARRIVED AT IN THE IMPUGNED ORDER BY CONTENDING THAT THE ASSESSEE IS TRYING TO GET THE ORDER REVIEWED, THROUGH THIS MISCONCEIVED APPLICATION OF RECTIFICATION, WHICH IS NOT PERMISSIBLE UNDER THE ACT AND SECONDLY A WELL REASONED ORDER HAD PASSED BY THE TRIBUNAL. IT WAS A LSO CONTENDED THAT THE TRIBUNAL HAS MERELY REMANDED THE MATTER BACK TO THE FILE OF THE LD. ASSESSING OFFICER FOR F RESH EXAMINATION AS ON VARIOUS ISSUES, WHICH HAVE BEEN CONVENIENTLY IGNORED BY THE LD. COMMISSIONER OF INC OME TAX (APPEALS) AND EVEN THE OBSERVATION MADE IN THE ASSE SSMENT ORDER WERE NOT CONSIDERED. A STRONG PLEA WAS RAISED THAT IF THE ASSESSEE IS SO CLEAN THEN WHY THE ASSESSEE IS TRYIN G TO THWART THE PROCEEDINGS AND RATHER EXPECTED TO FILE THE NEC ESSARY DETAILS BEFORE THE ASSESSING OFFICER. 2.3. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL AVAILABLE ON RECORD. IF THE OB SERVATION MADE IN THE ASSESSMENT ORDER, LEADING TO ADDITION M ADE TO THE TOTAL INCOME, CONCLUSION DRAWN IN THE IMPUGNED ORDE R, MATERIAL AVAILABLE ON RECORD, CONCLUSION DRAWN BY T HE TRIBUNAL IN THE ORDER DATED 31/03/2015, ASSERTIONS MADE BY T HE LD. RESPECTIVE COUNSEL, IF KEPT IN JUXTAPOSITION AND AN ALYZED, WE FIND THAT VARIOUS QUERIES WERE RAISED BY THE BENCH TO EXPLAIN THYROCARE TECHNOLOGIES LTD MA NO.121 & 122/MUM/2015 4 VARIOUS POINTS AS HAS BEEN MENTIONED AT PAGE 3 OF T HE ORDER OF THE TRIBUNAL DATED 31/03/2015, WHICH ARE REPRODUCED HEREUNDER:- 1. NATURE AND TYPE OF CONTRACT WITH (A) THYROCARE S ERVICE PROVIDER AND (B) THYROCARE AGGREGATOR. 2. WHETHER, THE ASSESSEE AND AFOREMENTIONED CONTRAC TOR DEDUCTED 10% TAX AT SOURCE. 3. HOW MUCH TAX WAS DEDUCTED BY THE ASSESSEE AND IT S CLIENTS. 4. HOW MUCH INCOME WAS DECLARED BY THE ASSESSEE. 5. HOW MANY PERSONS/CLIENTS/CONTRACTORS DEDUCTED TA X AT SOURCE. 6. HOW MUCH EXPENSES WERE CLAIMED BY THE ASSESSEE ON PURCHASE OF PROMOTIONAL MATERIAL AND HOW MUCH MONEY WAS TAKEN BY THE ASSESSEE FROM THE CLIENTS/CONTRACTORS/SERVIC E PROVIDERS/ AGGREGATORS. 2.4. WE NOTE THAT WHILE ADJUDICATING THE APPEALS O F THE ASSESSEE, THE LD. COMMISSIONER OF INCOME TAX (APPEA LS) CONVENIENTLY IGNORED THE OBSERVATIONS MADE BY THE L D. ASSESSING OFFICER. THERE IS POSSIBILITY THAT THE IM PUGNED ISSUES MIGHT NOT HAVE BEEN ARGUED IN THE LIGHT OF THE AFOR ESAID QUERIES. IT IS ALSO NOTED, TO SAFEGUARD THE INTERE ST OF BOTH SIDES, IT IS THE DUTY OF THE ASSESSEE TO EXPLAIN BEFORE TH E ASSESSING OFFICER ALL THE AFOREMENTIONED QUERIES RAISED BY TH E BENCH. IN THE ORDER OF THE LD. COMMISSIONER OF INCOME TAX (AP PEALS), IT HAS NOT BEEN EXPLAINED WITH RESPECT TO LOGISTIC MAT ERIALS, PROMOTIONAL MATERIALS WHETHER GIVEN WITHOUT ANY CHA RGE (FREE OF CHARGE) TO THE BUSINESS ASSOCIATES (AGGREGATOR A ND/OR SERVICE THYROCARE TECHNOLOGIES LTD MA NO.121 & 122/MUM/2015 5 PROVIDER) FOR WHICH THE ASSESSEE IS CLAIMING EXPEND ITURE UNDER WHICH HEAD AND ALSO WHETHER THE ASSESSEE IS CHARGIN G FROM SUCH BUSINESS ASSOCIATES FOR SUCH MATERIAL. IT WAS ALSO NOT EXPLAINED IN THE IMPUGNED ORDER WHETHER THE ASSESSE E IS CLAIMING ANY DAMAGES AS EXPENDITURE AND ALSO CHARGI NG THE SAME FROM SERVICE PROVIDER/AGGREGATORS. IT WAS ALS O NOT CLEAR WHETHER THE AMOUNT OF COURIER CHARGES IS CLAIMED AS EXPENDITURE AND ALSO WHETHER IT IS ALSO RECEIVED/RE COVERED BACK FROM SUCH BUSINESS ASSOCIATES AND DEBIT NOTE IS ISS UED TO THEM. IT IS THE DUTY OF THE ASSESSEE TO ENSURE WHE THER TDS HAS BEEN DEDUCTED BY THE ASSESSEE AND ALSO THE BUSINESS ASSOCIATES (AGGREGATOR AND/OR SERVICE PROVIDERS) AS PER SECTION 194J OF THE ACT AS THERE ARE NO WALKING PATIENTS/CL IENTS OF THE ASSESSEE AND THE WHOLE TURNOVER IS DUE TO/THROUGH S O CALLED CONTRACTORS/BUSINESS ASSOCIATES (SERVICE PROVIDER O R AGGREGATORS) IT IS ALSO NOT CLEAR FROM THE ORDER OF THE LD. COMMISSIONER OF INCOME TAX (APPEALS), WHETHER THE A SSESSEE ASKED THE SERVICE PROVIDERS/AGGREGATORS TO DEDUCT T DS AS PER RULE, WHILE APPOINTING THEM. THEREFORE, THE ASSESSE E WAS RIGHTLY DIRECTED TO PROVIDE THE LIST OF SUCH AGGREGATORS/SE RVICE PROVIDERS (A) WHO ARE DEDUCTING OR NOT DEDUCTING TD S FROM THEIR THYROCARE BILLING, IF NOT, (B) WHETHER THE AS SESSEE IS DEPOSITING DUE TAXES IN THE STATE EXCHEQUER. EVEN OTHERWISE, IT IS THE MANDATE OF THE CONSTITUTION TO LEVY AND COLL ECT DUE TAXES, THEREFORE, TO SAFEGUARD THE INTEREST OF THE ASSESSE E/REVENUE, THE MATTER WAS REMANDED BACK TO THE FILE OF THE LD. ASSESSING OFFICER TO EXAMINE THE FACTS AND THEN DECIDE IN ACC ORDANCE WITH THYROCARE TECHNOLOGIES LTD MA NO.121 & 122/MUM/2015 6 LAW AFTER PROVIDING DUE OPPORTUNITY TO THE ASSESSEE , THEREFORE, NO GRIEVANCE IS CAUSED TO THE ASSESSEE. EVEN OTHERW ISE, IF THE BUSINESS ASSOCIATES OF THE ASSESSEE (AGGREGATOR OR SERVICE PROVIDER) HAS NOT DEDUCTED THE TDS, THERE IS A LOS S TO THE NATION AND IT IS THE DUTY OF SUCH AGGREGATORS/SERVI CE PROVIDER/ASSESSEE TO ENSURE THAT DUE TAXES ARE DEDU CTED. 2.5. SO FAR AS, THE CONTENTION OF THE LD. COUNSEL FOR THE ASSESSEE THAT INCORRECT FINDING HAS BEEN RECORDED I N PARAGRAPH- 2.1 AND 2.6, IN THE ORDER OF THE TRIBUNAL, WITH REG ARD TO NON- PRODUCTION OF DOCUMENTS BY THE ASSESSEE TO SUBSTANT IATE WITH TSPS IS ALSO INCORRECT. THE TRIBUNAL AFTER CONSIDE RATION OF TOTALITY OF FACTS, FOUND THAT THE LD. COMMISSIONER OF INCOME TAX (APPEALS) DID NOT CONSIDER/APPRECIATE THE OBSERVATI ON/FACTUAL FINDING MADE IN THE ASSESSMENT ORDER, IN THAT SITUA TION, THE MATTER WAS REMANDED FOR FRESH EXAMINATION, THEREFOR E, THERE IS NO MISTAKE APPARENT IN THE ORDER OF THE TRIBUNAL, W HICH CAN BE RECTIFIED. 2.6. WE ALSO NOTE THAT THROUGH THIS MISCELLANEOUS APPLICATION, THE ASSESSEE IS MERELY TRYING TO GET T HE ORDER OF THE TRIBUNAL REVIEWED, WHICH IS NOT PERMISSIBLE U/S 254 (2) AND THE ORDER CANNOT BE REVIEW AND ONLY A MISTAKE APPARENT FROM RECORD ONLY CAN BE RECTIFIED. THE SCOPE AND AMBIT O F APPLICATION U/S 254(2) IS VERY LIMITED. THE POWER U/S 254(2) DO ES NOT CONTEMPLATE A REHEARING OF THE APPEAL FOR FRESH DIS POSAL. AS WAS HELD IN CIT VS ITAT (2006) 155 TAXMAN 378 (DEL. ). THE TRIBUNAL OTHERWISE HAVING JURISDICTION ONLY TO RECT IFY THE THYROCARE TECHNOLOGIES LTD MA NO.121 & 122/MUM/2015 7 MISTAKES AND CANNOT GO INTO THE MERITS OF THE APPEA L AGAIN AND THE MISTAKE MUST BE CLERICAL, GRAMMATICAL, ARITHMET ICAL ARE OF LIKE NATURE WHICH COULD BE DETECTED WITHOUT RE- ARGUMENT/REAPPRAISAL OF FACTS. THE HONBLE PUNJAB & HARYANA HIGH COURT IN POPULAR ENGINEERING COMPANY VS ITAT 2 48 ITR 577, EVEN WENT TO THE EXTENT THAT ABSENCE OF ADEQU ATE REASONS AND POSSIBILITY OF DIFFERENT OPINION ARE NOT THE VA LID GROUNDS FOR ENTERTAINING THE APPLICATION U/S 254(2) OF THE ACT. THUS, FROM THIS ANGLE ALSO, WE FIND NO MERIT IN THE APPLICATIO NS OF THE ASSESSEE. 2.7. SO FAR AS, THE RELIANCE UPON THE DECISION ON THE DELHI BENCH OF THE TRIBUNAL IN SRL RANBAXY LTD. VS ADDL. CIT (2011) 16 TAXMAN.COM 343 IS CONCERNED, WE ARE OF THE CONSI DERED OPINION THAT THE FACTS OF THE PRESENT ASSESSEE ARE DIFFERENT FROM SRL RANBAXY LTD. BECAUSE AS PER THE TERMS AND CONDI TIONS OF THE AGREEMENT OF THE ASSESSEE WITH ITS AGGREGATORS/ SERVICE PROVIDERS, NECESSARILY, SUCH SAMPLE HAS TO BE THROU GH THYROCARE ONLY AND NOT FROM ANY OTHER LABORATORY, T HEREFORE, RELIANCE UPON THIS DECISION IS CLEARLY MISCONCEIVED . SO FAR AS, THE DECISION FROM HONBLE ALLAHABAD HIGH COURT TO T HE EFFECT THAT ONUS IS ON THE REVENUE TO DEMONSTRATE THAT THE TAXES HAS NOT BEEN RECOVERED FROM THE PERSON WHO HAD THE PRIM ARY LIABILITY TO PAY TAX, IS CONCERNED, WE FIND THAT TH IS DECISION IS NOT APPLICABLE TO THE FACTS OF THE PRESENT APPEAL, BECAUSE, THE LD. COMMISSIONER OF INCOME TAX (APPEALS) HAS NOT DE ALT WITH/CONTRADICTED, WITH EVIDENCE, THAT THE FACTUAL FINDING RECORDED IN THE ASSESSMENT ORDER IS PERVERSE. THER EFORE, THE THYROCARE TECHNOLOGIES LTD MA NO.121 & 122/MUM/2015 8 MATTER WAS REMANDED TO THE FILE OF THE ASSESSING OF FICER TO EXAMINE THE FACTUAL ASPECTS, WITH CERTAIN DIRECTION S, THEREFORE, THE ASSESSEE HAS NOT DISCHARGED ITS ONUS RATHER THE ONUS IS TO BE DISCHARGED DURING SET ASIDE PROCEEDINGS, PURSUAN T TO THE ORDER OF THE TRIBUNAL DATED 31/03/2015, THUS, THERE IS NO MERIT IN THE ARGUMENT OF THE ASSESSEE. THE OTHER CA SES RELIED UPON BY THE ASSESSEE ARE SIMILARLY CANNOT COME TO T HE RESCUE OF THE ASSESSEE. 2.8. SO FAR AS THE CONTENTION OF THE ASSESSEE THAT THERE IS NO RELATIONSHIP OF PRINCIPAL AND AGENT BETWEEN THE ASSESSEE AND THE TSPS (AGGREGATORS/SERVICE PROVIDERS) IS ALS O FACTUALLY INCORRECT AS THE ASSESSEE IS A PRINCIPAL AND THE AGGREGATORS/SERVICE PROVIDERS ARE CLEARLY AGENT OF THE ASSESSEE. THE AGGREGATORS/SERVICE PROVIDERS ARE BOUND BY THE TERMS AND CONDITIONS CONTAINED IN THE AGREEMENT, WHICH WERE N OT CONSIDERED IN THE ORDER OF THE LD. COMMISSIONER OF INCOME TAX (APPEALS), THEREFORE, FROM THIS ANGLE ALSO, THERE I S NO MERIT IN THE MISCELLANEOUS APPLICATIONS FILED BY THE ASSESSE E. 2.9. IT IS ALSO NOTED AS MENTIONED IN PARA 2.1. OF THE ORDER OF THE TRIBUNAL DATED 31/03/2015, THERE IS SPECIFIC FINDING OF THE TRIBUNAL THAT NEITHER THE ASSESSING OFFICER NOR THE LD. COMMISSIONER OF INCOME TAX (APPEALS) EXAMINED THE P OINTS MENTIONED AT PAGE 3 OF THE ORDER OF THE TRIBUNAL AN D DISCUSSED IN THE PRESIDING PARA OF THIS ORDER. IT IS WORTH M ENTIONING THAT EVEN IN THE STATEMENT TENDERED BY SHRI SACHIN SALVI (REPRODUCED AT PAGES 4 ONWARDS OF THE ORDER OF THE TRIBUNAL THYROCARE TECHNOLOGIES LTD MA NO.121 & 122/MUM/2015 9 DATED 31/03/2015), THERE IS NO WALKING PATIENT WITH THE ASSESSEE COMPANY AND NOT A SINGLE SAMPLE FROM THE P ATIENT IS DIRECTLY COLLECTED BY THE ASSESSEE, EACH AND EVERY SAMPLE (PROCESSED AT TTL) HAS COME TO THROUGH PROPER PROCE DURE PRESCRIBED AND VIA SUCH TSPS (AGGREGATORS AND COLLE CTORS). THE PATIENTS ARE RATHER CUSTOMERS OF SUCH TSPS AND THE TSPS ARE REQUIRED TO SEND THE SAMPLE IN FROZEN ICE PACK TO T HE ASSESSEE AND THERE IS A SOP PRESCRIBED FOR SAFEGUARDING THE CONTENTS OF THE VOLUME OF THE SAMPLES. THE SAMPLES ARE GENERALL Y REACHING TO THE ASSESSEE ON THE SAME DAY OR AFTER 6 PM DAILY . THE REPORTS ARE ALSO PREPARED ON THE LETTER HEAD OF THE ASSESSEE. WE HAVE CAREFULLY ANALYZED THE STATEMENT TENDERED BY S HRI SACHIN SALVI, WHICH CLEARLY DEMONSTRATE THAT TSPS ARE AUTH ORIZED TO COLLECT SPECIMENS FROM THE PATIENTS AND THEY ARE BO UND TO SEND TO THE LABORATORY/ASSESSEE FOR PROCESSING. THE SEC URITY DEPOSIT IS TAKEN FROM THEM AGAINST THE CREDIT LIMIT GIVEN T O THEM AGAINST THE BILLING AND THE TSPS ARE SENDING THE SP ECIMEN TO THE ASSESSEE FOR WHICH THEY ARE BILLED AS PER AGREE D B2B RATES AND AGAINST WHICH THE PAYMENTS ARE RECEIVED FROM TH EM. THE REPLY TO QUESTION NUMBER ELEVEN, THERE IS A CLEAR S TATEMENT THAT TSPS ARE RESTRICTED FROM FORWARDING SAMPLES TO ANY OTHER COMPETITOR LABORATORY FOR THE REASON THAT THE PATIE NTS WHO ARE GOING TO THE RESPECTIVE TSPS FOR GETTING THE THYROC ARE TEST DONE ON THE UNDERSTANDING THAT THE TSPS ARE AUTHORIZED T HYROCARE SERVICE PROVIDER SHALL GET REPORTS OR SHALL GET THE IR SPECIMEN PROCESSED FROM TTL (THE ASSESSEE) ONLY FOR WHICH TH EY HAVE BEEN REFERRED BY THE RESPECTIVE DOCTORS. WE HAVE AL SO PERUSED THYROCARE TECHNOLOGIES LTD MA NO.121 & 122/MUM/2015 10 THE STATEMENT OF SHRI SUNDAR RAJU, EXECUTIVE DIRECT OR OF THE ASSESSEE COMPANY, WHO WAS EXAMINED ON OATH WHICH HA S ALSO BEEN EXAMINED BY US, WHILE PASSING THE ORDER DATED 31/03/2015. THUS, THE TOTALITY OF FACTS CLEARLY IND ICATES THAT THERE IS RELATION OF MASTER/PRINCIPAL AND AGENT BET WEEN THE ASSESSEE AND COLLECTORS/SERVICE PROVIDERS. THUS, FR OM THIS ANGLE ALSO, WE FIND NO SUBSTANCE IN THE ARGUMENT OF THE A SSESSEE. THE COLLECTORS/SERVICE PROVIDERS ARE UNDISPUTEDLY USING THE LOGO/NAME OF THYROCARE (ASSESSEE) AND THE CONSUMABL ES/ LOGISTIC/OTHER MATERIAL IS PROVIDED TO SUCH COLLECT OR/SERVICE PROVIDER BY THE ASSESSEE. IT IS ALSO NOTED THAT SU CH TSPS CANNOT ASSIGN ANY RIGHTS/AUTHORITY, CONFERRED ON TH EM BY THE ASSESSEE COMPANY TO ANY OTHER PERSON WITHOUT THE PR IOR APPROVAL OF THE ASSESSEE COMPANY AND FOR VIOLATION, THEY ARE LIABLE FOR ACTION. WE HAVE ALSO PERUSED THE STATEM ENT OF SHRI MANISH GANDHI (REPRODUCED IN PARA 2.3 OF THE ORDER OF THE TRIBUNAL) WHEREIN, IN REPLY TO QUESTION NO. 6, HE H AS SPECIFICALLY TENDERED THAT EVEN THEY ARE COLLECTING SPECIMEN FRO M SMALL LABORATORIES, HOSPITALS, NURSING HOMES, RESIDENCE O F THE PATIENTS ON THEIR DEMAND AND CHARGES THE PRICES/RAT ES ON THE BASIS OF CATALOGUE RECOMMENDED BY THYROCARE TECH. L TD. (THE ASSESSEE). IN REPLY QUESTION NO.8, HE TENDERED THA T THEY CANNOT CHARGE ANYTHING ABOVE THE CATALOGUE RATE GIVEN BY T HYROCARE. IN REPLY QUESTION NO.10, IT WAS ADMITTED THAT THE A SSESSEE GIVES DISCOUNT AND INCENTIVES BY CREDIT NOTES. IN REPLY TO QUESTION NO. 11 HE STATED THAT THEY ARE USING THE LOGOS OF T HE ASSESSEE COMPANY AND IN REPLY TO QUESTION NO.12, HE IS STATE D AS UNDER: THYROCARE TECHNOLOGIES LTD MA NO.121 & 122/MUM/2015 11 COST OF THE CONSUMABLES REQUIRED AT THE COLLECTING CENTRE, OR AT THE RESIDENCE IS ENTIRELY BORNE BY ME , WHICH IS SUPPLIED BY THYROCARE TECH. LTD. THE COMPANIES ALSO PROVIDING SOFTWARE FOR ONLINE SERVIC E. 2.10. IN THE STATEMENT TENDERED BY SHRI MANISH GA NDHI (REPRODUCED AT PAGE 15 OF THE ORDER OF THE TRIBUNAL ) IT HAS BEEN SPECIFICALLY TENDERED THAT THE TSPS ARE PROVIDED WI TH COMPANY SOFTWARE FOR VARIOUS PURCHASES MAINTAINING ACCOUNTS , DOWNLOADING REPORT FROM THE COMPANY WEBSITE (SAMPLE REPORT) CONTAINING COMPANIES LOGOS AND TSPS ARE NOT PERMITT ED TO GET THE TEST DONE FROM ANY OTHER LABORATORY OR HOSPITAL WITHOUT PRIOR KNOWLEDGE OF THE COMPANY AND FURTHER ON ANNUL MENT OF AGREEMENT, THE TSPS (COLLECTORS/AGGREGATORS) ARE OB LIGED TO HANDOVER BACK TO THE PROPERTIES OF THE COMPANY AND SUCH AS REPORTS FORMS, BAR CODED VILAS, REPORT ENVELOPS, MA RKETING MATERIALS, LITERATURE AND PAMPHLETS, HAVING COMPANI ES LOGOS TO THE COMPANY. THUS, TOTALITY OF FACTS, CLEARLY INDIC ATES THAT SUCH COLLECTOR /AGGREGATORS/TSPS ARE BOUND BY THE TERMS AND CONDITIONS AGREED UPON WITH THE ASSESSEE, THEREFORE , THERE IS A DIRECT MASTER AGENT RELATIONSHIP. THE LD. COMMISSIO NER OF INCOME TAX (APPEALS) HAS NOT CONTROVERTED THE FACTU AL FINDING RECORDED BY THE LD. ASSESSING OFFICER AND BLINDLY F OLLOWED SOME DECISIONS, WHICH ARE NOT EVEN APPLICABLE THE FACTS OF THE APPEALS OF THE ASSESSEE. EVEN OTHERWISE, AS MENTIO NED EARLIER, NO GRIEVANCE WILL BE CAUSED TO EITHER SIDE, IF THE MATTER IS EXAMINE AFRESH IN THE LIGHT OF THE DIRECTION CONTAI NED IN THE ORDER OF THE TRIBUNAL DATED 31/03/2015 AND DISCUSSI ON MADE THYROCARE TECHNOLOGIES LTD MA NO.121 & 122/MUM/2015 12 IN THE PRESENT ORDER, WHILE DELIBERATING UPON THE M ISCELLANEOUS APPLICATIONS FILED BY THE ASSESSEE AS THE MANDATE O F THE CONSTITUTION IS TO LEVY AND COLLECT DUE TAXES. IF THE CONSCIOUS OF THE ASSESSEE IS VERY MUCH CLEAR, THEN, ITS NOT AFRA ID FROM FRESH ADJUDICATION BY THE ASSESSING OFFICER IN THE LIGHT OF THE ORDERS PASSED BY THE TRIBUNAL. 2.11. SO FAR AS, THE CONTENTION OF THE LD. DR IS T HAT DURING HEARING ON 06/02/2015 AND 31/03/2015, NO INDICATION WAS GIVEN BY THE BENCH WITH RESPECT TO NON-SATISFACTORY REPLY BY THE ASSESSEE IS CONCERNED, WE NOTE THAT ON 18/12/2014, THE APPEALS WERE KEPT AS PART HEARD AS THE ASSESSEE COU LD NOT REPLY TO THE QUERY RAISED BY THE BENCH. IDENTICALLY, THE MATTER WAS HEARD ON 02/01/2015, 09/01/2015 AND FINALLY WAS HEA RD ON 13/02/2015. THE SUBMISSIONS MADE BY THE ASSESSEE WE RE DULY CONSIDERED AND THEREAFTER A DECISION WAS ARRIVED AT , THEREFORE, THE ASSERTION OF THE ASSESSEE IS FACTUALLY INCORREC T. IN VIEW OF THE UNCONTROVERTED FACTS, WE FIND NO INFIRMITY/MISTAKE, WHICH CAN BE RECTIFIED IN THE OR DER OF THE TRIBUNAL, CONSEQUENTLY, THE MISCELLANEOUS APPLICATI ONS FILED BY THE ASSESSEE ARE HAVING NO MERIT, THEREFORE, DISMIS SED. THIS ORDER WAS PRONOUNCED ON 24/09/2015 SD/- SD/- ( B.R. BASKARAN ) (JOGINDER SINGH) '# / ACCOUNTANT MEMBER $# / JUDICIAL MEMBER MUMBAI; $ DATED : 24/09/201 5 F{X~{T? P.S/. .. THYROCARE TECHNOLOGIES LTD MA NO.121 & 122/MUM/2015 13 %$&'()(*& / COPY OF THE ORDER FORWARDED TO : 1. %&'( / THE APPELLANT 2. )*'( / THE RESPONDENT. 3. + ( %& ) / THE CIT, MUMBAI. 4. + / CIT(A)- , MUMBAI 5. -. ) / , %&' %/ 0 , / DR, ITAT, MUMBAI 6. .1 2 / GUARD FILE. / BY ORDER, *-& ) //TRUE COPY// / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI