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2023 (7) TMI 647 - AT - Income TaxAssessee in default u/s 201(1) - non deduction of tds u/s 194C - Order beyond statutory period as per section 201(3) - HELD THAT:- As the show cause notice was issued on 16/03/2021 and the order was passed on 30/03/2021 for the financial year 2012-13 which is not as per sec. 201(3) of the IT Act, accordingly the order has not been passed by the AO within the within the prescribed time period of seven from the end of relevant financial year in which the payment was made. See M/s Coffee Day Enterprises Ltd. case [2020 (12) TMI 1192 - ITAT BANGALORE] Decided in favour of assessee. TDS u/s 194H - service charges received from the end customers - HELD THAT:- Admittedly, in the present facts of the assessee, no expenditure is claimed by the assessee in respect of any payments alleged to be in the nature of commission / service fee by the Ld.AO. On analyzing the above scanned agreement between the assessee and M/s. Bigtree, we note that there is no non-compete clause wherein a complete /partial control of M/s. Bigtree by the assessee is not established. M/s. Bigtree on its online platform sells tickets of other / many theatre owners apart from the assessee before us. The agreement of the assessee with M/s.Bigtree is a non exclusive agreement for selling cinema tickets of the assessee through its platform. The only income earned by the Bigtree is the convenience fee that it collects from the customers / movie viewers. Even there is no discounts given by the assessee to the Bigtree on account of tickets purchased by the customer from their platform. In our view, the transaction / service fee collected by M/s. Bigtree from the end customers are actually margin charged from the end customers for provision of such services to the end customers. It is also to be noted that the end customer, pays service tax on such additional transaction / convenience fee charged by M/s. Bigtree. It is also very much pertinent to note that such service tax is not levied on the ticket charges. This fact establishes that the assessee do not cast any obligation on M/s.Bigtree to sell tickets from their platform. However one more aspect that needs to be considered is the situation where the tickets are liable to be refunded. For example, the theater owner is unable to start or play the movie, then who will be liable to refund the ticket price. Is it the Bigtree or the Theater owner. This issue needs to be ascertained. The risk needs to be analysed. We therefore direct the AO to carry out necessary verification. We direct the Ld.AO to consider the claim of assessee in accordance with law.
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