TMI Blog2015 (10) TMI 1383X X X X Extracts X X X X X X X X Extracts X X X X ..... arges, discount and commission pertaining to Mumbai circle only. In respect of TDS on commission and discount, we found that Hon’ble Delhi High Court in the case of CIT Vs. Idea Cellular Limited, [2010 (2) TMI 24 - DELHI HIGH COURT ] has already decided the issue against the assessee, held that commission is subject to TDS 194H. Accordingly, the CIT was justified in alleging that ITO(TDS) was not correctly appreciated assessee’s default for non-deduction of tax at source in respect of commission and discount. In view of the above, it is not a fit case for grant of any stay of the proceedings. Accordingly, we modify the order of CIT(TDS), Mumbai only to a limited extent of directing the ITO(TDS) to verify the correctness of tax deducte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ving agreed for arguing on merits, the Bench considered it reasonable to hear the appeals on merit also, so as to resolve the entire controversy. 4. Brief facts of the case are that assessee is engaged in the business of providing mobile telecom services. A survey .133A was conducted on 9-9-2011, consequently, order dated 26-3-2012. 201(1)/(1A) of the Act, was passed raising a demand of ₹ 5,06,612/- on account of non-deduction of taxes on roaming charges paid by the assessee in the A.Y.2009-10. Thereafter the CIT (TDS), Mumbai issued notice .263 directing the assessee to show cause as to why the assessment order dated 26-3-2012 should not be set aside. In the order .263, the CIT observed that the TDS Officer has failed to give any ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction of CIT (TDS), Mumbai is confined only to the concerned AO of TDS, Mumbai Circle only and not to other AOs posted at 22 different circles all over India, where assessee was filing separate TDS returns. The main crux of argument of the learned AR was that the CIT (TDS) Mumbai should have asked the concerned ITO (TDS), Mumbai with regard to verify correctness of the TDS payment on the roaming charges, commission and discount to dealers pertaining to Mumbai circle only and not to other 21 circles on which CIT (TDS), Mumbai has no jurisdiction. 6. On the other hand, learned DR contended that since the assessee has not correctly deducted tax at source in respect of various expenditure claimed in the profit and loss account, CIT has corre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iance of TDS an appropriate order has to be passed by respective TDS officers. In the instant case also assessee has filed TDS return at various places where it was having TAN and the same were also assessed by different ITO(TDS) having jurisdiction over the respective TAN. Against these orders of TDS, appeals are pending with the different CIT(A) as well as before other appellate authorities. Since the assessee was having different TANs, respective TDS returns were filed and they were assessed separately. Even though income tax assessment of the assessee was to be framed at one place, where the registered office of the assessee company is situated but in respect of TDS returns, separate ITO(TDS) is having jurisdiction with respect to the d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of tax at source in respect of commission and discount. 9. In view of the above, it is not a fit case for grant of any stay of the proceedings. Accordingly, we modify the order of CIT(TDS), Mumbai only to a limited extent of directing the ITO(TDS) to verify the correctness of tax deducted at source in respect of roaming charges, discount and commission pertaining to Mumbai circle only, in place of entire expenditure debited in the profit and loss account which is pertaining to all 21 TANs allotted to the assessee all over India. Assessee is directed to furnish full details with regard to the actual amount of expenditure debited in respect of roaming charges, discount and commission before the AO along with documentary evidence so as to s ..... X X X X Extracts X X X X X X X X Extracts X X X X
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