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2018 (7) TMI 1852 - AT - Income TaxTDS u/s 194H - non-deduction of tax at source on the commission payment made by assessee as wholesaler of SIM cards / mobile phones etc to retailers / sub-dealers - Held that:- We note that the Coordinate Bench of this Tribunal in case of M/s Chocopack Enterprises vs. ITO (2018 (2) TMI 424 - ITAT JAIPUR) has dealt with this issue of disallowance U/s 40(a)(ia) for want of deduction of TDS U/s 194H in respect of the commission paid to the retailer/sub-dealer wherein held The determination of sale price of recharge coupons is in the sole domain of the service provider and the assessee is no role in determining the retail price at which the retailer is selling the recharge coupons to the customer or end user of the service. Accordingly, when the assessee is not directly and indirectly in deciding the quantum of alleged commission/discount as well as determining the retail price at which the recharge coupons is sold to the customer then the provisions of section 194H cannot be applied on the assessee. - Decided in favour of assessee. Disallowance made on account of under reporting of commission by the assessee - difference of more than ₹ 10 lacs in the commission receipt credited in the profit and loss account and commission payment shown by the mobile/cellular operating companies - Held that:- Now we find that the assessee has explained the difference in the amount due to service tax reimbursement and commission directly paid to the retailer by the companies. The amount of commission as shown in show notice ₹ 55,73,370/- Excess commission shown by us ₹ 7,531/-. Since, these details and relevant recorded have not been examined by the AO, therefore, we remit this issue to the record of the Assessing officer for verification and considering the reconciliation furnished by the assessee. - Decided in favour of assessee for statistical purposes.
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