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2020 (10) TMI 130 - AT - Income TaxTDS u/s 194H - disallowing expenditure of commission u/s 40(a)(ia) for non-deduction of tax - HELD THAT:- As relying on order of Tribunal for AYs 2011-12 & 2012-13 [2017 (10) TMI 539 - ITAT MUMBAI] The TDS provisions are applicable under section 194H in case it is held that the nature of the transaction entered into between the assessee and the distributor is that of commission but in case if it is decided that the nature of transaction is not commission but discount given on sales it cannot be regarded to be commission which is hit by the provisions of Section 194H - in the interest of justice and fair play to both the parties set aside this issue and restore it to the file of the AO with the direction that the AO shall redecide this issue afresh in accordance with law after going though the agreement which the assessee has entered into with the distributor as well as the sample subscription application form, whether the amount represents the expenditure incurred by the assessee towards commission or whether the said amount represents cash discount given by the assessee to the distributor for sale of talk time card - Decided in favour of assessee for statistical purposes. Short deduction of TDS - TDS u/s 194C or 194J - customer support charges - HELD THAT:- This issue is squarely covered in assessee’s favor by the order of the Tribunal for AYs 2011-12 & 2012-13 [2017 (10) TMI 539 - ITAT MUMBAI] wherein found no infirmity or illegality in the order of the CIT(A) in holding that provisions of Section 40(a)(ia) will not be applicable in the case of the assessee as there was nothing in the section to treat the assessee as defaulter where there is shortfall in deduction of TDS. In fact, this decision has subsequently been followed by the co-ordinate bench of this Tribunal in assessee’s own case for AY 2010-11 [2018 (6) TMI 547 - ITAT MUMBAI] - Decided against revenue.
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