Home Case Index All Cases Income Tax Income Tax + AT Income Tax - 2019 (2) TMI AT This
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2019 (2) TMI 1363 - AT - Income TaxTDS u/s 194H - addition on account of the liabilities of consolidation charges outstanding as on 31.03.2009 for non deduction of tds - transactions being of sale /purchase and relationship being on principal to principal basis - HELD THAT:- MOU makes it clear that the contract between the consolidators and the assessee company is in the nature of 'contract of sale' with a guarantee period and not a 'contract of agency' and the difference between the agreed price and sale price for surrender of rights was an incentive /compensation /profit (whatever one may call) for offer of sale with guarantee which cannot be called a commission or a brokerage for invoking the provisions of section 194H as the contract between the consolidators and the assesse company was a contract of a principal with a principal. The principal-agent relationship which is a sine qua non for invoking provisions of section 194H is missing in this case. It was a contract of sale with a guarantee period. The Hon’ble Delhi High Court in case of CIT vs. Mother Dairy India Ltd. [2012 (2) TMI 80 - DELHI HIGH COURT] held that amount received for undertaking procurement and marketing of milk and milk products through concessionaires is a case of purchase of milk outright and not agency sales. Disallowance of salary and wages - HELD THAT:- The adhoc addition made by the Assessing Officer at 80% of the salary and wages claimed has been reduced by the CIT(A) to 20% of such salary and wages on the basis that it is excessive in nature. The CIT(A) has taken proper consideration of the nature of the assesse's business and its turnover in consonance with the ratio of salary and wages vis-a-vis turnover. Addition u/s 68 - Cash credit of Surjeet Singh - HELD THAT:- Assessing Officer noted Surjeet Singh’s confirmation. Yet, the person himself could not be produced before the Assessing Officer as the time given was short towards the end of the assessment proceedings. The Ld. AR submitted that he can be produced if so directed by the Tribunal.Therefore, we are of the opinion that it will be appropriate to remand back this issue to the file of the Assessing Officer to decide the same afresh after verifying all the details about the cash credits including presence of Shri Surjeet Singh before the Assessing Officer and his confirmation. TDS u/s 194H - HELD THAT:- It is pertinent to note that some of the evidences were not before the Assessing Officer and Assessing Officer has also not verified the whereabouts of Shri Mange Ram. Therefore, it will be appropriate to remand back this issue this issue to the file of the Assessing Officer to decide the same afresh after verifying all the details about the said transaction. Needless to say, the assessee be given the opportunity of hearing by following principles of natural justice. Ground No. 4 is partly allowed for statistical purpose. Addition he provision of 40(a)(ia) r.w.s.l94H - HELD THAT:- AR submitted that the evidence of identity & address of Shri Dharm Raj & the receipt of payment of ₹ 42,84,375/- by him for Makan, Tubewell, fasal, Pad-poudha, Murgi farm had been filed for verification alongwith sale deed of the land. As regards treating the separate additional payment to Shri Dharm Raj as mentioned above as in the nature of commission for extraneous grounds for certain services, as held by the CIT(A), no cogent reason and material /evidence has been given to treat this as commission in order to invoke the provision of sec 40(a)(ia) r.w.s. 194H despite of the evidence given by the assessee. TDS u/s 194H - consideration of various land and structures on the land purchased - HELD THAT:- evidence of identity & address of Shri Dharm Raj & the receipt of payment of ₹ 42,84,375/- by him for Makan, Tubewell, fasal, Pad-poudha, Murgi farm had been filed for verification alongwith sale deed of the land which was not at all considered by the revenue authorities. As regards treating the separate additional payment to Shri Dharm Raj as in the nature of commission for extraneous grounds for certain services, while deciding this issue also the Assessing Officer as well as CIT(A) failed to looked into the material /evidence given by the Assessee before treating this as commission in order to invoke the provision of sec 40(a)(ia) r.w.s. 194H - it will be appropriate to remand back this issue this issue to the file of the Assessing Officer to decide the same afresh
|