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2015 (7) TMI 727 - ITAT HYDERABAD

2015 (7) TMI 727 - ITAT HYDERABAD - [2015] 42 ITR (Trib) 469 (ITAT [Hyd]) - Liability to deduct tax at source from the payment of such commission under S.194H - assessee in default under S.201(1)/201(1A) - CIT(A) directed the Assessing Officer to examine whether the taxes were already paid by the deductees i.e. distributors and give credit for the same. and also to charge interest under S.201(1A) from the date on which the tax was payable to the date on which the tax was actually paid by the ded .....

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o the assessee by relying on the first proviso to S.201(1), which is applicable to the year under consideration, and upholding the same, we dismiss the appeal preferred by the Revenue. - Decided against revenue. - ITA No.1668/Hyd/2014,ITA No.1669/Hyd/2014 - Dated:- 15-7-2015 - Shri P.M.Jagtap and Shri Saktijit Dey, JJ. For the Petitionet : Shri J.Siri Kumar DR For the Respondent : Shri A.V.Raghuram ORDER Per P.M. Jagtap, Accountant Member : These two appeals are preferred by the revenue against .....

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e is a company, which is engaged in the business of providing tele-communication services to the subscribers. As per the modus operandi followed by the assessee, the distributors purchase pre-paid SIM cards at a particular price, i.e. Distributor Price(DP) and sell the same to the Retailers at the Retailer Price(RP) keeping some margin for themselves. In turn, the retailers sell the SIM cards to the consumers at the Maximum Selling Charge (MSC). The difference between the RP and MSC is retailer .....

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well as for interest due under S.201(1A) of the Act. Against the order passed by the Assessing Officer under S.201(1) and S.201(1A), the assessee went in appeal before the learned CIT(A), who vide his order date 8.4.2011 directed the Assessing Officer to examine whether the taxes were already paid by the deductees i.e. distributors and give credit for the same. The Assessing Officer was also directed by the learned CIT(A) to charge interest under S.201(1A) from the date on which the tax was paya .....

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assessee, the Assessing Officer found the same to be incomplete in several aspects as pointed out by him, as under- a) That in some cases only computation details were submitted and it is not known whether the commission was offered to tax or not. b) In some cases gross receipts details of deductees were not submitted. c) In some cases only acknowledgement of return was filed without enclosing Balance Sheet, Profit & Loss Account, computation of income and Audit Report. Hence, it is not pos .....

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onsequential order dated 31.12.2013, fixing the liabi ity of the assessee company for assessment year 2009-10 at ₹ 12,68,00,387 as was originally determined vide order dated 31.12.2009. 4. Against the consequential order passed by the Assessing Officer dated 31.12.2013, the assessee again preferred an appeal before the learned CIT(A), and during the course of appellate proceedings, various submissions were made by the assessee, which, as summarized by the learned CIT(A) in his impugned ord .....

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distributor as well as the retailer. The distributor determines the retail price depending on the market conditions and sells to retailer at his own risk either at profit or at loss. c) During the proceedings before the Assessing Officer while giving effect to the CIT(A)'s Order, most of the required details were submitted. However, since there were too many distributors, reconciliation of gross receipts offered by the deductees and payments made by the assessee, was with reference to three .....

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5. Therefore, it is requested that the demand in case of distributors for whom PAN was submitted, be deleted. e) That as per the proviso to section 201(1), the. appellant obtained certificates from qualified Chartered Accountant that deductees have admitted the amount and paid tax. Therefore, relief to that extent has to be given. 6. After considering the above submissions made by the assessee, the learned CIT(A) found that the issue as to whether the difference between the Maximum Selling Charg .....

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proviso to S.201(1) inserted in the statute book with effect from 1.7.2012, and treating the same to be applicable with retrospective effect, being clarificatory in nature, she directed the Assessing Officer to give appropriate relief to the assessee u/s. 201(1)/201(1A) after verifying the payments made by the assessee and receipts admitted by the deductees. Aggrieved by the order of the learned CIT(A), Revenue has preferred this appeal on the following grounds- 1. The learned CIT(A) erred in di .....

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(1A) in the absence of any evidences as were required to be furnish to fulfil the conditions stipulated in the Proviso, except for the certificates from the Chartered Accountants. 3. The directions of the learned CIT(A) amounts to setting aside of the assessment for fresh adjudication even though the conclusion of the AO in not granting any relief in the consequential order was based on facts and absence of any evidences in support of the assessee s claim. 6. We have heard the arguments of both .....

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