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2015 (10) TMI 2176 - ITAT MUMBAI

2015 (10) TMI 2176 - ITAT MUMBAI - TMI - Rectification of order - Non deduction of tax at source u/s 194J - rectification application as incorrect finding has been recorded and directed to provide the list of such aggregators/service providers by ITAT - Held that:- Assessee was rightly directed to provide the list of such aggregators/service providers (a) Who are deducting or not deducting TDS from their Thyrocare billing, if not, (b) whether the assessee is depositing due taxes in the state exc .....

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S, there is a loss to the nation and it is the duty of such aggregators/service provider/assessee to ensure that due taxes are deducted.

Collector /aggregators/TSPs are bound by the terms and conditions agreed upon with the assessee, therefore, there is a direct master agent relationship. CIT(Appeals) has not controverted the factual finding recorded by the ld. Assessing Officer and blindly followed some decisions, which are not even applicable the facts of the appeals of the assessee .....

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sing Officer in the light of the orders passed by the Tribunal.

So far as, the contention of the ld. DR is that during hearing on 06/02/2015 and 31/03/2015, no indication was given by the Bench with respect to non-satisfactory reply by the assessee is concerned, we note that on 18/12/2014, the appeals were kept as part heard as the assessee could not reply to the query raised by the Bench. Identically, the matter was heard on 02/01/2015, 09/01/2015 and finally was heard on 13/02/2015. .....

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ial Member): Both these miscellaneous applications are by the assessee seeking rectification in the consolidated order dated 31/03/2015, passed by this Tribunal. 2. During hearing of this applications, the crux of argument advanced on behalf of the assessee is that incorrect finding has been recorded in para 2.1 of the order of the Tribunal with respect of none production of documents by the assessee by observing that the assessee did not satisfactorily explain the aforementioned queries raised .....

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romotion was also answered in the note and further the income declared by the assessee as well as of the amount of the expenditure are part of the audited accounts. The ld. counsel alleged that during the hearing held on 06/02/2015, 31/03/2015, no indication was given with respect to nonsatisfactory reply of the assessee. The ld. counsel also invited our attention to the finding recorded in paragraph 2.6 with regard to non-production of documents. Another argument advanced by ld. counsel is omis .....

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this misconceived application of rectification, which is not permissible under the Act and secondly a well reasoned order had passed by the Tribunal. It was also contended that the Tribunal has merely remanded the matter back to the file of the ld. Assessing Officer for fresh examination as on various issues, which have been conveniently ignored by the ld. Commissioner of Income Tax (Appeals) and even the observation made in the assessment order were not considered. A strong plea was raised tha .....

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made by the ld. respective counsel, if kept in juxtaposition and analyzed, we find that various queries were raised by the Bench to explain various points as has been mentioned at page 3 of the order of the Tribunal dated 31/03/2015, which are reproduced hereunder:- 1. Nature and type of contract with (a) Thyrocare service provider and (b) Thyrocare aggregator. 2. Whether, the assessee and aforementioned contractor deducted 10% tax at source. 3. How much tax was deducted by the assessee and its .....

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ere is possibility that the impugned issues might not have been argued in the light of the aforesaid queries. It is also noted, to safeguard the interest of both sides, it is the duty of the assessee to explain before the Assessing Officer all the aforementioned queries raised by the Bench. In the order of the ld. Commissioner of Income Tax (Appeals), it has not been explained with respect to logistic materials, promotional materials whether given without any charge (free of charge) to the busin .....

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recovered back from such business associates and debit note is issued to them. It is the duty of the assessee to ensure whether TDS has been deducted by the assessee and also the business associates (aggregator and/or service providers) as per section 194J of the Act as there are no walking patients/clients of the assessee and the whole turnover is due to/through so called contractors/business associates (service provider or aggregators) It is also not clear from the order of the ld. Commissione .....

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ard the interest of the assessee/Revenue, the matter was remanded back to the file of the ld. Assessing Officer to examine the facts and then decide in accordance with law after providing due opportunity to the assessee, therefore, no grievance is caused to the assessee. Even otherwise, if the business associates of the assessee (aggregator or service provider) has not deducted the TDS, there is a loss to the nation and it is the duty of such aggregators/service provider/assessee to ensure that .....

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situation, the matter was remanded for fresh examination, therefore, there is no mistake apparent in the order of the Tribunal, which can be rectified. 2.6. We also note that through this miscellaneous application, the assessee is merely trying to get the order of the Tribunal reviewed, which is not permissible u/s 254(2) and the order cannot be review and only a mistake apparent from record only can be rectified. The scope and ambit of application u/s 254(2) is very limited. The power u/s 254( .....

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to the extent that absence of adequate reasons and possibility of different opinion are not the valid grounds for entertaining the application u/s 254(2) of the Act. Thus, from this angle also, we find no merit in the applications of the assessee. 2.7. So far as, the reliance upon the decision on the Delhi Bench of the Tribunal in SRL Ranbaxy Ltd. vs Addl. CIT (2011) 16 taxman.com 343 is concerned, we are of the considered opinion that the facts of the present assessee are different from SRL Ran .....

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ned, we find that this decision is not applicable to the facts of the present appeal, because, the ld. Commissioner of Income Tax (Appeals) has not dealt with/contradicted, with evidence, that the factual finding recorded in the assessment order is perverse. Therefore, the matter was remanded to the file of the Assessing Officer to examine the factual aspects, with certain directions, therefore, the assessee has not discharged its onus rather the onus is to be discharged during set aside proceed .....

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of the assessee. The aggregators/service providers are bound by the terms and conditions contained in the agreement, which were not considered in the order of the ld. Commissioner of Income Tax (Appeals), therefore, from this angle also, there is no merit in the miscellaneous applications filed by the assessee. 2.9. It is also noted as mentioned in para 2.1. of the order of the Tribunal dated 31/03/2015, there is specific finding of the Tribunal that neither the Assessing Officer nor the ld. Com .....

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through proper procedure prescribed and via such TSPs (aggregators and collectors). The patients are rather customers of such TSPs and the TSPs are required to send the sample in frozen ice pack to the assessee and there is a SOP prescribed for safeguarding the contents of the volume of the samples. The samples are generally reaching to the assessee on the same day or after 6 PM daily. The reports are also prepared on the letter head of the assessee. We have carefully analyzed the statement tend .....

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tatement that TSPs are restricted from forwarding samples to any other competitor laboratory for the reason that the patients who are going to the respective TSPs for getting the Thyrocare test done on the understanding that the TSPs are authorized Thyrocare service provider shall get reports or shall get their specimen processed from TTL (the assessee) only for which they have been referred by the respective doctors. We have also perused the statement of Shri Sundar Raju, Executive Director of .....

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is provided to such collector/service provider by the assessee. It is also noted that such TSPs cannot assign any rights/authority, conferred on them by the assessee company to any other person without the prior approval of the assessee company and for violation, they are liable for action. We have also perused the statement of Shri Manish Gandhi (reproduced in para 2.3 of the order of the Tribunal) wherein, in reply to question no. 6, he has specifically tendered that even they are collecting s .....

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he assessee company and in reply to question no.12, he is stated as under: Cost of the consumables required at the collecting centre, or at the residence is entirely borne by me, which is supplied by Thyrocare Tech. Ltd. The companies also providing software for online service. 2.10. In the statement tendered by Shri Manish Gandhi (reproduced at page 15 of the order of the Tribunal) it has been specifically tendered that the TSPs are provided with company software for various purchases maintaini .....

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