TMI Blog2016 (7) TMI 106X X X X Extracts X X X X X X X X Extracts X X X X ..... 016 - Shri Shailendra Kumar Yadav, JM And Shri Rajesh Kumar, AM For the Assessee : Shri Rajeev Khandelwal and Neelkanth Khandelwal For the Revenue : Love Kumar ORDER Per Rajesh Kumar, A. M. This is an appeal filed by the assessee and challenging the order dated 28.3.2014 of ld.CIT(A)-31, Mumbai, for assessment year 2009-10. 2. The issue raised in the various grounds of appeal raised by the assessee is against the confirmation of rejection of books of account upholding the addition of ₹ 60,33,735/- arising out of short accounting of receipts in the books of accounts vis- -vis in the TDS certificates by upholding the applicability of section 40(a)(ia) of the Income Tax Act, 1961 for non deducting of tax at source. 3. Brief facts of the case are that the assessee filed return of income on 30.9.2009 declaring total income of ₹ 7,77,890/-. The case of the assessee was processed under section 143(1) of the Act, however, later on the case was selected for scrutiny and statutory notices under section 143(2) and 142(1) were issued and served upon the assessee. The assessee was a sole selling agent of M D Salauddin, Prop of S S Films and was engaged ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ds of appeal raised in the instant case being related, the same are taken up together for disposal for the sake of convenience. 5.1 In Ground No. 1 to 4, the appellant has challenged the addition of ₹ 60,33,735/-. During the scrutiny proceedings, the AO after perusal of TDS certificates furnished by the appellant found that the total receipts as per TDS certificates were ₹ 82,38,OOO/- whereas the appellant had shown total receipt of only ₹ 22,04,265/-. The A.O. asked the appellant to reconcile the difference. The AR explained that the appellant received gross proceeds of the entire amount on behalf of those persons, from whom, he had taken rights of films and the appellant paid the amount not reflected in his receipts, directly to the rightholders after taking his part of commission income. It was submitted that accordingly, the appellant accounted for only that part of commission income, on which he was liable to pay income tax. The A.O. however noted that the appellant subsequent to the aforesaid arrangement, should have deducted the TDS on the gross amount as per the provisions of section 194J and rejected the averments of the appellant, adding back the di ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... only produced samples that only indicate that the appellant is entitled to received 10% of commission on gross value of business generated by him. A general submission has been made to the effect that there is a diversion of income at source, but to prove the veracity of this claim, no documentary evidence was placed on record. The appellant has himself admitted that after receiving films from the exhibitors/onwards distributors, he incurred the said expense for the process of films and that the expenditure was incurred on behalf of exhibitors / onward distributors. Thus the entire amount either being paid or received by the appellant is of the character of contractual receipts between the film exhibitors/ distributors and the appellant and is therefore subject to TDS. Even otherwise, such payments are disallowable as per the provisions of section 40(a)(ia) of the Act if the conditions stipulated by the Act are not met. As observed earlier, the appellant has failed to adduce any documentary evidence to show that there is diversion of income. In such a situation, it is difficult to accept the proposition made by the AR of the appellant. Therefore, after consideration of the facts o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the total processional receipts as per TDS on ₹ 82.38 lakhs whereas the total commission was paid as the rate of ₹ 10% of ₹ 22,04,265/-. The ld. AR finally argued that the orders of authorities below be reversed as being incorrect and contrary to the facts and law and the appeal of the assessee be allowed. 7. On the other hand, the ld. DR strongly supported the orders of authorities below by submitting that the assessee has accounted for only ₹ 22,04,265/- in respect of ₹ 82.38 lakhs and therefore the books of account maintained by the assessee were rightly rejected by the AO and also justified the addition made of ₹ 60,33,737/- for non deduction of TDS u/s 40(a)(ia) of the Act. 8. We have carefully considered the rival contentions of the parties and perused the material placed before us including the orders of authorities below. We find that the assessee was acting as sole selling agent of M/s S S Films for which the assessee was given General Power Authority to carryout various works and duties like, marketing, sales and advertising etc of the films at the remuneration of 10% commission on the receipts collected from the parties on behal ..... X X X X Extracts X X X X X X X X Extracts X X X X
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