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TMI Blog2015 (7) TMI 1292X X X X Extracts X X X X X X X X Extracts X X X X ..... sallowance of deduction of commission payment for non deduction of TDS u/s. 194H of the Act thereby invoking the provision of section 40(a)(ia). For this the assessee has raised the following additional ground:- "1. For that on the facts of the case, the Ld. CIT(A) was wrong in confirming the disallowance u/s. 40(a)(ia) of the I.T. Act amounting to Rs. 14,21,729/- wherein the appellant company has paid the T.D.S. before filing of the Return u/s. 139(1), therefore, the disallowance amounting to Rs. 14,21,729/- should be directed to be deleted." 3. Briefly stated facts are that the assessee during the relevant financial year 2008-09 relevant to this assessment year 2009-10 paid commission to various parties and deducted TDS but paid TDS af ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in favour of assessee and against the revenue by the decision of the Hon'ble Jurisdictional High Court in the case of CIT v. Virgin Creations in ITAT No. 302 of 2011, GA No. 3200/2011 dated 23rd November, 2011 in view of the similar facts of the case wherein it has been held as under:- "The learned Tribunal on fact found that the assessee had deducted tax at source from the paid charges between the period April 1, 2005 and April 28, 2006 and the same were paid by the assessee in July and August 2006, i.e. well before the due date of filing of the return of income for the year under consideration. This factual position was undisputed. Moreover, the Supreme Court, as has been recorded by the learned Tribunal, in the case of Allied Mot ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Commissioner of Income Tax (Appeals) erred both in law and in fact by treating the amount of incentive including incidental charges which includes T.A. etc. for collection of outstanding bills from different persons as commission, hence T.D.S. u/s. 194H should have been deducted without any basis and/or sanction of law." 6. Briefly stated facts are that the assessee company is engaged in rendering several commercial services like collecting dues from market on behalf of principal company maintaining office staff of the principal company in lieu of commission and incentive. Generally the commission was paid for rendering services but the facilities are extended in a particular area but to render services in remote areas for few collection ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... audit report this amount has been shown under one head i.e. commission and incentive. Therefore, I find that AO's action of making disallowances of Rs. 48,37,898/- u/s. 40(a)(ia) for non-deduction of TDS is justified. Hence, appeal on this ground is dismissed." Aggrieved assessee preferred second appeal before Tribunal. 7. We have heard the rival contentions and gone through the facts and circumstances of the case. Before us the assessee contended that during the year commission was paid to the parties and incentive was also paid to several persons, who physically collect the money from different places as per the direction of the team employed. According to the assessee, this is not commission but incentive on collection of money fro ..... X X X X Extracts X X X X X X X X Extracts X X X X
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