TMI Blog2019 (12) TMI 610X X X X Extracts X X X X X X X X Extracts X X X X ..... mount paid by the assesee to stockists is not in the nature of commission, which is liable for TDS u/s 194H. CIT(A) after considering relevant submissions of the assesee has rightly deleted additions made by the AO toward short deduction of TDS u/s 201(1) and consequent interest u/s 201(1A) . We do not find any error in findings of the Ld.CIT (A) and hence, we are inclined to uphold the findings of Ld.CIT(A) and dismissed appeal filed by the revenue. - ITA No.3938/Mum/2018, C.O. No. 201/Mum/2019 (Assessment Year: 2012-13) - - - Dated:- 27-11-2019 - SHRI C.N. PRASAD, JUDICIAL MEMBER AND SHRI G. MANJUNATHA, ACCOUNTANT MEMBER Revenue by Shri. Kumar Padmapani Bora, DR Assessee by Shri. Kirit Kumar, AR ORDER PER G ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... services rendered or for any services in the course of buying and selling of goods within the meaning of section 194H of the Act? 4. Whether in the facts and circumstances of the case the precedence given to the mode and manner of transaction over legislative intent which apparently intended to apply IDS under section 194H on consideration under whatever, name , allowed or paid in an alternative manner in lie of services rendered by the agent to the principal is justified? 4. The appellant craves leave to amend or alter any ground or add a new ground or add a new ground which may be necessary. 3. The brief facts of the case are that the assesee is engaged in the business of trading, manufacture of drugs, pharmaceuticals ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1A) on said short deduction of TDS. 4. Aggrieved by the assessment order, the assesee preferred an appeal before the Ld.CIT(A). Before the Ld.CIT(A), the assesee has filed a elaborate written submissions on the issue, which has been reproduced in page No. 3 to 9 of Ld.CIT(A) order. The Ld.CIT(A), after considering relevant submissions of the assesee and also, by following the decision of Hon ble Bombay High Court in the case of M/s Interwork India Pvt.Ltd. in ITA No. 161/Mum/2011, order dated 01/04/2014 held that the transactions between the assesee and stockiest is in the nature of sale, because the assesee has raised invoices, which includes excise duty and sales tax payable on goods, as in case of normal sale of goods. Therefore, he o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Court In the case of M/s. Intervet India Pvt.Ltd. in ITA.No.. 161 of 2011 dated 1st April, 2014. b. Hon'ble ITAT (Mumbai) in the cases of M/s. Piramal Health care Ltd. in its order in ITA No, 7789 to 7792 7794/Mum/2011 dated 09,05.2012 for a.Yrs. 2007-08 to 201 1-12. C. ITO(TDS) vs. Unichem laboratories Ltd. (46 CCH 525)(Mum ITAT) In view of the aforesaid discussion, facts of the case, appellate order passed by me predecessor in assessee's own case for A, Y. 2010-11 S 2011-12 and relying on the decision of Hon'ble Bombay High Court as well as decisions of the Hon'ble lTAT cited above, I am of the considered opinion, that the transaction between the appellant and the stockiest amounts to sale. The provisi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s been computed from 1 April 2011 without appreciating the fact that the sales made through the stockiest were spread out throughout the year and accordingly, the interest should not be computed from the first day of the financial year. DECISION Since the appellant has not been treated as the deemed defaulter u/s 201{1) as held by me earlier in the order, the question of levying interest u/s 201(1) of the Act is consequential in nature and hence Js also deleted. in total the appeal is allowed 5. The Ld. DR submitted that the Ld.CIT(A) was erred in deciding the issue u/s 194J, whereas the Ld. AO has passed order considering commission payment u/s 194H of the Act, 1961. The Ld. DR, further submitted that the Ld.CIT(A) has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tionship and consequently, the requirement of deduction of tax at source u/s 194H of the I.T. Act, 1961, does not arise. We further noted that the assesee has filed complete details before the Ld.CIT(A), including agreement between the parties, as per which the modus operandi of the assesses to sale of goods has been explained, as per which the assesee sales goods to stockiest and raises invoices and collets applicable excise duty and VAT. Further, the title in the goods is transferred to the stockiest, at the time of delivery. Therefore, we are of the considered view that the arrangements between the assesee and the stockiest for sale of goods is in the nature of principal to principal basis, but not in the nature of principal to agent and ..... X X X X Extracts X X X X X X X X Extracts X X X X
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