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TMI Blog2020 (9) TMI 330X X X X Extracts X X X X X X X X Extracts X X X X ..... 2. That the disallowance of Rs. 7,42,150/- paid towards incentive and commission and incentive for SIM u/s.40(a)(ia) of I.T.Act is illegal and arbitrary. 3. That the other grounds if any shall be urged in the time of hearing. 4. Subsequently, the assessee has also filed additional grounds of appeal vide letter dated 06.03.2020, which read as under :- "(i) That in the facts and circumstances of the case the order dtd.21.03.2016 passed u/s.263 of the IT Act by the Principal Chief Commissioner of Income Tax-II, Odisha is illegal and arbitrary. (ii) That in the facts and circumstances of the case the order dtd.21.03.2016 is perverse because of non consideration of the material facts." 5. Brief facts of the case are that the assessee is in the business of whole sale distribution of SIM card and filed the return of income electronically on 24.03.2014 for the assessment year under consideration declaring total income of Rs. 6,04,803/-. Subsequently the case was selected for scrutiny and statutory notices u/s.143(2) & 142(1) of the Act were issued and served upon the assessee on 04.09.2014. Thereafter the AO completed the assessment by making following additions :- Total income ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... T is bad in law and does not satisfy twin conditions. Therefore, considering the facts and the findings and the submissions of ld. DR, we found that there is strength in the arguments of ld. DR that the assessee has challenged the addition which is consequential to the order passed u/s.263 of the Act and not on the main issue of how the revision proceedings are bad in law. Hence, we are not inclined to interfere with the order of ld. CIT who has considered the findings of AO and submissions of the assessee and passed a speaking order in accordance with law and accordingly, the grounds of appeal of the assessee are dismissed." 8. Being aggrieved with the above order, the assessee approached before the Hon'ble Jurisdictional High Court and the Hon'ble High Court vide order dated 21.03.2018 in W.P.(C) No.22608 of 2017 has set aside the order of the Tribunal in the following manner :- W.P.(C) No.22608 of 2017 21.03.2018 Heard Mr. Pati, learned counsel for the petitioner and Mr. Satpathy, learned Senior Standing Counsel for the Revenue. Pursuant to order of this Court dated 05.02.2018, Mr. Satpathy, learned Senior Standing Counsel has produced the file of the Tribunal for our peru ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted on proper application. 9. Now, the appeal is being fixed for fresh hearing before us and the ld. AR argued only on the legal grounds raised in the form of additional grounds filed by the assessee vide letter dated 06.03.2020 as already reproduced above. 10. The ld. AR submitted that the incentive and commission on SIM cards does not come under the purview of the TDS provision u/s.194H of the Act, which is not a commission and the same is a discount which are given to the retailers in the ordinary course of business at the time of purchase by them and discount is never treated as a commission. It is the nomenclature which has been used for debiting the expenses in the account books. He also submitted that the books of accounts of the assessee was not audited in the preceding financial year i.e.F.Y.2010-2011. Before us, ld. AR also filed copy of computation of income and copy of acknowledgement of Income Tax Return. In support of his arguments, he relied on the following judgments :- i) CIT Vs. Singapore Airlines Ltd. [2009] 180 Taxman 128 (Delhi); ii) Ahmedabad Stamp Vendors Association [2002] 124 Taxman 628 (Gujarat); iii) CIT Vs. tendon & Mahendra [2014] 45 taxmann.com ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... earlier, deduct income-tax thereon at the rate of five per cent : Provided that no deduction shall be made under this section in a case where the amount of such income or, as the case may be, the aggregate of the amounts of such income credited or paid or likely to be credited or paid during the financial year to the account of, or to, the payee, does not exceed fifteen thousand rupees : Provided further that an individual or a Hindu undivided family, whose total sales, gross receipts or turnover from the business or profession carried on by him exceed the monetary limits specified under clause (a) or clause (b) of section 44AB during the financial year immediately preceding the financial year in which such commission or brokerage is credited or paid, shall be liable to deduct income-tax under this section: Provided also that no deduction shall be made under this section on any commission or brokerage payable by Bharat Sanchar Nigam Limited or Mahanagar Telephone Nigam Limited to their public call office franchisees. Explanation.-For the purposes of this section,- (i) "commission or brokerage" includes any payment received or receivable, directly or indirectly, by a pers ..... X X X X Extracts X X X X X X X X Extracts X X X X
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