TMI Blog2020 (9) TMI 330X X X X Extracts X X X X X X X X Extracts X X X X ..... to make TDS. Therefore, the order passed by the AO is not erroneous and prejudicial to the interest of Revenue. - Decided in favour of assessee. - ITA No.155/CTK/2016 - - - Dated:- 7-9-2020 - Shri C.M. Garg, JM And Shri L.P. Sahu, AM For the Assessee : Shri Damodar Pati, Advocate For the Revenue : Shri M.K.Gautam,CIT DR ORDER PER L.P.SAHU, AM: The assessee has filed this appeal against the revisionary order passed u/s.263 of the Act by the Pr.CIT-2, Bhubaneswar, dated 21.03.2016 for the A.Y.2012-2013. 2. Earlier this appeal was disposed off by this Tribunal vide order dated 29.08.2017. Thereafter the assessee challenged the order of the Tribunal before the Hon ble jurisdictional High Court and the Hon ble High Court vide order dated 21.03.2018 passed in W.P.(C)No.22608 of 2017 set aside the order of the Tribunal to pass fresh order directing the assessee to file the documents as he wants. Accordingly, the appeal of the assessee restored to its original number and finally heard with the consent of both the parties. 3. The grounds of appeal raised by the assessee are as under :- 1. That the order passed by the Ld. below forum suffers the vice o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... efore, the disallowance of expenses of ₹ 7,42,150/- u/s.40(a)(ia) of the Act should have been made by the AO. The Pr.CIT also noted from the list of the incentives for SIM card and commission that there was a payment of more than ₹ 5000/- to the recipients, which comes under the provision of Section 194H of the Act for making deduction but the AO did not examine the issue, therefore, the Pr.CIT held that the order passed by the AO is erroneous and prejudicial to the interest of revenue. Accordingly, he directed the AO to make de novo assessment following the directions as given in the revisonal order. 7. Aggrieved by the order of Pr.CIT, the assessee filed an appeal before the Tribunal, wherein the Tribunal vide order dated 29.08.2017 considering the submissions of assessee and findings of the lower authorities, dismissed the appeal of the assessee holding therein that the assessee has challenged the disallowance of incentive and commission for SIM cards u/s.40(a)(ia) of the Act, which is not a subject matter of appeal before us and in the grounds of appeal the assessee has not challenged the order passed u/s.263 of the Act. The observation of the Tribunal at page ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... but the same was rejected and the matter was proceeded on merit. Mr. Pati, learned counsel for the petitioner prays that denial of adjournment that to on the first date to which the case was listed amounted to denial of an opportunity to the appellant to effectively present his case before the Tribunal as he wanted to produce some more documents. On perusal of the records produced as well as the orders impugned herein (Annexure-1), we are of the considered view that ends of justice would be best served, if the order of the Appellate Tribunal is set aside and the matter is remitted back to the Tribunal with a direction to fix a fresh date of hearing. This Court orders accordingly. The petitioner undertakes not to seek any further adjournment and to argue and proceed with the matter on the next date itself. No adjournment application on behalf of the petitioner-appellant shall be entertained. With such observation and direction, the writ application is allowed to the extent indicated hereinabove. The petitioner is directed to file a certified copy of this order before the Income Tax Appellate Tribunal for necessary compliance within a period of two weeks from today. In ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... i) Vodafone Essar Cellular Ltd. [2010] 194 Taxman 518 (Kerala) ii) Idea Cellular Ltd. [2010] 189 Taxman 118 (Delhi) 12. After hearing both the sides and perusing the entire material available on record and the orders of the authorities below, we noticed that the Pr.CIT has exercised his power u/s.263 of the Act and observed that the assessee did not deduct TDS on the payment of ₹ 7,42,150/- made to the retailers during the impugned assessment year u/s.194H of the Act. The AO had not deliberated this issue in his assessment order. The assessee has filed before us the copy of acknowledgement of return for the assessment year 2011-2012, computation of income, and copy of Form 26AS. It is clear from the computation of income filed by the assessee that the turnover made by him is ₹ 53,99,620.43 for the financial year 2010-2011. The AR of the assessee had also made submissions that the books of accounts of the assessee was not audited in the preceding financial year u/s.44AB of the Act, 1961. In this regard, ld.AR drew our attention to the provisions of Section 194H of the Act wherein the conditions have been stipulated for deducting TDS. The relevant provisions of S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... meaning assigned to it in clause (h) of section 2 of the Securities Contracts (Regulation) Act, 1956 (42 of 1956) ; (iv) where any income is credited to any account, whether called Suspense account or by any other name, in the books of account of the person liable to pay such income, such crediting shall be deemed to be credit of such income to the account of the payee and the provisions of this section shall apply accordingly. From the above Section it is clear that if the books of account was not audited u/s.44AB of the Act in the immediately preceding financial year then this provision will not applied in the current financial year in case of individual or HUF. From the computation of income filed by the assessee the turnover of the assessee is below ₹ 60 lakhs which was not required to be audited u/s.44AB of the Act. This fact has not been examined by any of the authorities below. Therefore, the assessee has not fulfilled the first condition and therefore, he is out of the purview of Section 194H of the Act for making deduction on payments made to the retailers as a commission or discount of more than ₹ 5000/-. The assessee is an Individual. The assessee ..... X X X X Extracts X X X X X X X X Extracts X X X X
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