2018 (10) TMI 289 - AT - Income Tax

Tribunal allows Revenue's appeal delay, overturns disallowance under section 40(a)(ia), rejects challenge.

The Assistant Commissioner of Income-tax, Circle-1, Kottayam Versus Smt. Biji Suresh And Vice-Versa

The Tribunal condoned the delay in filing the Revenue's appeal due to administrative exigencies and admitted it for adjudication. The disallowance under ... TDS u/s. 194G - non deduction of tds on commission paid to sub-agents - sale of lottery tickets through sub-agents - Held that:- The assessee is not giving any commission to the sub agents as there is a sale being effected between the assessee and the sub agents and the assessee after transferring the lottery tickets to the sub agents has no control over the same. It is not a case where the assessee is giving any remuneration or prize to the sub agents, in as much as the value of prize winning lottery tickets is claimed from the government agency supplying the lottery tickets to the assessee. The government agency after deduction of TDS credits the value to the account of the assessee who, thereafter, passes on the same to the sub agents. In the facts of the present case we find that the application of section 194G/194H of the Act was not warranted. While delivering the decision of the Tribunal, the Tribunal took note of the binding decision of the Jurisdictional High Court in the case of M.S. Hameed and Ors. Vs. Director of State Lotteries [2000 (11) TMI 63 - KERALA HIGH COURT] wherein it was held that the assessee is not liable to deduct TDS under section 194G, no disallowance under section 40(a)(ia) is called for. - Decided in favour of the assessee. Issues:1. Condonation of delay in filing the appeal by the Revenue before the Tribunal.2. Disallowance of amount under section 40(a)(ia) of the Act for failure to deduct tax on commission paid to subagents.3. Interpretation of provisions of section 194G of the Act and its applicability to payments made to sub-agents.4. Application of section 40(a)(ia) of the Act in cases where tax is deductible at source under Chapter XVII-B.Analysis:1. The judgment involves a case where the Revenue filed an appeal with a delay of 16 days before the Tribunal. The delay was attributed to administrative exigencies, including the officer being on election duty and subsequent transfer. The Tribunal, after hearing both parties, found good and sufficient cause for condoning the delay and admitted the appeal for adjudication.2. The Assessing Officer disallowed an amount under section 40(a)(ia) of the Act due to the failure of the assessee to deduct tax under section 194G on commission paid to subagents. On appeal, the CIT(A) allowed the appeal based on a previous decision of the ITAT, Cochin Bench, stating that section 194G was not applicable to payments made to sub-agents by the assessee.3. The Revenue challenged the CIT(A)'s decision, arguing that the facts of the case differed from the precedent cited. They contended that section 194G should apply where commission or remuneration has been paid, relying on relevant judgments and the interpretation of section 40(a)(ia) of the Act. However, the Tribunal, considering the previous decision and the binding judgment of the Jurisdictional High Court, decided in favor of the assessee, concluding that section 194G did not apply in the present case.4. As a result of the decision in favor of the assessee, the Cross Objection filed by the assessee became infructuous and was dismissed. The appeal filed by the Revenue was also dismissed. The Tribunal pronounced the order on October 3, 2018, concluding the case.