TaxTMI 
TaxTMI 
2012 (9) TMI 366
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.... [3] That the Ld. CIT(A) has erred both in law and on facts in confirming the addition of Rs..16,01,970/- made by the LAO as additional income, being the difference of amount as per TDS certificates issued by M/s. Amadeus India (P) Ltd., M/s. Interglobe Technology Quotient (P) Ltd. & M/s. United Airlines Inc. and amount credited in the P & L A/c as received/accrued on behalf of the consortium members. [3.l] That the lower authorities in respect of the impugned addition have failed to consider and appreciate the method of accounting employed that the amount credited in the P & L A/c represent amounts belonging to various travel agents and received by the appellant as the lead agent for distribution to the various travel agencies, constituting a consortium. [3.2] That the lower authorities in respect of the impugned addition have failed to consider and appreciate that the appellant out of the total credit of Rs..1,35,49,683/- in the P & L A/c has transferred a sum of Rs..1,21,84,199/- to the account of the respective consortium members by debiting under the head "direct expenses" in the P & L A/c, retaining a sum of Rs..13,65,484/- to meet out the expenses. [3.3] That the lo....
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....as per relevant orders are that return declaring income of Rs.2,16,880/- [as against claim of loss of Rs.9,09,780/- ) filed on 29.09.2008 by the assessee, engaged in the business of travel agents, after being processed on 31.03.2009 u/s 143(1) of the Income-tax Act, 1961(hereinafter referred to as the Act), was selected for scrutiny with the service of a notice u/s 143(2) of the Act, issued on 14.09.2009. During the course of assessment proceedings, the Assessing Officer (A.O. in short) noticed that the assessee reflected direct & indirect income in the P/L a/c comprising Direct Income [In Rs. ] segment fees Rs.1,16,34,259/- commission from Amedeus and Gelielo Rs.8,99,872/- United Airline PLB income Rs.5,23,797/- income from GTA Rs.2,70,637/- Tour Package Rs.1,94,091/- ISV Membership fee Rs.20,027/- Total Rs.1,35,49,683/-, "Indirect Income" Interest on deposit Rs. 2,99,156/- ISV Membership Rs. 2,16,697/- Other income Rs.10,86,646/- Rs.16,02,499/ while TDS certificates annexed to the return reflected following amount of commission/brokerage :- S.No. Name of deductor Amount in (Rs.) 1. United Airlines....
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....basis of these TDS certificates only. Hence without any doubt it is the income of the appellant and not of 13 travel agents. 8.2 The appellant (as per agreement with 13 travel agents) retains the amount towards meeting its administration and other expenses and distribute the commission to the 13 travel agents. In term of agreement pays the commission to 13 travel agents on the basis of busiiness procured etc. (refer clause 1 of the agreement). As per clause (2) of the agreement between appellant and 13 travel agents is also very clear that the appellant has full right on the commission so received from "Amedeus" in its own name. Further as per clause (6) no member of the 13 travel agent shall have the right or claim on the TDS deduction by "Amadeus India (P) Ltd". This makes it very clear that the "commission" on which, TDS is deducted belongs to the appellant and to no other entity and pursuant to an agreement (refer clause 1) the appellant has to pass on this commission to 13 travel agents. 8.3 Hence, I hold that AO's action is treating the income on the basis of TDS certificates and parting further with the commission with 13 travel agents (pursuance to any agreement....
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.... of any submissions by the appellant in spite of opportunities given and further relying on the decision in the case of : a) Poddar son's Ex. L. (P) Ltd Vs ITO, Ward-7(2), Kolkata (ITA No. 1418/Kol/2009) {Assessment Year 2005-2006} b)Soma- TRG Joint Venture Jammu Vs ITO, Ward-1(3}, Jammu (ITA No. 477 (ASR}/2008) (Assessment Year 2005- 2006) and (ITA No. 367(ASR)/2009) (Assessment Year 2006-2007) I respectfully disagree with the decision of my predecessor given for Assessment Year 2006-2007 in appellant's case, and I uphold that AO is right in disallowing under Section 40{a)(ia) the commission/fee paid of Rs..l,21,84,199 without deduction of tax at source. 4. The assessee is now in appeal before us against the aforesaid findings of the ld.CIT(A). At the outset, both the parties agreed that the main issue is squarely covered by the decision dated 18.5.2012 of the ITAT in the assessee's own case in I.T.A. no.3526/Del./2010 in the AY 2006-07. To a query by the Bench, the ld. AR replied that the assessee could not appear before the ld. CIT(A), since notices issued by him were not served on the assessee. 5. We have heard both the parties and gone through the facts of the case....
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....ke collections and distribute the monies to each of the Consortium Travel Agents in proportion to the segment bookings effected by each of the travel agents. The travel agents agreed to proportionately contribute towards the expenditure of the assessee while the assessee was authorised to retain the money out of the revenues of the consortium travel agents collected from Amadeus .Inter alia, it was agreed that if the Amadeus India Pvt. Ltd. deducted Income tax at source in respect of payments made to the assessee in the representative capacity out of income of the consortium travel agents, then the credit for such tax deducted at source shall be claimed by the assessee alone in its return of income, and no other member would have any right or claim on such amount. In the event of any loss or damage on account of any breach in the stipulation of the agreement , all the members were jointly & severally liable. In terms of the said agreement, the lead member i.e., the assessee is required to collect the commission for services rendered by other members and distribute the said commission amongst the members on priority basis. Though the TDS certificate issued by Amadeus reflected commi....