TaxTMI 
TaxTMI 
2015 (10) TMI 2176
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....espect to the query of non deduction of tax at source, the assessee furnished sample copies of TDS certificate issued by TSPs, while deducting TDS u/s 194J on payments made to the assessee. The ld. counsel further contended that with respect to incurring of expenditure on brand promotion was also answered in the note and further the income declared by the assessee as well as of the amount of the expenditure are part of the audited accounts. The ld. counsel alleged that during the hearing held on 06/02/2015, 31/03/2015, no indication was given with respect to nonsatisfactory reply of the assessee. The ld. counsel also invited our attention to the finding recorded in paragraph 2.6 with regard to non-production of documents. Another argument advanced by ld. counsel is omission to consider the decision of the Delhi Bench of the Tribunal in the case of SRL Ranbaxy Ltd. vs Addl.CIT (2011) 16 taxman.com 343 (Del.) and the decision in CIT vs Quatar Airways 332 ITR 25 (Bom.). The crux of argument is that the order of remand to the Assessing Officer is based on misconception. 2.1. On the other hand, the ld. DR, Shri Arvind Kumar, strongly defended the conclusion arrived at in the impugned....
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....n the order of the ld. Commissioner of Income Tax (Appeals), it has not been explained with respect to logistic materials, promotional materials whether given without any charge (free of charge) to the business associates (aggregator and/or service provider) for which the assessee is claiming expenditure under which head and also whether the assessee is charging from such business associates for such material. It was also not explained in the impugned order whether the assessee is claiming any damages as expenditure and also charging the same from service provider/aggregators. It was also not clear whether the amount of courier charges is claimed as expenditure and also whether it is also received/recovered back from such business associates and debit note is issued to them. It is the duty of the assessee to ensure whether TDS has been deducted by the assessee and also the business associates (aggregator and/or service providers) as per section 194J of the Act as there are no walking patients/clients of the assessee and the whole turnover is due to/through so called contractors/business associates (service provider or aggregators) It is also not clear from the order of the ld. Comm....
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....of facts. The Hon'ble Punjab & Haryana High Court in Popular Engineering Company vs ITAT 248 ITR 577, even went to the extent that absence of adequate reasons and possibility of different opinion are not the valid grounds for entertaining the application u/s 254(2) of the Act. Thus, from this angle also, we find no merit in the applications of the assessee. 2.7. So far as, the reliance upon the decision on the Delhi Bench of the Tribunal in SRL Ranbaxy Ltd. vs Addl. CIT (2011) 16 taxman.com 343 is concerned, we are of the considered opinion that the facts of the present assessee are different from SRL Ranbaxy Ltd. because as per the terms and conditions of the agreement of the assessee with its aggregators/service providers, necessarily, such sample has to be through Thyrocare only and not from any other laboratory, therefore, reliance upon this decision is clearly misconceived. So far as, the decision from Hon'ble Allahabad High Court to the effect that onus is on the Revenue to demonstrate that the taxes has not been recovered from the person who had the primary liability to pay tax, is concerned, we find that this decision is not applicable to the facts of the present appeal,....
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....ed the statement tendered by Shri Sachin Salvi, which clearly demonstrate that TSPs are authorized to collect specimens from the patients and they are bound to send to the laboratory/assessee for processing. The security deposit is taken from them against the credit limit given to them against the billing and the TSPs are sending the specimen to the assessee for which they are billed as per agreed B2B rates and against which the payments are received from them. The reply to question number eleven, there is a clear statement that TSPs are restricted from forwarding samples to any other competitor laboratory for the reason that the patients who are going to the respective TSPs for getting the Thyrocare test done on the understanding that the TSPs are authorized Thyrocare service provider shall get reports or shall get their specimen processed from TTL (the assessee) only for which they have been referred by the respective doctors. We have also perused the statement of Shri Sundar Raju, Executive Director of the assessee company, who was examined on oath which has also been examined by us, while passing the order dated 31/03/2015. Thus, the totality of facts clearly indicates that the....