TaxTMI 
TaxTMI 
2016 (5) TMI 876
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....Commissioner of Income Tax (Appeals) has erred on facts and in law in confirming the actions of the A.O. in levying interest U/s 201(1A) on the alleged non deduction of tax at source U/s 194H. 2. The ld. Commissioner of Income Tax (Appeals) has erred on facts and in law in confirming the demand of Rs. 400/- U/s 206C(6A) and Rs. 11/- U/s 206(7) on account of non collection of tax at source on sale of scrap." In other appeals of the assessee for A.Y. 2012-13 and 2013-14, similar identical grounds have been taken. Grounds of Revenue's appeal "Whether on facts and in law, Ld. CIT(A) erred in holding that the margin of distribution in the payments made by the assessee to its distributors is not commission liable for deduction u/s 194H of the Income-tax Act, 1961?" "Whether on the facts and in law, Ld CIT(A) erred in holding that the assessee was not liable to pay interest U/s 201(1A) of the Income Tax Act, 1961 as there was no tax liability on the income of the deductee." In other appeals of the revenue for A.Y. 2012-13 and 2013-14, similar identical grounds have been taken. 2. All the cross appeals filed by the assessees and revenue have been heard together and issue in....
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....fficer, the assessee carried the matter before the ld CIT(A), who had dismissed the appeal on this ground by observing that the assessee had made payment on account of purchase of milk to different milk societies and these milk societies subsequently made payments to the cattle owners from whom originally the milk was purchased and while making payment to such cattle owners these societies retained a fix percentage of amount from the total amount received from the assessee as their commission or brokerage. This issue has been considered by the ld CIT(A) in A.Y. 2008- 09 vide order dated 28/1/2013 wherein it has been held that this is a commission/brokerage and is liable to deduct TDS. Accordingly, he dismissed the assessee's appeal. 5. Now the assessee is in appeal before us. The ld AR of the assessee has submitted that the Hon'ble ITAT vide order dated 21/07/2015 has decided the assessee's case for A.Y. 2008-09 and in ITA No. 382/JP/2013 order dated 21/07/2015 by holding that the payment is not liable for deduction of tax U/s 194H of the Act. Inasmuch as the assessee society does not purchase milk from the cattle owners as mistakenly held by the Assessing Officer and thus the lia....
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....144/- U/s 206C(7) of the Act on account of non collection of tax at source on sale of scrap in A.Y. 2011-12, Rs. 2300/- U/s 206C(6A) and Rs. 643/- U/s 206C(7) of the Act in A.Y. 2012-13 and Rs. 2340/- U/s 206C(6A) and Rs. 394/- U/s 206C(7) of the Act in A.Y. 2013-14. The ld Assessing Officer observed that the assessee had made sales of scrap but no TCS has been deducted by the assessee. The ld Assessing Officer gave reasonable opportunity of being on this issue, which has been considered by considering the assessee's reply and held that the assessee has not deducted TDS on sale of scrap. The ld CIT(A) also confirmed the order of the ld Assessing Officer by observing that the assessee is liable to collect TDS on the sale of scrap U/s 206 of the Act. He considered the CBDT circular No. F.No. 275/86/2011-IT(B) dated 18/5/2012 and dismissed the assessee's appeal. 9. Now the assessee is in appeal before us. The ld AR of the assessee has submitted that in A.Y. 2007-08 to 2010-11, this issue has been considered by the Ld. Assessing Officer and ld CIT(A)and held that the assessee is liable for TCS U/s 206 of the Act. However, the Hon'ble ITAT vide order dated 04/3/2016 in ITA No. 82 to 86....
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....has not been transferred as the assessee is involved with the operation of the distributor. Cost of distribution is decided at taking into consideration of various costs on account of transportation and personnel to the distributor. Thereafter, the ld Assessing Officer considered the Hon'ble Supreme Court decision in the case of Kedarnath Jute Manufacturing Co. Ltd. Vs. CIT 82 ITR 363 on books of account. The case law referred by the revenue are also not squarely applicable. He relied on the following cases:- (i) Delhi Milk Scheme Vs. CIT (2008) 173 Taxman 54/301 ITR 373 (Delhi). (ii) Hindustan Coca Cola Beverages (P) Ltd. Vs. ITO (ITAT JP) 97 ITD 105. (iii) ACIT Vs Bharti Cellular Ltd. (Cal) 61 DTR 225. (iv) Vodafone Essar Cellular Ltd. Vs. ACIT (Ker) 332 ITR 255. (v) CIT Vs Idea Cellular Ltd. (Del) 325 ITR 148 (vi) ITO Vs Vodafone Essar Cellular Ltd. (ITAT Chennai) 141 TTJ 461. (vii) CIT Vs Singapore Airlines Ltd. (Del) 319 ITR 29 (viii) CIT Vs Director, Prasar Bharti (Ker) 325 ITR 205 (ix) ACIT Vs Edroos Syed Mohammed Zakir (ITAT Mumbai) 47 SOT 199. The alternate argument also not found convincing. The recipient of distributor had shown these alle....