TaxTMI 
TaxTMI 
2019 (11) TMI 336
X X X X Extracts X X X X
X X X X Extracts X X X X
....sessment Year 2009-10, ITA No. 9080/M/2010 vide order dated 20/2/2013. The Tribunal by an elaborate order has concluded that the TDS officer was incorrect in holding that tax was required to be deducted at 11.33%. The Tribunal concluded that the impugned payments made by the assessee to Matrix India on behalf of Ms. Katarina Kaif do not attract the provisions of section 19 4J. Accordingly the ground raised was allowed. We may refer to the concluding portion in the said order as under:- "18. In the light of the above legal scope we need to examine, if the services, the modeling, rendered by Ms. Katrina Kaif in this case constitutes professional service and the fee paid to her for modeling with the purpose of marketing of the camera products of the assessee constitutes FPS, notwithstanding the (act that she is otherwise an actor engaged in the production of a cinematographic film. The answer for this enquiry is found partly from the decision of this Tribunal given in the case of EMS (supra), Undisputedly, Ms. Katrina Kaif has received the said fee not in connection with production of a cinematographic film and the same received admittedly for modeling. She has not received the sum ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....er of the product or services. Therefore, the impugned payments made by the assessee to Matrix India on behalf of Ms Katrina Kaif do not attract the provisions of section 194J of the Act. Accordingly, the grounds raised are allowed." Respectfully following the aforesaid decision, we decide this issue in favour of the assessee. 5. One common issue raised in Revenue's appeal is that learned CIT(A) erred in giving relief to the assessee by holding that TDS is not deductible from payments made to custom house agents on account of reimbursement of clearing and forwarding. 6. Brief facts of the case are that during the previous years relevant to assessment years under consideration, the appellant had made payments to Custom House Agents (CHAs). The appellant is making two types of payments to CHAs i.e. i) clearing charges and ii) reimbursement of the expenditure incurred by CHAs on behalf of the appellant on account of Transportation charges. Crane/Forklift hire charges, Stamp Duty/Admin charges. Freight charges and Handling/storage charges. The appellant had deducted tax at source under section 194H of the Act in respect of payments to CHAs towards clearing charges treating the same....
X X X X Extracts X X X X
X X X X Extracts X X X X
....r tax deduction at source in AY 2007-08 and AY 2008^09. Therefore no further relief can be granted to the appellant at this stage: However, the AO shall be free to look into this aspect and re-compute the demand of tax and interest, if any in view of the decision of my Ld. Predecessor in AY 2009-10." Against this order revenue is in appeal before us. 8. Assessee for AY 07-08 has raised a cross appeal on this issue that Ld CIT (A) should have deleted the entire disallowance. 9. We have heard both the counsel and perused the records. We find that ITAT assessee's own case in ITA No. 568 for assessment year 2009 - 10 vide order dated 21/1/15 has dealt with the issue as under:- "24. We have considered the rival submissions as well as relevant material on record. There is no dispute that the assessee paid this amount to the agent for making the payment to third parties for various services availed by the assessee. It is also not disputed that if the payment is directly made by the assessee to the third party in respect of the services provided to the assessee, the same attracts the TDS under the provisions of chapter XVII of the Income Tax Act. The Assessing Officer has recorded ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....this regard it is the submission of the learned counsel of the assessee that the said order is erroneous. Without prejudice it has been contended that assessee cannot be considered to be in default with regard to those clearing house agents who are assessee's on record, and have filed return of income under section 139 and who have taken into account the sum paid by Kodak and have also paid the tax on the income declared by it. It has been submitted that the proviso below section 201 (1) inserted as an amendment by the finance act 2012 with effect from 1st July 2 012 is retrospective in nature. Reliance in this regard is placed on ACIT v/s Bharti Airtel, 42 ITR trib 469, Mahindra Navistar Automatics Ltd v/s DCIT, 159 ITD 123, Gujarat Pipavav port Ltd versus DCIT 149 ITD 23. It has been submitted that this issue was not before ITAT in assessment year 2009-10. Hence it is claimed that to this extent ITATs earlier order cannot be said to have covered this issue upon careful consideration, we find that the aforesaid co- ordinate bench order in assessee's own case on the same issue on similar facts has to be followed on the doctrine of stare decisis. However, the without prejudice subm....
X X X X Extracts X X X X
X X X X Extracts X X X X
....abor and raw material which is supplied under the tripartite agreement. Therefore, the nomenclature of the agreement becomes irrelevant when the intention of the parties presents a different picture as per the various terms and conditions of the agreement. The CJT(A] has assumed a wrong fact by recording the tripartite agreement as- an agreement for tools and moulds but it was actually an agreement for job work of Camera parts by supplier for use of assembling the camera by Hical Magnetic Pvt. Ltd. Therefore, it was not an agreement for tools and moulds but is an agreement for supply of Camera parts by various suppliers to Hical Magnetic JM. Ltd. The Camera parts are manufactured as per the tools and moulds provided by the assesses thus the raw material is supplied to the Hical Magnetic Pvt Ltd. by the assessee through the suppliers under the tripartite agreement. The assessee has provided the working capital to Hical Magnetic Pvt. Ltd. for purchase of raw material /camera parts from suppliers and also for labour cost. This arrangement shows that the raw material is provided by the assesses to Hical Magnetic Pvt. Ltd. through these suppliers and the payment is made by providing w....