TaxTMI 
TaxTMI 
2026 (8) TMI 286
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....ess depreciation i.e., @ 60% instead of 25% claimed by the assessee on website development cost even when higher appellate authority had allowed depreciation @ 25% on website development cost in earlier year in the assessee's own case? 2. Whether on facts and in circumstances of the case, the Ld. CIT(A) is legally justified in deleting disallowance of Rs. 29,33,23,694/- u/s 40(a)(ia) of the Act by holding that the assessee was not under any obligation to deduct tax u/s 194H of the Income Tax Act, 1961 on the payment of gateway charges made to Banks during the year without giving any clear findings in this regard? 3. Whether on facts and in circumstances of the case, Ld. CIT(A) is legally justified in deleting the disallowance of Rs. 23,09,53,687/- on account of expenditure on advertisement, marketing and publicity (AMP) by ignoring the findings of fact recorded by the Assessing Officer (the AO) that the expenditure was incurred to generate intangibles by way of building and promoting brand 'MakeMyTrip'? 4. Whether on facts and in circumstances of the case, Ld. CIT(A) is legally justified in deleting disallowance of Rs. 79,32,20,107/- u/s 40(a)....
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.... the Tribunal. 4. At the outset, before us, the Ld. AR has submitted that all the issues raised by the Revenue are legacy issues and stand covered in assessee's favour by the orders of the coordinate benches in earlier years. Ground no. 1: Disallowance of Depreciation) Rs. 70,47,390/-) 4. Brief facts are that the assessee had claimed depreciation on website development cost at 60%. The AO has allowed the depreciation at 25% resulting in disallowance of Rs. 70,47,390/-. Following the orders of the coordinate benches in assessee's own case for earlier years as well as of the jurisdictional High Court in the case of DCIT vs. Amway India Enterprises [2012] 346 ITR 341 (Del), the CIT(A) has allowed the appeal of the assessee. Aggrieved, the Revenue is in appeal before us. 4.1 We have heard the rival submissions and perused the material on record, as well as the order of the coordinate bench for A.Y. 2005-06. We are of the considered view that the Ld. CIT(A) has rightly allowed the assessee's claim of depreciation by holding as under: "3.2 I have carefully considered the assessment order and the submissions of appellant on this issue. It has been submitted by appella....
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....39;commission' or 'brokerage' and thus no TDS was deductible from the said charges under Section 194 H of the Act. In coming to the said conclusion, the ITAT relied on the judgment of this Court in Commissioner of Income Tax v JDS Apparels (P) Ltd. (2015) 370 ITR 454 (Del). 8. Ms. Vibhooti Malhotra, learned counsel for the Revenue, sought to distinguish the said judgment in Commissioner of Income Tax v JDS Apparels (P) Ltd. (supra) by pointing out that the Bank in question in that case had provided a swiping machine. When a credit card was swiped on it, the customer, whose credit card was used, got access to the internet gateway of the acquiring bank resulting in the realisation of payment. Subsequently, the acquiring bank realized and recovered payment from the bank which had issued the credit card. It is submitted that in the present case the transaction is virtual and the products are sold through website operated by the Assessee. The customer logs on to the website which uses the various products displayed at the website and once he makes a transaction, payment is made using the facility of 'internet payment gateway'. The customer is directed to a s....
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...., nature, quantum etc. of the goods bought/sold. The bank merely provides banking services in the form of payment and subsequently collects the payment. The amount punched in the swiping machine is credited to the account of the retailer by the acquiring bank, i.e. HDFC in this case, after retaining a small portion of the same as their charges. The banking services cannot be covered and treated as services rendered by an agent for the principal during the course of buying or selling of goods as the banker does not render any service in the nature of agency. " 10. Further, the Central Government, by notification dated 31 December, 2012 has notified that no TDS shall be made on the following payments to the banks listed in the Second Schedule to the Reserve Bank of India Act: (i) bank guarantee commission; (ii) cash management service charges, (iii) depository charges on maintenance of DEMAT accounts; (iv) charges for warehousing services for commodities; (v) underwriting service charges; (vi) clearing charges (MICR charges), (vii) credit card or debit card commission for transaction between the merchant establis....
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....ssee from A.Y. 2010-11 to 2016-11 and the TPO has not considered the same as an international transaction:- Assessment Year AMP Expenses Whether it was considered international transaction by TPO 2010-11 461,907,373 No 2011-12 577,466,197 No 2012-13 807,126,413 No 2013-14 604,210,658 No 2014-15 811,585,225 No 2015-16 690,400,000 No 2016-17 4,741,800,000 No 16. So far as the ground the ground raised by the Revenue relating to acceptance of additional evidence is concerned, we find that the Ld. CIT(A), in the instant case, has called for a remand report from the and, thereafter, only has admitted the same and has given his finding on the basis of such additional evidence. The Hon'ble Delhi High Court in the case of Virgin Securities and Credits P. Ltd. (supra) has held that when the additional evidence was crucial to the disposal of the appeal and had a direct bearing on the quantum of the claim made by the assessee, Rule 46A of IT Rules, 1962 permits the CIT(A) to admit the additional evidence if he finds that the same is crucial for the disposal of the appeal. The various other decisions relied on ....
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.... Ltd. vs. CIT (1980) 17 CTR (SC) 113: (1980) 124 ITR 1 (SC) wherein the Supreme Court held that there could be cases where the expenditure even if it was incurred for obtaining of a benefit of an enduring nature may, nevertheless, be on the revenue account and, in such cases, the test of "enduring benefit" may breakdown." 18. We find the Hon'ble Delhi High Court in the case of Jubilant Foodwork Pvt. Ltd. (supra) has held that the expenditure incurred by the assessee on advertisement expenses is revenue in nature since no permanent character or advantage is achieved via the same and such expenses for advertising consumer products generally are a part of the process of profit earning and not in the nature of capital outlay. Similar view has been taken by the Hon'ble Delhi High Court in the case of CIT vs. Monto Motors Ltd. (supra). 19. In view of the above discussion and in view of the detailed order passed by the CIT(A) on this issue and considering the fact that the Revenue in assessee's own case for AY 2010-11 onwards has not considered such AMP expenses as international transaction, therefore, we do not find any infirmity in the order of the CIT(A) i....