2015 (8) TMI 1296 - AT - Income Tax

Revision u/s 263 - tds non deductibility - inadequate v/s no inquiry - whether the arrangement between Appellant and the pre-paid distributors during the subject FY was on a principal to agent basis and the Appellant had duly deducted tax u/s 194H of the Act on the commission paid to the pre-paid distributors? - Held that - It would be a case of splitting of hair if we try to distinguish between the expression verified used in the notice and dealt with used in the revisionary order. The basic meaning of both the expressions is same and means that issue has not been examined by the Assessing Officer. No doubt it has been mentioned that it was noticed that person responsible of the assessee has not deducted the tax at source from the payments made towards commission/incentive on prepaid cards u/s 194H of the Act. It is not clear whether this observation is made with reference to the survey proceedings or proceedings u/s 201. However, the careful reading of the whole order clearly shows that no question has been asked with respect to non-deduction of tax on commission/incentive on prepaid cards. No reply seems to have been given. Assuming for arguments sake, that it is not necessary to mention everything in the order but nothing has been field before us to show that relevant question on this issue was asked by the Assessing Officer and replied were also given. Therefore, it is a clear case of non-enquiry in respect of this issue. The Ld. CIT-DR has correctly submitted that Assessing Officer has merely set up a preamble on this issue in the first para but has not made any enquiry in this respect. In this regard we may mention that mere non enquiry would also render a particular order passed by lower authority as erroneous and prejudicial to the interest of Revenue. No doubt that Hon ble Supreme Court in the case of Malabar Industrial Co. Ltd. (2000 (2) TMI 10 - SUPREME Court ) has held that if Assessing Officer has taken a particular view which is legally possible then such order cannot be held to be erroneous and prejudicial to the interest of Revenue. However, as we have seen above, this is a case of non-enquiry and, therefore, it cannot be said that Assessing Officer has taken a particular view.. In view of the above discussion, we uphold the revisionary order passed u/s 263 by Ld. Commissioner. - Decided against assessee

Issues Involved:
1. Legality and jurisdiction of the notice issued under section 263 of the Income Tax Act, 1961.
2. Assumption of jurisdiction under section 263 based on the letter from ACIT (TDS) and lack of independent satisfaction by CIT (TDS).
3. Enhancement of time limitation under section 201(3) by CIT (TDS).
4. Determination of whether the order by ACIT (TDS) was erroneous and prejudicial to the interest of revenue.
5. Applicability of TDS under section 194H on discount/commission paid to pre-paid distributors.
6. Compliance with principles of natural justice and procedural requirements under section 263.
7. Examination of whether the CIT (TDS) has traveled beyond the issues raised in the notice.
8. Validity of the Commissioner's order based on existing legal precedents.

Issue-wise Detailed Analysis:

1. Legality and Jurisdiction of the Notice Issued Under Section 263:
The assessee contended that the notice issued under section 263 by CIT (TDS) was illegal, bad in law, and without jurisdiction. However, the Tribunal held that there is no requirement for giving any notice before assuming jurisdiction under section 263. This position was supported by the Supreme Court in CIT v. Electro House, clarifying that the Commissioner is not required to issue a notice before commencing the inquiry under section 263. The only requirement is to provide the assessee with an opportunity of being heard before passing the final order.

2. Assumption of Jurisdiction Under Section 263 Based on the Letter from ACIT (TDS):
The assessee argued that the revisionary proceedings under section 263 were initiated merely based on a letter from ACIT (TDS) without independent satisfaction by CIT (TDS). The Tribunal found that the Commissioner had applied his mind to the material placed before him and approved the proposal for revision on 26.4.2012. The notice, although dated 23.4.2012, was dispatched only after obtaining the Commissioner's approval, and the assessee was provided with an opportunity to be heard.

3. Enhancement of Time Limitation Under Section 201(3) by CIT (TDS):
The assessee claimed that the CIT (TDS) effectively enhanced the time limitation prescribed under section 201(3) for completion of 201 proceedings by a TDS officer. The Tribunal did not find merit in this argument as the revisionary powers under section 263 are of wide amplitude, and the Commissioner is empowered to revise orders that are erroneous and prejudicial to the interest of revenue.

4. Determination of Whether the Order by ACIT (TDS) Was Erroneous and Prejudicial to the Interest of Revenue:
The Tribunal upheld the Commissioner's finding that the order passed by ACIT (TDS) was erroneous and prejudicial to the interest of revenue. The ACIT (TDS) had omitted to deal with the issue of TDS on discount/commission paid on prepaid/recharge vouchers liable under section 194H. The Commissioner's order was based on the fact that the ACIT (TDS) did not deem the assessee as an assessee in default for not deducting TDS on these payments, thus causing loss to the revenue.

5. Applicability of TDS Under Section 194H on Discount/Commission Paid to Pre-paid Distributors:
The assessee argued that the arrangement with pre-paid distributors was on a 'principal to agent' basis and that tax was duly deducted under section 194H on the commission paid. The Tribunal found that the ACIT (TDS) had not examined this issue in detail, and the Commissioner was correct in directing the AO to examine the default of the assessee regarding non-deduction of tax at source on discount/commission paid to vendors.

6. Compliance with Principles of Natural Justice and Procedural Requirements Under Section 263:
The Tribunal emphasized that the principles of natural justice require that the assessee be given an opportunity of being heard. The Commissioner had provided such an opportunity, and the assessee had availed it by filing detailed submissions. The Tribunal found no merit in the contention that the notice was invalid due to procedural defects.

7. Examination of Whether the CIT (TDS) Has Traveled Beyond the Issues Raised in the Notice:
The assessee contended that the Commissioner had traveled beyond the issues raised in the notice. The Tribunal found no force in this argument, stating that the expressions 'verified' and 'dealt with' used in the notice and the revisionary order, respectively, essentially meant the same thing. The Commissioner had not traveled beyond the scope of the notice.

8. Validity of the Commissioner's Order Based on Existing Legal Precedents:
The Tribunal noted that at the time of passing the order under section 201(1), there were precedents available, including the decision of the Delhi High Court in CIT v. Idea Cellular Ltd., which held that discount paid to vendors on prepaid sim cards/recharge vouchers was in the nature of commission attracting provisions of section 194H. The Tribunal rejected the assessee's contention that the ACIT (TDS) had taken one of the possible views, as the issue had not been properly examined by the ACIT (TDS).

Conclusion:
The Tribunal upheld the revisionary order passed under section 263 by the Commissioner, dismissing the appeals of the assessee. The orders passed by the ACIT (TDS) were held to be erroneous and prejudicial to the interest of revenue due to the failure to examine the issue of TDS on discount/commission paid to vendors against prepaid sim cards/recharge vouchers.

← Previous Next →