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2018 (9) TMI 1166 - AT - Income TaxRevision u/s 263 - non deduction of TDS u/s 194H - payment of incentive to various sub-dealers - assessee is a wholesale dealer of recharge vouchers, coupons, SIM cards for telecom entities, like, Idea Cellular Ltd. and Tata Teleservices - Held that - It cannot be held that any relationship exists between the assessee and his sub-dealers; therefore, we hold that nature of payment in the form of incentive to various sub-dealers cannot be equated with commission as stipulated u/s.194H. Accordingly, we hold that there is no requirement for deducting TDS. Thus, in view of our aforesaid reasoning, we hold that the assessment order is not prejudicial to the interest of revenue. Since one of the limb of exercising jurisdiction u/s.263 is missing, i.e., it is not prejudicial to the interest of the revenue; therefore, such a revisionary jurisdiction u/s.263 cannot be sustained. Hence, the order of the ld. CIT is set aside and the grounds raised by the assessee are allowed.
Issues:
Challenging order u/s.263 - Erroneous assessment - TDS deduction u/s.194 - Nature of commission/incentive payments. Detailed Analysis: 1. Challenging Order u/s.263: The appellant challenged the order passed u/s.263, contending that the assessment order was not erroneous or prejudicial to the revenue's interest. The appellant argued that the Assessing Officer had taken a permissible course of action, and the CIT could not direct a fresh assessment order based on his own view. Additionally, the appellant claimed that the payments made were less than ?5,000 per party in most transactions, thus no TDS deduction u/s.194 was required. 2. Erroneous Assessment: The original return of income declared by the assessee was selected for scrutiny, leading to an addition of ?1,23,000 on account of disallowance of expenses. The Assessing Officer completed the assessment at an income of ?3,94,650. The CIT, in the revisionary jurisdiction u/s.263, observed that the assessee had not deducted TDS u/s.194H on commission payments, deeming the assessment order erroneous and prejudicial to revenue. 3. Nature of Commission/Incentive Payments: The CIT held that the commission/incentive payments to dealers/sub-dealers indicated a principal-agent relationship, not a sale of goods. Referring to legal precedents, the CIT concluded that the discount offered by the appellant to dealers/sub-dealers should be treated as commission subject to TDS u/s.194H. However, the appellant argued that the Assessing Officer had already examined the issue, making further disallowance under section 40(a)(ia) unjustified. 4. Judicial Interpretation and Decision: The ITAT analyzed the nature of transactions between the appellant, telecom entities, and dealers/sub-dealers. It differentiated between the relationship of the appellant with dealers/sub-dealers and that of telecom entities with distributors. The ITAT found no agency relationship between the appellant and sub-dealers, as the ownership and control of goods lay with the telecom entities. The court emphasized that the appellant's transactions did not meet the criteria for TDS deduction under section 194H, as the nature of payments was not akin to commission. 5. Conclusion: The ITAT held that the assessment order was not prejudicial to revenue as the appellant's transactions did not warrant TDS deduction under section 194H. The revisionary jurisdiction u/s.263 was deemed unsustainable due to the absence of revenue prejudice. Consequently, the order of the CIT was set aside, and the grounds raised by the appellant were allowed, resulting in the appeal being allowed in favor of the assessee. This detailed analysis highlights the key legal issues, arguments presented, judicial interpretations, and the final decision rendered by the ITAT, providing a comprehensive understanding of the judgment.
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