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2020 (9) TMI 330 - AT - Income TaxRevision u/s 263 - TDS u/s 194H - disallowance of incentive and commission for SIM cards u/s.40(a)(ia) - requirement to be Audited u/s. 44AB - HELD THAT - If the books of account was not audited u/s.44AB of the Act in the immediately preceding financial year then this provision will not applied in the current financial year in case of individual or HUF. From the computation of income filed by the assessee the turnover of the assessee is below ₹ 60 lakhs which was not required to be audited u/s.44AB of the Act. This fact has not been examined by any of the authorities below. Therefore, the assessee has not fulfilled the first condition and therefore, he is out of the purview of Section 194H for making deduction on payments made to the retailers as a commission or discount of more than ₹ 5000/-. The assessee is an Individual. The assessee has got audited his books of account in the financial year 2011-2012 relevant to the assessment year 2012-2013, which is under dispute for making TDS. In view of the above provisions of Section 194H of the Act, the assessee is not required to make TDS. Therefore, the order passed by the AO is not erroneous and prejudicial to the interest of Revenue. - Decided in favour of assessee.
Issues Involved:
1. Legality and arbitrariness of the revisionary order passed under Section 263 of the Income Tax Act. 2. Disallowance of ?7,42,150/- paid towards incentive and commission and incentive for SIM under Section 40(a)(ia) of the Income Tax Act. 3. Applicability of Section 194H regarding TDS on incentives and commissions. Issue-wise Detailed Analysis: 1. Legality and Arbitrariness of the Revisionary Order Passed Under Section 263 of the Income Tax Act: The assessee challenged the revisionary order passed by the Principal Chief Commissioner of Income Tax-II, Odisha, dated 21.03.2016, under Section 263 of the Income Tax Act, claiming it to be illegal and arbitrary. The Tribunal initially dismissed the appeal, noting that the grounds of appeal did not challenge the order under Section 263 but rather the disallowance under Section 40(a)(ia). The High Court later set aside the Tribunal's order, directing a fresh hearing, emphasizing that the denial of an adjournment on the first date amounted to a denial of an opportunity to present the case effectively. Upon rehearing, the Tribunal found that the Principal Chief Commissioner of Income Tax (Pr.CIT) had not considered whether the assessee's books of accounts were audited in the preceding financial year, which would affect the applicability of Section 194H. The Tribunal concluded that the Pr.CIT’s order was not justified and quashed it, allowing the assessee’s appeal on legal grounds. 2. Disallowance of ?7,42,150/- Paid Towards Incentive and Commission and Incentive for SIM Under Section 40(a)(ia) of the Income Tax Act: The Pr.CIT observed that the assessee did not deduct TDS on the incentive, commission, and incentive for SIM cards totaling ?7,42,150/-, as required under Section 194H. Consequently, the Pr.CIT held the assessment order erroneous and prejudicial to the interest of revenue, directing a de novo assessment. However, the Tribunal, upon rehearing, noted that the assessee's turnover in the preceding financial year was below ?60 lakhs, and the books were not required to be audited under Section 44AB. Thus, the provisions of Section 194H for TDS deduction did not apply. The Tribunal concluded that the AO’s order was not erroneous or prejudicial to the interest of revenue, quashing the Pr.CIT’s order. 3. Applicability of Section 194H Regarding TDS on Incentives and Commissions: The key contention was whether the incentive and commission on SIM cards fell under the purview of Section 194H, which mandates TDS on commission or brokerage payments. The assessee argued that these payments were discounts given to retailers, not commissions, and thus did not attract TDS under Section 194H. The Tribunal examined the provisions of Section 194H, noting that it applies to individuals or HUFs whose books were audited in the preceding financial year. Since the assessee's turnover was below the threshold for mandatory audit under Section 44AB in the preceding year, the provisions of Section 194H did not apply. Consequently, the Tribunal held that the assessee was not required to deduct TDS on the payments made to retailers, and the AO’s original assessment was not erroneous or prejudicial to the revenue. Conclusion: The Tribunal allowed the appeal of the assessee, quashing the revisionary order passed by the Pr.CIT under Section 263, and held that the disallowance of ?7,42,150/- under Section 40(a)(ia) was not justified as the provisions of Section 194H did not apply to the assessee for the relevant assessment year. The Tribunal emphasized that the AO’s original assessment was neither erroneous nor prejudicial to the interest of the revenue.
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