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TMI Blog2012 (7) TMI 424X X X X Extracts X X X X X X X X Extracts X X X X ..... e aforesaid intending purchasers of flats - provisions of sec. 40a(ia) of the Act are not applicable - appeal is dismissed. - ITA no.4552/Del/2011 - - - Dated:- 1-6-2012 - SHRI A.D. JAIN, SHRI A.N. PAHUJA, JJ. Assessee by S/Shri M.P. Rastogi K.G. Sharma,ARs Revenue by Smt . Veena Joshi,DR O R D E R A.N.Pahuja:- This appeal filed on 12.10.2011 by the Revenue against an order dated 28.06.2011 of the ld. CIT(A)-XII, New Delhi, raises the following grounds:- 1. The ld. CIT(A) erred in law and on facts and circumstances of the case, in deleting the addition of Rs. 51,37,584/- made by the Assessing Officer by holding that it was not commission. 2. The ld. CIT(A) erred in law and on facts and circumstances of the c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tocopies of confirmation. However, the AO did not accept the submissions of the assessee on the ground that the payments made by the assessee were actually in the nature of commission for which tax was not deducted at source. Inter alia, the AO observed that the assessee failed to substantiate that the amount debited under the had marketing expenses was actually passed on to various persons who booked/purchased the property in question. While holding that the amount was not in the nature of discount and was commission only, the AO disallowed the amount of Rs. 51,37,584/- u/s 40a(ia) of the Act, tax having not been deducted at source u/s 194H of the Act. 3. On appeal, the ld. CIT(A) allowed the claim of the assessee as under:- 4.4 The s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... section 194H are not attracted in this case. Thus, the disallowance of `₹ 51,37,584/- made on account of non deduction of TDS is hereby deleted. 4. The Revenue is now in appeal before us against the aforesaid findings of the ld. CIT(A). The ld. DR supported the order of the AO .On the other hand, the ld. AR on behalf of the assessee supported the findings of the ld. CIT(A) while relying upon decision dated 17th May, 2012 of the Hon ble High Court in the case of CIT Vs. Surendra Buildtech Pvt. Ltd. in I.T.A. no. 141/2012 , upholding the decision dated 27th May, 2011 of the ITAT in I.T.A. no.4854/Del./2010 for the AY 2007-08. 5.We have heard both the parties and gone through the facts of the case as also the aforesaid decisions re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en the builder and the ultimate purchaser of the flats. The assessee has parted with some part of the commission received from the builder from alluring the purchaser so that it can earn more commission. It is just providing a discount to the purchaser and not paying any commission for any services taken from such customers. It appears that learned Assessing Officer was influenced by the nomenclature of the receipt in the hands of the assessee. He failed to distinguish what character such receipt would attain when it will be offered to the customer. The relationship between the assessee and the purchaser of the flat is of buyer and seller. The learned First Appellate Authority has appreciated the controversy in right perspective and we do n ..... X X X X Extracts X X X X X X X X Extracts X X X X
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