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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 ..... nd circumstances of the case, in holding that the buyer did not provide any services to the assessee. 3. The appellant craves to amend, modify, alter, add or forgo any ground of appeal at any time before or during the hearing of this appeal." 2. Facts, in brief, as per relevant orders are that return declaring income of Rs.1,11,16,550/-/- filed on 30.09.2008 by the assessee, director of M/s Surendra Buildtech Pvt. Ltd., after being processed u/s 143(1) of the Income-tax Act, 1961 (hereinafter referred to as the Act), was selected for scrutiny with the service of a notice u/s 143(2) of the Act issued on 29.09.2009. During the course of assessment proceedings, the Assessing Officer (A.O. in short) noticed that the assessee received commissi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... see as under:- "4.4 The submission given by the appellant has been perused. I find that the discount had been given by the appellant to persons who had booked the flat/building through the appellant and the commission which the assessee received from the builder, is passed on as a part of such commission to the original persons who booked the flat. The Assessing Officer has also stated that such commissions were passed on to persons other than the original persons who made the booking but in the assessment order he has not cited a single instance where the discount has been given to persons other than those who had made the original booking. In order that any amount is subject TDS on account of commission, it is necessary that: i) service ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aid decisions relied upon. Indisputably, the payment of `Rs. 51,37,584/- was made to persons by a/c payee cheques as per details placed on page 9 to 33 of the paper book, who booked flats in various projects of different builders. The ld. CIT(A) found that these persons did not render any service to the assessee and therefore, discount offered by the assessee could not be treated as commission nor was there any principal-agent relationship between the assessee and these persons . In these circumstances , the ld. CIT(A) concluded that the provisions of section 194H could not be invoked. The ld. AR pointed out that in similar circumstances, a co-ordinate Bench in their the decision dated 27th May, 2011 in the case of Surendra Buildtech Pvt. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd we do not see any person to interfere in his order." 5.1 On appeal by the Revenue, the Hon'ble High Court upheld the findings of the ITAT in the following terms:- "10. We do not think that the aforesaid findings are perverse or require any interference in exercise of our jurisdiction u/s 260A of the Act. The factual finding as recorded by the first appellate authority and the Tribunal is that the payments were made by the purchasers who had booked plots/flats. While making payment, discounted price was paid by the buyers. In these circumstances, we do not think that section 194H of the Act can be invoked. Therefore, no substantial question of law arises on the first aspect." 5.2 In the instant case before us also, the assessee parted ..... X X X X Extracts X X X X X X X X Extracts X X X X
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