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TMI Blog2015 (9) TMI 187X X X X Extracts X X X X X X X X Extracts X X X X ..... of all the cases are similar except for the assessment years and amounts and the submissions are also common for all the appeals and therefore all the appeals can be heard together. Ld D.R did not object to the aforesaid submissions of Ld. A.R. We therefore proceed to dispose of all the appeals together for the sake of convenience and thus proceed with the facts in A.Y. 2008-09 in ITA No. 944/Ahd/2012. 3. Assessee is a company stated to be engaged in the business of manufacturing and selling of highly specialized engineering thermoplastic. In this case, a survey u/s. 133A was conducted at the office premises of the Assessee on 11.11.2009 and it was noticed that most of the sales were made through consignment dealers and substantial amount ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... both for ABS & SAN. This includes incentive commission paid on of attaining certain volume in sales. The second is reimbursement of rate difference by way of credit notes. This is required to be done because company, as per its policy, is dispatching goods to its distributors/consignment agents on certain fixed rates whereas in the bills issued by the distributors/consignment agents to actual consumers market rate is being charged. The company is later on reimbursing the difference because distributors/consignment agents are only agents of the company. As has been explained by the appellant company this arrangement is allowing the actual consumers to claim certain tax benefits which would not be allowable in case of direct billing by the c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... use from the details available in the order of the AO it is not clear as to what was the purpose of various credit notes issued by the appellant. This ground of appeal is partly allowed. 4. Aggrieved by the aforesaid order of ld. CIT(A), Assessee is now in appeal before us and raised the following grounds:- 1. The Hon'ble Commissioner of Income Tax (A) has erred in confirming the levy of tax & Interest u/s 201(1)/201(1A) of Rs. 3,50,025/- by the AO on the ground that the discounts and rebates offered by your appellant to the agents is in the nature of COMMISSION, In turn, the action of the AO of invoking provisions of section 201(1)/201(1A) has been held as correct, without appreciating the facts submitted by your appellant. Your app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e due to achieving bigger target. He pointed to the sample copies of the credit notes which were raised during the year in support of his contention that the amount was not in the nature of commission but was in the nature of discount. He further placed reliance on the decision of Ahmedabad Tribunal in the case of Gujarat Fluro Chemicals vs. ACIT (ITA Nos. 1956 to 1958/A/ order dated 31.10.2013) the copy of which was placed at page 155 to 163 of the paper book. He further placed reliance on the decision of Pune Tribunal in the case of Fosters India Pvt. Ltd. vs. ITO reported in (2008) 117 TTJ (Pune) 346. He therefore submitted that Assessee was not liable to deduct TDS and therefore the interest levied be deleted. As an alternate contention ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not in the nature of commission has been accepted by the Department and therefore in such circumstances the present order raising demand u/s 201 & 201(1A) needs to be quashed. The ld. D.R. on the other hand supported the order of A.O and ld. CIT(A) and further placed reliance on the decision in the case of Mahesh Enterprise vs. ITO reported in (2010) 42 SOT 145 (Mum). 6. We have heard the rival submissions and perused the material on record. The issue in the present case is with respect to deduction of TDS on the payment of discount and rebate given by the Assessee to the consignment agent. Before us, it is Assessee's submission that it has paid various types of commissions and discounts to the distributors since last several years namely ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion of TDS on the payments was resorted to by the AO and it is more relevant when the present impugned order was passed prior to the assessment orders passed u/s 143(3) and the assessing officer while framing the assessments u/s 143(3) was having the impugned orders before him and when the scope of assessment u/s 143(3) is much wider and it covers the computation of the total income by the assessee. Apart from the above, we find that issue in dispute is squarely covered in favour of Assessee by the decision of Hon'ble Apex Court in the case of Hindustan Coco Cola (supra) as pointed out by the ld. A.R. in his alternative contention. In order to silence the controversy with all possible angles, we deem it fit to accept the altenate contention ..... X X X X Extracts X X X X X X X X Extracts X X X X
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