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TMI Blog2015 (10) TMI 2176X X X X Extracts X X X X X X X X Extracts X X X X ..... ed. Collector /aggregators/TSPs are bound by the terms and conditions agreed upon with the assessee, therefore, there is a direct master agent relationship. CIT(Appeals) has not controverted the factual finding recorded by the ld. Assessing Officer and blindly followed some decisions, which are not even applicable the facts of the appeals of the assessee. Even otherwise, as mentioned earlier, no grievance will be caused to either side, if the matter is examine afresh in the light of the direction contained in the order of the Tribunal dated 31/03/2015 and discussion made in the present order, while deliberating upon the miscellaneous applications filed by the assessee as the mandate of the constitution is to levy and collect due taxes. If the conscious of the assessee is very much clear, then, its not afraid from fresh adjudication by the Assessing Officer in the light of the orders passed by the Tribunal. So far as, the contention of the ld. DR is that during hearing on 06/02/2015 and 31/03/2015, no indication was given by the Bench with respect to non-satisfactory reply by the assessee is concerned, we note that on 18/12/2014, the appeals were kept as part heard as the asse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of argument is that the order of remand to the Assessing Officer is based on misconception. 2.1. On the other hand, the ld. DR, Shri Arvind Kumar, strongly defended the conclusion arrived at in the impugned order by contending that the assessee is trying to get the order reviewed, through this misconceived application of rectification, which is not permissible under the Act and secondly a well reasoned order had passed by the Tribunal. It was also contended that the Tribunal has merely remanded the matter back to the file of the ld. Assessing Officer for fresh examination as on various issues, which have been conveniently ignored by the ld. Commissioner of Income Tax (Appeals) and even the observation made in the assessment order were not considered. A strong plea was raised that if the assessee is so clean then why the assessee is trying to thwart the proceedings and rather expected to file the necessary details before the Assessing Officer. 2.3. We have considered the rival submissions and perused the material available on record. If the observation made in the assessment order, leading to addition made to the total income, conclusion drawn in the impugned order, material ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... walking patients/clients of the assessee and the whole turnover is due to/through so called contractors/business associates (service provider or aggregators) It is also not clear from the order of the ld. Commissioner of Income Tax (Appeals), whether the assessee asked the service providers/aggregators to deduct TDS as per rule, while appointing them. Therefore, the assessee was rightly directed to provide the list of such aggregators/service providers (a) Who are deducting or not deducting TDS from their Thyrocare billing, if not, (b) whether the assessee is depositing due taxes in the state exchequer. Even otherwise, it is the mandate of the constitution to levy and collect due taxes, therefore, to safeguard the interest of the assessee/Revenue, the matter was remanded back to the file of the ld. Assessing Officer to examine the facts and then decide in accordance with law after providing due opportunity to the assessee, therefore, no grievance is caused to the assessee. Even otherwise, if the business associates of the assessee (aggregator or service provider) has not deducted the TDS, there is a loss to the nation and it is the duty of such aggregators/service provider/assesse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... enue to demonstrate that the taxes has not been recovered from the person who had the primary liability to pay tax, is concerned, we find that this decision is not applicable to the facts of the present appeal, because, the ld. Commissioner of Income Tax (Appeals) has not dealt with/contradicted, with evidence, that the factual finding recorded in the assessment order is perverse. Therefore, the matter was remanded to the file of the Assessing Officer to examine the factual aspects, with certain directions, therefore, the assessee has not discharged its onus rather the onus is to be discharged during set aside proceedings, pursuant to the order of the Tribunal dated 31/03/2015, thus, there is no merit in the argument of the assessee. The other cases relied upon by the assessee are similarly cannot come to the rescue of the assessee. 2.8. So far as the contention of the assessee that there is no relationship of principal and agent between the assessee and the TSPs (aggregators/service providers) is also factually incorrect as the assessee is a principal and the aggregators/service providers are clearly agent of the assessee. The aggregators/service providers are bound by the term ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ar Raju, Executive Director of the assessee company, who was examined on oath which has also been examined by us, while passing the order dated 31/03/2015. Thus, the totality of facts clearly indicates that there is relation of master/principal and agent between the assessee and collectors/service providers. Thus, from this angle also, we find no substance in the argument of the assessee. The collectors/service providers are undisputedly using the logo/name of Thyrocare (assessee) and the consumables/ logistic/other material is provided to such collector/service provider by the assessee. It is also noted that such TSPs cannot assign any rights/authority, conferred on them by the assessee company to any other person without the prior approval of the assessee company and for violation, they are liable for action. We have also perused the statement of Shri Manish Gandhi (reproduced in para 2.3 of the order of the Tribunal) wherein, in reply to question no. 6, he has specifically tendered that even they are collecting specimen from small laboratories, hospitals, nursing homes, residence of the patients on their demand and charges the prices/rates on the basis of catalogue recommended b ..... X X X X Extracts X X X X X X X X Extracts X X X X
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