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TMI Blog2015 (12) TMI 1503X X X X Extracts X X X X X X X X Extracts X X X X ..... r terms and conditions in case of credit card. This is not a commission payment but a fees deducted by the bank. There is no such relation between the bank and the shop keeper, which establishes the relationship of a principal and commission agent. Therefore, TDS is not liable to be deducted on payment made on the basis of credit card. The other case laws referred by the assessee is also squarely applicable. - Decided in favour of assessee. Disallowance of Misc. supply expenses - CIT(A) deleted the addition - Held that:- The assessee is a Five Star hotel managed professionally. There is an agreement with multinational company in sharing receipts. The ld Assessing Officer made addition by making general observation. He is not deducted any specific bill vouchers that the assessee has made cash payments for expenses or made self made vouchers. The ld DR had not controverted the findings given by the ld CIT(A), therefore, we uphold the order of the ld CIT(A).- Decided in favour of assessee. X X X X Extracts X X X X X X X X Extracts X X X X ..... for which different rates of depreciation have been provided by the law. As per Appendix-I, Rule 5 of the Act, the depreciation on wind mills is as under:- Clause III: Machinery & Plant (xiii) Renewal energy saving devices being: (I) Wind Mills and any specially designed devices which run on wind mills. (M) Any special device including electric generators and pumps running on wind energy. The categorization made in the Appendix shows that there is no intention to include internal approach roads, foundation work and crane platform for wind mill, supply of electric items like RSJ Poles Disc insulator, conductor etc. in the above block of assets. Further the expenditure on account of labour for civil work or electrical work carried out in connection with the installation of wind mill also cannot be included in the definition of Wind Mill by any means because they are not devices in any sense are mentioned in (xiii)(L) and (m). The ld Assessing Officer recategorized the assets shown by the assessee in the balance sheet under the following heads: 1] Expenditure incurred for civil work carried out at site, charges for creation of foundation/platform. 2] Expenditure incurred ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ound was allowed by my predecessor in A.Y. 2010-11 as well. Therefore, following the order of my predecessor as well as of the Hon'ble ITAT, the disallowance made by the A.O. is deleted. The appeal on this ground is, accordingly, allowed." 4. Now the revenue is in appeal before us. The Ld. DR vehemently supported the order of the ld. Assessing Officer. At the outset, the ld AR of the assessee has supported the order of the ld CIT(A) and further submitted that this issue has already been considered by the Hon'ble ITAT in the case of M/s Chirash Associates Pvt. Ltd. (ITA No. 1632/JP/08) in A.Y. 2008-09 wherein the Hon'ble Bench has allowed the assessee's appeal in favour of it. The assessee has further submitted as under:- The above disallowance of depreciation on WDV of wind power mill is sequel of similar disallowance in A.Y. 2008-09 as stated above. The assessee company filed appeal against the assessment order for A.Y. 2008-09 before CIT(A)-I, Jaipur. The CIT(A)-I, Jaipur vide his appeal order dated 06/07/2011 in appeal No. 481/10-11 (copy submitted) deleted the disallowance of depreciation and directed the A.O. to treat the entire cost of ₹ 3,66,33,382/- as cost of win ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ility services on page 17 to 19 of the assessment order and finally held that service charges/credit card commission is nothing but commission is defined in Section 194H, which has also reproduced by the Assessing Officer on page 20 and 21 of the assessment order. Accordingly, the assessee is liable to deduct TDS U/s 194H of the Act. He further referred CBDT circular No. 619 on TDS dated 04/12/1991 on page No. 22 of the assessment order. He further relied on the decision in the case of CIT Vs. Singapore Airlines Ltd. & Other Airlines, 213 Taxman 441, Ahmadabad Tribunal order in the case of Canara Bank Vs. ITO 305 ITR (AT) 189, Mumbai ITAT's decision in the case of Ultra Entertainment Solutions Ltd. Vs. ITO 17 SOT 249. Accordingly, he disallowed the commission payment related to these banks at ₹ 4,82,093/- in respect of Axix bank Ltd. 7. Being aggrieved by the order of the Assessing Officer, the assessee carried the matter before the ld CIT(A), who had allowed the appeal by observing as under:- "6. I have considered facts of the case. It is seen that this issue has already been decided in the appeal for A.Y. 2010-11 in favour of the appellant in view of the order of the Hon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on presentation of bill issued against credit card, the bank makes payment to the assessee after deducting agreed fees as per terms and conditions in case of credit card. This is not a commission payment but a fees deducted by the bank. There is no such relation between the bank and the shop keeper, which establishes the relationship of a principal and commission agent. Therefore, TDS is not liable to be deducted on payment made on the basis of credit card. The other case laws referred by the assessee is also squarely applicable. Accordingly, we uphold the order of the ld CIT(A). 10. The 3rd ground of the revenue's appeal is against deleting the disallowances of Misc. supply expenses of ₹ 4,29,676/-. The ld Assessing Officer observed that the assessee has claimed Rs, 21,48,379/- on account of miscellaneous supplies and expenses. He asked the assessee to furnish the details of these expenses during the assessment proceedings. The ld Assessing Officer on verification, was found that these expenses were incurred mostly in cash and were not supported by bills. The assessee had made self made vouchers which are not verifiable. The ld Assessing Officer held that it cannot be said ..... X X X X Extracts X X X X X X X X Extracts X X X X
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