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TMI Blog2019 (2) TMI 803X X X X Extracts X X X X X X X X Extracts X X X X ..... processing payment through debit cards and credit cards. - Decided against revenue - ITA No. 4935/Del/2015 - - - Dated:- 13-2-2019 - SHRI N.K. SAINI, VICE PRESIDENT AND SHRI SUDHANSHU SRIVASTAVA, JUDICIAL MEMBER For The Department : Shri Amti Katoch, Sr. DR For The Assessee : Shri Shashank Sharma, Adv. ORDER PER SUDHANSHU SRIVASTAVA, J. M. This appeal is preferred by the department against the order passed by the Ld. CIT (Appeals)-41, New Delhi vide dated 12.5.2015 for assessment year 2012-13 relevant to Financial Year 2011-12 and challenges the action of the Ld. Commissioner of Income Tax (Appeals) in holding that the assessee was not liable to deduct tax at source on merchant discount/collection ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... there was no liability to deduct tax u/s 194H and further in cases where under bona fide belief there was no requirement to deduct tax, the assessee cannot be saddled with the liability to pay interest u/s 201(1A) of the Act. The Ld. Commissioner of Income Tax (Appeals) allowed the assessee s appeal and now the department is before the ITAT and has raised the following grounds of appeal:- 1. Whether on the facts and circumstances of the case the CIT (A) was justified in holding that the banks through whose Credit cards payments were realized by M/s The Indian Hotels Company Limited had not rendered any service to M/s The Indian Hotels Limited irrespective of the fact that such Banks have realized service charges/ commission in lie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rticularly when the CBDT notification no. 56/2012 dated 31.12.2012 was not effective for the relevant year. 5. Whether on the facts and circumstances of the case the CIT (A) was right in law in taking a decision on the merits of the demand aggregating to ₹ 28,31,225/- u/s 201(1) and 201(1A) of the I.T. Act, 1961 in respect of commission payment/ retained to/by the Banks. 3.0 The Ld. AR appearing on behalf of the assessee/respondent submitted that the assessee s case was covered by the judgment of the Hon ble Delhi High Court in the case of C.I.T. vs. JDS Apparels Pvt. Ltd. reported in (2015) 330 ITR 454 (Del). It was also submitted that this judgment of the Hon ble Delhi High Court was followed by the ITAT Mumbai Bench ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at the issue is squarely covered in favour of the assessee by the judgment of the Hon ble Delhi High Court in the case of C.I.T. vs. JDS Apparels Pvt. Ltd. (supra) wherein it has been held that since the bank was making the payment to the assessee after deduction of bank charges, there was no occasion for the assessee to deduct tax at source and further the bank was not acting on behalf of the assessee but on the other hand was acting on behalf of the customers while processing payment through debit cards and credit cards. The relevant observations of the Hon ble Delhi High Court in C.I.T. vs. JDS Apparels Pvt. Ltd. (supra) are contained in Para 17 and 18 and the same are being reproduced hereunder for a ready reference:- 17. Another ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of express language for the creation of an offence; in interpreting strictly words setting out the elements of an offence; in requiring the fulfilment to the letter of statutory conditions precedent to the infliction of punishment; and in insisting on the strict observance of technical provisions concerning criminal procedure and jurisdiction. 18. The aforesaid principles and interpretations can apply to taxing statutes. In the present case we further feel the said principle should be applied as HDFC would necessarily have acted as per law and it is not the case of the Revenue that the bank had not paid taxes on their income. It is not a case of loss of revenue as such or a case where the recipient did not pay their taxes. 5.1 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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