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TMI Blog2015 (6) TMI 1183X X X X Extracts X X X X X X X X Extracts X X X X ..... upon by the CIT(A) which was not before the Assessing Officer and, therefore, in our opinion, the objection of the Revenue in Ground of appeal no. 2, based on Rule 46 of the Rules, is quite misconceived and the same is hereby dismissed. TDS u/s 194H - assessee has paid commission to banks on credit card transactions - Addition invoking sec 40(a)(ia). HELD THAT:- In the case of JDS Apparels P. Ltd. [ 2014 (11) TMI 732 - DELHI HIGH COURT] . As per the Hon ble Delhi High Court, payment of commission to banks with regard to the processing of credit card transactions was not liable to be considered as a commission within the meaning of section 194H. Bank does not act as an agent of the assessee while processing the credit card payments and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al Expenditure. 2. On the facts and in the circumstances of the case and in law, the Ld. CIT(A) erred in accepting the assessee's explanation that the payment of ₹ 9,09,664/- for carrying out Mystery Audit was to check quality of services provided in it's various restaurants, without giving the AO an opportunity in terms of Rule 46A of the IT Rules and without appreciating that the assessee had been given due opportunity in this regard by the AO but it had failed to substantiate such claim. 3. On the facts and in the circumstances of the case and in law, the Ld. CIT(A) erred in deleting the disallowance of ₹ 6,34,22,030/- under section 40(a)(ia) of the Act without appreciating that the assess ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nditure of capital in nature. Thus he, disallowed such expenditure. 3. Before the CIT(A), the assessee contended that the Assessing Officer erred in treating the said expenditure as having been incurred for acquiring a property in Kerala. Instead, it was explained that the said expense was incurred for Mystery audit of various Restaurants belonging to the assessee so as to check quality of services being provided therein. The CIT(A) has noted that the payment was not connected to acquisition of any Capital asset and, therefore, the Assessing Officer was not justified in treating the said expenditure as capital in nature. The CIT(A) also noticed that the assessee has been making payments to M/s Shaw Hotels Consultancy Services fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... allowed as revenue expenditure and that in the current year assessment year, the Assessing Officer has based his disallowance on a complete misreading of the submissions put-forth by the assessee. We find that Revenue has not specified any material or evidence relied upon by the CIT(A) which was not before the Assessing Officer and, therefore, in our opinion, the objection of the Revenue in Ground of appeal no. 2, based on Rule 46 of the Rules, is quite misconceived and the same is hereby dismissed. 5. The last issue in this appeal is with regard to the action of the CIT(A) in deleting the disallowance of ₹ 6,34,22,030/- which was made by the Assessing Officer by invoking the provisions of section 40(a)(ia) of the Act. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng the provisions of section 40(a)(ia). 8. At the time of hearing, the Ld. DR has not assailed the above decision of CIT(A), on the basis of any decision contrary to that of the Hyderabad Bench of the Tribunal followed by the CIT(A). Apart therefrom, the Ld. Representative for the respondent-assessee relied upon the Judgment of Hon ble Delhi High Court in the case of CIT Vs. JDS Apparels P. Ltd. [ 2015] 370 ITR 454 (Delhi) and the decision of the Mumbai Bench of the Tribunal in the case of ITO Vs. Jet Airways (India) Ltd [2014] 147 ITD 133 (Mum) in support of the conclusion drawn by the CIT(A). 9. We have considered the rival stands and find that the issue is squarely covered by the Judgment of the Hon ble Delhi High Cou ..... X X X X Extracts X X X X X X X X Extracts X X X X
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