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TMI Blog2021 (6) TMI 394X X X X Extracts X X X X X X X X Extracts X X X X ..... from customers - HELD THAT:- As decided in own case [ 2018 (2) TMI 2035 - ITAT MUMBAI] this Bench has deleted the identical addition in assessee s case. - ITA No.4715/Mum/2019 - - - Dated:- 31-5-2021 - Shri Shamim Yahya, Accountant Member And Shri Ramlal Negi, Judicial Member For the Appellant : Shri Bharat Anghle (CIT-DR) For the Revenue : Shri P.P. Jayaraman (AR) ORDER PER RAM LAL NEGI, JM; The revenue has filed the present appeal against the impugned order passed by the Ld. Commissioner of Income Tax (Appeals)-22, Mumbai [for short the ld. CIT (A) ] pertaining to the Assessment Year (AY) 2012-13, whereby the CIT(A) has partly allowed the appeal filed by the assessee against the assessment order passed un ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... btained by the assessee company from the appropriate TDS authority for the year under consideration. 2. On the facts and in the circumstances of the case and in law, the Ld. CIT(A) erred in deleting the addition of ₹ 30 lacs made by AO on estimated basis on account of compensation receive from customers without appreciating the facts that the assessee is following mercantile system of accounting, and hence, the compensation receivable from the customers is required to be accounted on accrual basis. 3. The appellant craves leave to add, amend, vary, omit or substitute any of the aforesaid grounds of appeal at any time before or at the time of hearing of appeal. 4. At the outset, the ld. counsel for the assessee submit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ribunal read as under:- 7. We have carefully considered the rival submissions and perused the material placed before us including the orders of the authorities below and the case law relied upon by the assessee. We find from the material placed before us and the decision of Tribunal relied upon by the AR that the issue raised by the revenue covered is in favour of the assessee in assessee's own case in ITA No. 1945/ Mu m/ 2013 (supra). The operative part is as under:- 6 Now we go through the case law cited by the Ld. counsel for the assessee in the case of CIT Vs. Kotak Securities Ltd. (2012) 340 ITR 333 (Bom), wherein it has been held as under: 31. The object of introducing section 40(a)(ia), as explained in the Centr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hange has discharged its tax liability for the assessment year in question. In any event, in the facts of the present case, in view of the undisputed decade old practice, the assessee had bona fide reason to believe that the tax was not deductible at source under section 194J of the Act and, therefore, the Assessing Officer was not justified in invoking section 40(a)(ia) of the Act and disallowing the business expenditure by way of transaction charges incurred by the assessee. 32. Accordingly, we hold that the transaction charges paid by the assessee to the stock exchange constitute fees for technical services covered under section 194J of the Act and, therefore, the assessee was liable to deduct tax at source while crediting the tra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rgeable to tax as fess for technical services . It was held that though the US Co was the employer in a legal sense but since the services of the employee had been seconded to the assessee and since the assessee was to reimburse the emoluments and it controlled the services of the employee, it was the assessee which for all practical purposes was not chargeable to tax. Though the person deputed by the US Co was a technical person, the consideration paid under the secondment agreement was not fees for technical services because the fact that the seconded employee was responsible and subservient to the payer (assessee) and was required to be also act as officer or authorized signatory or nominee of the assessee made it consistent with an a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2 discussed above by following the order of the co-ordinate Bench in assessee s own case for the AY 2009-10. The operative part of the said order reads are as under: 10. We find that the identical issue had come up before the Tribunal and the Tribunal has sent back the issue to the file of the AO for re-adjudication in term of the principles laid down in the order passed in ITA No. 6832/Mum/2011 for Asst. Year 2008-09 vide order dated 27.02.2013. The relevant operative para of the said order is reproduced below: 9. At the outset, Id. counsel for the assessee stated that this issue has already been remitted back to the file of AO in the immediate preceding year exactly on identical facts by the Tribunal in assessee s own case in I ..... X X X X Extracts X X X X X X X X Extracts X X X X
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