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TMI Blog2023 (11) TMI 1184X X X X Extracts X X X X X X X X Extracts X X X X ..... letion of the adjustment made in the intimation u/s. 143(1) of disallowance of payment towards contribution of provident fund and superannuation for the year under consideration. No evidence has been filed by the appellant to the amount as added back to the income of the appellant for A.Y. 2017-18, particularly the computation of income for A.Y. 2017-18 and the contention made by the appellant was not found to be acceptable as also the same fact is not appearing in the Audit Report as a technical error, the addition was upheld by the Ld.CIT(A). At the time of hearing the instant appeals, assessee submitted before us that the issue may be remitted to the file of Ld.AO for verification of the same upon considering the evidences to be placed by the assessee in support of the case made out. The Ld.DR on the other hand relied upon the order passed by the Ld.CIT(A). We in order to prevent the miscarriage of justice, find it fit and proper to remit the issue to the file of Ld.AO to adjudicate the issue afresh upon considering the evidence on record and any other evidence which the assessee may choose to file at the time of hearing of the matter. We also further make it clear that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... viders who collect fees from participants and they collect gateway payment commission from the appellant after returning the gateway charges they transfer the balance amount collected from the participants to the appellant. We find that the payments made to gateway providers are not brokerage and TDS u/s. 194H of the Act is not liable to be deducted. TDS is not liable to be made u/s. 194H. The addition, is, therefore, deleted. - SHRI CHANDRA POOJARI, ACCOUNTANT MEMBER AND MS. MADHUMITA ROY, JUDICIAL MEMBER For the Appellant : Shri P. Murali Mohan Rao, CA For the Respondent : Shri Nischal .B, Addl. CIT (DR) ORDER PER MADHUMITA ROY, JUDICIAL MEMBER The instant appeals filed by the assessee are directed against the order dated 16.01.2023 passed by the NFAC, Delhi arising out of the order dated 04.11.2019 passed by the Ld.DCIT, CPC, Bangalore u/s. 143(1) of the Income Tax Act, 1961 (hereinafter referred to as the Act ) for A.Y. 2018-19 and against the order dated 18.01.2023 passed by the NFAC, Delhi arising out of the order dated 12.03.2021 passed by the National e-Assessment Centre, Delhi u/s. 143(3) r.w. sections 143(3A) 143(3B) of the Act for A. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2017-18. The amount, therefore, was not available for deduction in 2017-18 as the same amount was not paid by the assessee on or before the due date applicable in it s case of furnishing his IT return u/s. 139(1) of the Act. However, in terms of the provision of the law, the same expenditure can be availed as deduction in the year of actual payment i.e. for A.Y. 2018-19. The claim of making such payment in the previous year not appearing in the audit report due to some technical error. In that view of the matter, the assessee prayed for deletion of the adjustment made in the intimation u/s. 143(1) of disallowance of payment towards contribution of provident fund and superannuation of Rs. 5,00,150/- for the year under consideration. 9. No evidence has been filed by the appellant to the amount of Rs. 5,00,150/- was added back to the income of the appellant for A.Y. 2017-18, particularly the computation of income for A.Y. 2017-18 and the contention made by the appellant was not found to be acceptable as also the same fact is not appearing in the Audit Report as a technical error, the addition of Rs. 5,00,150/- was upheld by the Ld.CIT(A). At the time of hearing the instant appeals ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .DR on the other hand relied upon the order passed by the Ld.CIT(A). 14. Having heard the Ld.Counsel appearing for the parties and having regard to the facts and circumstances of the case, we in order to prevent the miscarriage of justice, find it fit and proper to remit the issue to the file of Ld.AO to adjudicate the issue afresh upon considering the evidence on record and any other evidence which the assessee may choose to file at the time of hearing of the matter. We also further make it clear that the assessee in that event be given an opportunity of being heard by the Ld.AO. This ground of appeal is, therefore, allowed for statistical purposes. 15. Ground no. 5 is general in nature and therefore do not require any adjudication. ITA No. 281/Bang/2023 16. The application is barred by limitation by 19 days. An application for condonation of delay has also been filed by assessee before us. The case of the assessee is this that the order impugned was served upon the assessee on 18.03.2023 and the appeal was, therefore, due to be filed by 19.03.2023. As the order was served upon one of the staff member namely Suresh Kumar Reddy G, who left the organisation and afte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .AO u/s. 194H of the Act which was further upheld by the Ld.CIT(A). 21. At the time of hearing the instant appeal, the Ld.Counsel appearing for the assessee submitted before us that the case was selected for limited scrutiny under CASS to verify the issue verification of the genuineness of the expenses and therefore the scope of making addition in the instant case is beyond the scope of limited scrutiny and thus the addition is not in accordance with law and thus liable to be deleted. The submission of the Ld.AR have not been able to be controverted by the Ld.DR rather consideration of the issue of payment of TDS is also within the scope of limited scrutiny for verification of the genuineness of the expenses as was the ultimate argument by him. However, according to us such submissions is found to be not tenable, the scope of limited scrutiny is only within the periphery of the verification of the genuineness of the expenses which does not include the payment of TDS as has been considered in this particular case by the Ld.AO and addition made thereof. Hence the same is not found to be justified and thus deleted. 22. On merit we have heard the Ld.Counsel appearing for the as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ovisions of Section 194H of the Act are not attracted to the fact situation of the case. In the result, the third substantial question of law is also answered against the revenue and in favour of the assessee. In the result, we do not find any merit in this appeal, the same fails and is hereby dismissed. 26. Further the Hon ble Delhi High Court in case of PCIT vs. Make My Trip India (P.) Ltd. (supra) has observed as follows: 16. The amount retained by the bank is a fee charged by them for having rendered the banking services and cannot be treated as a commission or brokerage paid in course of use of any services by a person acting on behalf of another for buying or selling of goods. The intention of the legislature is to include and treat commission or brokerage paid when a third person interacts between the seller and the buyer as an agent and thereby renders services in the course of buying and/or selling of goods. This happens when there is a middleman or an agent who interacts on behalf of one of the parties, helps the buyer/seller to meet, or participates in the negotiations or transactions resulting in the contract for buying and selling of goods. Thus, the require ..... X X X X Extracts X X X X X X X X Extracts X X X X
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