ITO, New Delhi v. M/s. Mother Dairy India Ltd., New Delhi

ITA 4926/DEL/2009 | 2005-2006
Pronouncement Date: 19-04-2010 | Result: Dismissed

Appeal Details

RSA Number 492620114 RSA 2009
Bench Delhi
Appeal Number ITA 4926/DEL/2009
Duration Of Justice 3 month(s) 18 day(s)
Appellant ITO, New Delhi
Respondent M/s. Mother Dairy India Ltd., New Delhi
Appeal Type Income Tax Appeal
Pronouncement Date 19-04-2010
Appeal Filed By Department
Order Result Dismissed
Bench Allotted E
Tribunal Order Date 19-04-2010
Date Of Final Hearing 19-04-2010
Next Hearing Date 19-04-2010
Assessment Year 2005-2006
Appeal Filed On 31-12-2009
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH E: NEW DELHI BEFORE SHRI C.L. SETHI JUDICIAL MEMBER & SHAMIM YAHYA ACCOUNTANT MEMBER ITA NO. 4926/DEL/2009 ASSESSMENT YEARS : 2005-06 INCOME TAX OFFICER WARD 50(4) ROOM NO. 501 5 TH FLOOR LAXMI NAGAR DISTT. CENTRE DELHI VS. M/S. MOTHER DAIRY INDIA LTD. NOW AMALGAMATED WITH MOTHER DAIRY FRUIT & VEGETABLES P. LTD. PATPARGANJ NEW DELHI APPELLANT BY : SHRI G.S. SAHOTA SR. DR RESPONDENT BY : MS. MANJU BHARDWAJ AR O R D E R PER: C.L. SETHI J.M. IN THIS APPEAL FILED BY THE REVENUE AGAINST THE O RDER DATED 03.10.2009 PASSED BY THE LD. CIT(A) IN THE MATTER OF AN ORDER PASSED BY THE AO U/S. 201(1)/201(1A) OF THE INCOME TAX ACT 1961 (THE AC T) FOR THE F.Y. 2004-05 THE FOLLOWING GROUNDS HAVE BEEN RAISED BY THE REVEN UE:- ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASES AS WELL AS IN LAW THE LEARNED CIT(A) HAS EARNED IN (1) HOLDING THAT THE TRANSACTION BETWEEN THE ASSESS EE AND THE CONCESSIONAIRES IS A PRINCIPAL TO PRINCIPAL TRA NSACTION AND NOT PRINCIPAL TO AGENT TRANSACTION (2) HOLDING THAT THE PAYMENTS MADE BY THE ASSESSEE TO ITS CONCESSIONAIRES FOR SELLING MILK/PRODUCTS IS NOT C OMMISSION AS DEFINED UNDER SECTION 194 H OF THE IT ACT 1961 (3) NOT CORRECTLY APPRECIATING THE TERMS OF THE AGREEME NT AND CONDUCT OF THE PARTIES THAT THE RELATIONSHIP BE TWEEN THE ITA NO. 4926/DEL/2009 PAGE 2 OF 3 ASSESSEE AND CONCESSIONAIRES IS THAT OF THE PRINCIP AL TO PRINCIPAL. 2. WE HAVE HEARD BOTH THE PARTIES AND HAVE CAREFULL Y GONE THROUGH THE ORDERS OF THE AUTHORITIES BELOW. 3. THE AO CREATED A TAX LIABILITY UPON THE ASSESSEE FOR NON-DEDUCTION OF TAX U/S. 194 H ON THE GROSS MARGINS EARNED BY THE CONCE SSIONAIRES BY TREATING THESE MARGINS AS COMMISSION WITHIN THE MEANING OF SECTI ON 194 H OF THE ACT. THE AO ALSO CHARGED INTEREST U/S. 201(1A) ON THE AFORES AID TAX LIABILITY. IN THE ORDER PASSED U/S. 201(1)/201(1A) ON 12 TH MARCH 2009 THE AO HAS STATED THAT IDENTICAL ORDER WAS ALSO MADE FOR THE F.Y. 2003-04 ON 31.03.2 008 AND THOUGH THE STAND OF THE AO HAS NOT BEEN ACCEPTED BY THE HONBLE INCO ME TAX APPELLATE TRIBUNAL (ITA NO. 2975/DEL/2008 BEFORE THE ITAT DELHI BENCH ES D NEW DELHI ORDER BEING DATED 12.12.2008) BY HOLDING THAT THE TRANSAC TION BETWEEN THE ASSESSEE AND THE CONCESSIONAIRES IS ONE BETWEEN TWO PRINCIPA L TO WHICH THE PROVISIONS OF SECTION 194 H WOULD NOT APPLY THE ORDER OF THE TRI BUNAL HAS NOT BEEN ACCEPTED BY THE DEPARTMENT AND AN APPEAL U/S. 260A BEFORE TH E HONBLE DELHI HIGH COURT HAS BEEN FILED BY THE DEPARTMENT. FROM THE O BSERVATION MADE BY THE AO IT IS THUS CLEAR THAT IDENTICAL ISSUE HAD ARISEN IN F.Y. 2003-04 AND ON SAME REASONING THE AO HAS PASSED THE IMPUGNED ORDER IN N EXT F.Y. 2004-05. IT IS ALSO NOT IN DISPUTE THAT THE TRIBUNAL HAS ACCEPTED ASSESSEES CASE BY HOLDING THAT THE PROVISIONS OF SECTION 194 H DOES NOT APPLY TO T HE PRESENT CASE. THE ORDER OF ITA NO. 4926/DEL/2009 PAGE 3 OF 3 THE TRIBUNAL IN EARLIER F.Y. 2003-04 HAS NOT YET BE EN EITHER SET ASIDE OR MODIFIED OR CANCELLED BY ANY HIGHER FORUM. THEREFO RE AT THIS STAGE THE ORDER OF THE TRIBUNAL PASSED IN EARLIER F.Y. 2003-04 IS A PPLICABLE TO THE PRESENT APPEAL. RESPECTFULLY FOLLOWING THE TRIBUNALS ORDE R PASSED IN F.Y. 2003-04 ON IDENTICAL FACTS AND ISSUE WE ARE OF THE VIEW THAT THE LD CIT(A) WAS JUSTIFIED IN SETTING ASIDE THE ORDER OF THE AO BY FOLLOWING THE ORDER OF THE TRIBUNAL PASSED IN F.Y. 2003-04. THE ORDER OF THE CIT(A) IS THUS UPHELD. 4. IN THE RESULT THE APPEAL FILED BY THE REVENUE I S DISMISSED. 5. THIS DECISION WAS PRONOUNCED IN THE OPEN COURT O N 19.04.2010 IMMEDIATELY AFTER THE HEARING WAS OVER. SD/- (SHAMIM YAHYA) ACCOUNTANT MEMBER SD/- (C.L. SETHI) JUDICIAL MEMBER DATED: 19 TH APRIL 2010 *NITASHA COPY TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR ITAT NEW DELHI. BY ORDER DEPUTY REGISTRAR