Income Tax Appellate Tribunal - Jaipur
Acit, Sikar vs Sikar & Jhunjhunu Zila Dugdh Utpadak ... on 11 January, 2017
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IN THE INCOME TAX APPELLATE TRIBUNAL,
JAIPUR BENCHES , JAIPUR
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BEFORE: SHRI BHAGCHAND, AM & SHRI KUL BHARAT, JM
vk;dj vihy la-@ITA No. 950/JP/2016
fu/kZkj.k o"kZ@Assessment Year : 2013-14
The ACIT cuke M/s. Sikar & Jhunjhunu Zila Dugdh Utpadak
Circle- Sikar Vs. Sahakari Sangh Ltd.
Sikar V&P: Palsana, Distt. Sikar
LFkk;h ys[kk la-@thvkbZvkj la-@PAN/GIR No.: AABAS 0852L
vihykFkhZ@Appellant izR;FkhZ@Respondent
jktLo dh vksj ls@ Revenue by: Shri R.A Verma, Addl. CIT -DR
fu/kZkfjrh dh vksj ls@ Assessee by : Shri P.C. Parwal, CA
lquokbZ dh rkjh[k@ Date of Hearing : 09/01/2017
?kks"k.kk dh rkjh[k@ Date of Pronouncement : 11 /01/2017
vkns'k@ ORDER
PER BHAGCHAND, AM
The Revenue has filed an appeal against the order of the ld. CIT(A)- III, Jaipur dated 23-08-2016 for the assessment year 2013-14 raising therein following ground of appeal.
(i). On the facts and in the circumstances of the case, the ld. CIT(A) erred in deleting disallowance of Rs. 1,69,68,809/- holding that payment to milk societies on account of milk price difference is not liable for TDS u/s 194H ignoring that such milk societies provide service of 2 ITA No. 950/JP/2016 The ACIT, Circle- Sikar vs. M/s. Sikar Jhunjhunu Zila Dugdh Utpadak Sahakari Sangh Ltd.
.
facilitating purchase of milk by the assessee from cattle owners and are liable for TDS.'' 2.1 At the outset of hearing, the ld. AR of the assessee relied on recent order dated 14-09-2016 of the ITAT, Coordinate Bench, Jaipur in assessee's own case in ITA No. 33/JP/2016 for the assessment year 2012- 13 which has been decided against the Revenue. For the sake of convenience, the observation of ITAT Jaipur Bench in the case of the assessee is as under:-
''2.1 At the outset of the hearing, the ld. AR of the assessee submitted that the issues raised by the Revenue in this appeal are covered vide order dated 04-03-2016 of ITAT Coordinate Bench in assessee's own case (in ITA No. 87/JP/2015 for the assessment year 2011-12 and in ITA No. 96/JP/2015 of Revenue for the assessment year 2011-12). The ld. AR further submitted that the ld. CIT(A) has granted the relief to the assessee on the basis of decision of the ITAT Coordinate Bench in assessee's own case for the assessment year 2008-09 in ITA No. 277/JP/2013 - assessee and in ITA No. 383/JP/2013 - Revenue by observing at para 4.3. of his order which is reproduced as under:-
''4.3 I have carefully considered the facts of the case and the submission o the ld. AR . AO made the disallowance of Rs. 1,77,66,242/- by holding that payment of milk price purchase difference to milk societies is payment of commission and therefore, assessee is liable for deduction of tax at source u/s 194H which it failed to deduct. The ld. AR argued that total bill for milk purchase and margin is raised by the societies itself and milk price purchase difference represents margin of profit. Further, the similar disallowance was made in A.Y. 2008-09 which has been deleted by the Hon'ble ITAT vide its order dated 14-07-2015. It is seen 3 ITA No. 950/JP/2016 The ACIT, Circle- Sikar vs. M/s. Sikar Jhunjhunu Zila Dugdh Utpadak Sahakari Sangh Ltd.
.
that the Hon'ble ITAT in assessee's own case for A.Y. 2008- 09 wherein similar disallowance was made, decided this issue in favour of the assessee by holding as under:-
''Apropos payment of milk price difference, the assessee society does not purchase milk from cattle owner as mistakenly held by ld. AO. Since the liability has been fastened under misconception of facts, we hold that this payment also is not liable u/s 194H of the Act. In view thereof, second ground of the assessee with regard to disallowance u/s 40(a)(ia) stands allowed.'' Respectfully following the same, the disallowance made by the AO is deleted.'' 2.2 The ld. DR relied on the order of the AO.
2.3 We have heard the rival contentions and perused the materials available on record. It emerges from the record that in the case of the assessee, relief has been granted by the ld.
CIT(A) on the basis of the decision of ITAT Coordinate Bench in assessee's own case (supra). Hence, respectfully following the decision of Coordinate Bench in assessee's own case (supra), we dismiss the appeal of the Revenue.'' 2.2 In this appeal of the assessee, the ld. CIT(A) deleted the disallowance made by the AO u/s 40(a)(ia) of the Act by observing as under:-
''4.3 I have carefully considered the facts of the case and the submission of the ld. AR. AO made the disallowance of Rs. 1,69,68,809/- by holding that payment of milk price purchase difference to milk societies is payment of commission and therefore, assessee is liable for deduction of 4 ITA No. 950/JP/2016 The ACIT, Circle- Sikar vs. M/s. Sikar Jhunjhunu Zila Dugdh Utpadak Sahakari Sangh Ltd.
.
tax at source u/s 194H which it failed to deduct. The ld. AR argued that total bill for milk purchase and margin is raised by the societies itself and milk price purchase difference represents margin of profit. Further, the similar disallowance was made in A.Y. 2008-09 which has been deleted by the Hon'ble ITAT vide its order dated 14-07-2015.
It is seen that the Hon'ble ITAT in assessee's own case for A.Y. 2008-09 wherein similar disallowance was made, decided this issue in favour of the assessee by holding as under:-
''Apropos payment for milk price difference, the assessee society does not purchase milk from cattle owner as mistakenly held by ld. AO. Since the liability has been fastened under misconception of facts, we hold that this payment also is not liable u/s 194H of the Act. In view thereof, second ground of the assessee with regard to disallowance u/s 40(a)(ia) stands allowed.'' Similarly, the Hon'ble ITAT vide order dated 4-03-2016 for A.Y. 2006-07 to 2010-11 in para no. 25 held that assessee is not liable for deduction of TDS.
I have gone through the order of the ITAT and facts of the case before me. There were no change in the facts of both the year. Thus by respectfully following the order of ITAT, since the assessee is not liable for deductions of tax at source u/s 194H, the disallowance made by the AO u/s 40(a)(ia) is deleted.'' 2.3 During the course of hearing, the ld. DR relied on the order of the AO.5 ITA No. 950/JP/2016
The ACIT, Circle- Sikar vs. M/s. Sikar Jhunjhunu Zila Dugdh Utpadak Sahakari Sangh Ltd.
.
2.4 We have heard the rival contentions and perused the materials available on record. It emerges from the records that in the case of the assessee, relief has been granted by the ld. CIT(A) on the basis of the decision of ITAT Coordinate Bench in assessee's own case (supra). Hence, respectfully following the decision of Coordinate Bench in assessee's own case (supra), we dismiss the appeal of the Revenue. 3.0 In the result, appeal of the Revenue is dismissed.
Order pronounced in the open court on 11 /01/2017.
Sd/- Sd/- ¼dqy Hkkjr½ ¼HkkxpUn½ (KUL BHARAT) (Bhagchand) U;kf;d lnL; /Judicial Member ys[kk lnL;@Accountant Member Tk;iqj@Jaipur fnukad@Dated:- 11 /01/ 2017 *Mishra
vkns'k dh izfrfyfi vxzfs "kr@Copy of the order forwarded to:
1. vihykFkhZ@The Appellant- The ACIT, Circle-Sikar, Sikar
2. izR;FkhZ@The Respondent- M/s Sikar & Jhunjhunu Zila Dugdh Utpadak Sahakari Sangh Ltd. Sikar
3. vk;dj vk;qDr¼vihy½@ CIT(A).
4. vk;dj vk;qDr@ CIT,
5. foHkkxh; izfrfuf/k] vk;dj vihyh; vf/kdj.k] t;iqj@DR, ITAT, Jaipur
6. xkMZ QkbZy@ Guard File (ITA No. 950/JP/2016) vkns'kkuqlkj@ By order, lgk;d iathdkj@ Assistant. Registrar