Income Tax Appellate Tribunal - Mumbai
Airport Retail P.Ltd, Faridabad vs Deputy Commissioner Of Income Tax ... on 12 February, 2019
IN THE INCOME TAX APPELLATE TRIBUNAL "A"
BENCH, MUMBAI
BEFORE HON'BLE SH. SANDEEP GOSAIN, JM &
HON'BLE SH. G. MANJUNATHA, AM
आयकरअपीलसं./ I.T.A. No. 5111/Mum/2017
(निर्धारणवर्ा / Assessment Year: 2011-12)
Airport Retail Pvt. Ltd. Dy. Commissioner of
338, 3rd Floor, Om Income Tax Circle-
Shubham Tower, Neelam बिधम/ 12(1)(1),
Bata Road, NIT, Vs. Mumbai
Faridabad, Haryana Pin-
Pin-121001
स्थायीलेखासं ./ जीआइआरसं ./ PAN No. AAFCA9796H
(अपीलाथी/Appellant) : (प्रत्यथी / Respondent)
अपीलाथीकीओरसे/ Appellant by : Shri Ali Asger
Rampurawala, AR
प्रत्यथीकीओरसे/Respondentby : Shri Satishchandra
Rajore, DR
सुनवाईकीतारीख/
: 15.01.2019
Date of Hearing
घोषणाकीतारीख /
: 12.02.2019
Date of Pronouncement
आदे श / O R D E R
Per Sandeep Gosain, Judicial Member:
The present Appeal filed by the assessee is against the order of Ld. CIT (Appeal) - 20, Mumbai dated 04.04.17 for AY 2011-12.
2
I.T.A. No. 5111/Mum/2017 Airport Retail Pvt. Ltd.
2. The solitary contested ground raised by the assessee relates to challenging the order of Ld. CIT(A) in confirming the disallowance of Rs. 2,383,571/- made by AO u/s 40(a)(ia) of the I.T. Act on the alleged ground that the assessee has failed to deduct tax at source u/s 194H of the Act in respect of charges paid for collection and deposit of foreign exchange by authorized money collector /exchanger into the assessee's EEFC account.
3. Ld. AR appearing on behalf of the assessee submitted before us that this ground is covered by the order of Hon'ble ITAT in ITA No. 158 & 1762/Mum/14 (for AY 2008-09 & 2009-
10) and 4816/Mum/15 (for AY 2010-11) in assessee's own case, wherein the identical ground raised in the present appeal has already been decided on merits.
4. On the other hand, Ld. DR fairly agreed to the contention of Ld. AR that the issue is covered in favour of assessee.
5. We have heard counsels for both the parties and we have also perused the material placed on record as well as the orders 3 I.T.A. No. 5111/Mum/2017 Airport Retail Pvt. Ltd.
passed by revenue authorities. We find that the identical ground has already been decided by the Coordinate Bench of Hon'ble ITAT in ITA No. 158 & 1762/Mum/14 (for AY 2008-09 & 2009-
10) and 4816/Mum/15 (for AY 2010-11) in assessee's own case. The operative portion of the order of Hon'ble ITAT passed in ITA No.158 & 1762/Mum/14 (for AY 2008-09 & 2009-10) is contained in para no. 25 of its order and the same is reproduced below:-
25. We have considered the submissions of the parties and perused the material available on record. As far as payment to bank towards credit card charges is concerned, as per the decision relied upon by the learned Authorised Representative cited supra, provisions of section 194H are not applicable as the bank makes payments to the assessee after deducting certain fees and it is not a commission. In view of the aforesaid, no disallowance under section 40(a)(ia) can be made in respect of payments made to bank towards credit card charges. As far as the amount paid towards charges for conversion of forex into cash, we are of the view that the matter needs re- examination in view of assessee's submissions that there is no principal-agent relationship between the assessee and Thomas Cook, 4 I.T.A. No. 5111/Mum/2017 Airport Retail Pvt. Ltd.
therefore, provisions of section 194H is not applicable. We have noticed, though, in the course of the proceedings before the DRP, the assessee had submitted copies of agreement with bank as well as with Thomas Cook India Ltd., the authorities concerned have not properly examined the issue to ascertain the fact whether there is any principal-agent relationship between the assessee and Thomas Cook India Ltd. We, therefore, set aside the issue to the file of the Assessing Officer for fresh consideration after providing adequate opportunity of hearing to the assessee. Ground no.2, is allowed and ground no.3 is allowed for statistical purposes.
6. After having gone through the facts of the present case as well as considering the orders passed by revenue authorities and Hon'ble ITAT as mentioned above in assessee's own case, we find that the identical issue has already been decided by the Hon'ble ITAT in ITA No. 158 & 1762/Mum/14 (for AY 2008-09 & 2009-10) and 4816/Mum/15 (for AY 2010-11) in assessee's own case. Therefore, respectfully following the decision of the Coordinate Bench of Hon'ble ITAT and in order to maintain 5 I.T.A. No. 5111/Mum/2017 Airport Retail Pvt. Ltd.
judicial consistency, we apply the same findings in the present case which are applicable mutatis mutandis in the present case.
7. While arriving at the aforesaid decision, we are guided by the decision of Hon'ble Supreme Court in the case of Radhaswamy Satsang Vrs. CIT (1992) 193 ITR 321 (SC) that rule of consistency needs to be followed. Thus the above ground raised by the assessee stands allowed for statistical purposes. We order accordingly.
8. In the net result, the appeal filed by the assessee stands allowed for statistical purposes with no order as to cost.
Order pronounced in the open court on 12th Feb, 2019.
Sd/- Sd/-
(G. Manjunatha) (Sandeep Gosain)
ले खासदस्य / Acountant Member न्याययकसदस्य / Judicial Member
मुंबई Mumbai;यदनां कDated : 12.02.2019
Sr.PS. Dhananjay
6
I.T.A. No. 5111/Mum/2017
Airport Retail Pvt. Ltd.
आदे शकीप्रनिनिनिअग्रे नर्ि/Copy of the Order forwarded to :
1. अपीलाथी/ The Appellant
2. प्रत्यथी/ The Respondent
3. आयकरआयुक्त(अपील) / The CIT(A)
4. आयकरआयुक्त/ CIT- concerned
5. यवभागीयप्रयतयनयध, आयकरअपीलीयअयधकरण, मुंबई/ DR, ITAT, Mumbai
6. गार्ड फाईल / Guard File आदे शधिुसधर/ BY ORDER, उि/सहधयकिंजीकधर .
(Dy./Asstt.Registrar) आयकरअिीिीयअनर्करण, मुंबई/ ITAT, Mumbai