Income Tax Appellate Tribunal - Delhi
Mother Dairy India Ltd., New Delhi vs Department Of Income Tax on 3 October, 2009
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 M/s. Mother Dairy India Ltd.
Ward - 50(4), Room No. 501, Vs. Now amalgamated with Mother
5th Floor, Laxmi Nagar Distt. Dairy Fruit & Vegetables P. Ltd.,
Centre, Delhi Patparganj, New Delhi
Appellant by : Shri G.S. Sahota, Sr. DR
Respondent by : Ms. Manju Bhardwaj, AR
ORDER
PER: C.L. SETHI, J.M. In this appeal, filed by the revenue against the order 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 Act") for the F.Y. 2004-05, the following grounds have been raised by the revenue:-
"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 assessee and the concessionaires is a principal to principal transaction and not principal to agent transaction (2) holding that the payments made by the assessee to its concessionaires for selling milk/products is not "commission"
as defined under section 194 H of the IT Act, 1961 (3) not correctly appreciating the terms of the agreement and conduct of the parties that the relationship between the ITA No. 4926/Del/2009 assessee and concessionaires is that of the principal to principal."
2. We have heard both the parties and have carefully 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 concessionaires by treating these margins as "commission" within the meaning of section 194 H of the Act. The AO also charged interest u/s. 201(1A) on the aforesaid tax liability. In the order passed u/s. 201(1)/201(1A) on 12th March 2009, the AO has stated that identical order was also made for the F.Y. 2003-04 on 31.03.2008 and though the stand of the AO has not been accepted by the Hon'ble Income Tax Appellate Tribunal (ITA no. 2975/Del/2008 before the ITAT, Delhi Benches "D", New Delhi order being dated 12.12.2008) by holding that the transaction between the assessee and the concessionaires is one between two principal to which the provisions of section 194 H would not apply, the order of the Tribunal has not been accepted by the department and an appeal u/s. 260A before the Hon'ble Delhi High Court has been filed by the department. From the observation 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 next F.Y. 2004-05. It is also not in dispute that the Tribunal has accepted assessee's case by holding that the provisions of section 194 H does not apply to the present case. The order of Page 2 of 3 ITA No. 4926/Del/2009 the Tribunal in earlier F.Y. 2003-04 has not yet been either set aside or modified or cancelled by any higher forum. Therefore, at this stage, the order of the Tribunal passed in earlier F.Y. 2003-04 is applicable to the present appeal. Respectfully following the Tribunal's order 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 is dismissed.
5. This decision was pronounced in the open court on 19.04.2010 immediately after the hearing was over.
Sd/- Sd/-
(SHAMIM YAHYA) (C.L. SETHI)
ACCOUNTANT MEMBER JUDICIAL MEMBER
Dated: 19TH April, 2010
*Nitasha
Copy to:
1. Appellant
2. Respondent
3. CIT
4. CIT(A)
5. DR, ITAT, New Delhi.
By Order
Deputy Registrar
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