JITENDRA KUMAR GUPTA,BHARATPUR vs. JCIT, BHARATPUR

आयकर अपीलीय अधिकरण] जयपुर न्यायपीठ] जयपुर IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHES, JAIPUR Jh fot; iky jko] U;kf;d lnL; ,oa Jh Hkkxpan] ys[kk lnL; ds le{k BEFORE: SHRI VIJAY PAL RAO, JM & SHRI BHAGCHAND, AM vk;dj vihy la-@ITA No. 214/JP/2016 fu/kZkj.k o"kZ@Assessment Year : 2011-12 cuke Shri Jitendra Kumar Gupta The JCIT, Vs. Prop. M/s J.K. Enterprises, Range, Choburja Bazar, Bharatpur Bharatpur. LFkk;h ys[kk la-@thvkbZvkj la-@PAN/GIR No.: AHBPG8155G vihykFkhZ@Appellant izR;FkhZ@Respondent fu/kZkfjrh dh vksj ls@ Assessee by : Shri Rajendra Agarwal (C.A.) jktLo dh vksj ls@ Revenue by : Shri P. R. Meena (Addl.CIT) lquokbZ dh rkjh[k@ Date of Hearing : 16/11/2017 mn?kks"k.kk dh rkjh[k@Date of Pronouncement: 10/01/2018 vkns'k@ ORDER

PER: VIJAY PAL RAO, J.M. This appeal by the assessee is directed against order dated 21.12.2015 of CIT (A) for the assessment year 2011-12. The solitary ground raised by the assessee in this appeal is as under:- “On the facts and circumstances of the case, the learned CIT(A) has erred in confirming the addition of Rs. 9,61,610/- made by the AO u/s 40a(ia) of the I.T. Act. The appellant reserves his right to amend, add, alter, change or delete any of the grounds of the appeal, either before or during the course of hearing.”

ITA No. 214/JP/2016 Shri Jitendra Kumar Gupta Vs. JCIT, Bharatpur

distributorship of recharge coupons and sim cards of Vodafone

company. During the course of assessment proceedings, the AO noted

that the assessee has claimed in its P & L account the commission paid

to the dealers of Rs. 9,61,610/-. The AO asked the assessee why this

claim of the assessee shall not be disallowed for want of deduction tax

at source. The assessee did not dispute the fact that no TDS was

deducted during the year, however, the assessee explain that

commission is paid directly by the Vodafone company to the dealers

appointed by the company in supervision of the assessee and such

commission is debited to the assessee’s account by these company. The

TDS was deducted on commission by the company itself and credited to

the assessee’s account. Therefore, the assessee submitted that since

the commission is paid by the principal and the assessee made

accounting entries only. Since, TDS was deducted by the principal,

therefore, the liability to deduct tax at source do not arise. The AO did

not accept this contention and explanation of the assessee and observe

that the Vodafone company has debited commission in the account of

the assessee and the deducted TDS on the said amount. The assessee

has passed on the commission to additional dealers from his books of

ITA No. 214/JP/2016 Shri Jitendra Kumar Gupta Vs. JCIT, Bharatpur

accounts without deducting TDS. Accordingly as per the Section 194H

of the Act the assessee has failed to comply with the obligation to

deduct tax and consequently the AO disallowed the said claim of Rs.

9,61,610/- u/s 40a(ia) of the I.T. Act. The assessee challenged the

action of the AO before the ld. CIT(A). The ld. CIT(A) held that the

provisions of section 194H of the Act are applicable in the case of the

assessee on commission payment. Since, there is failure on the part of

the assessee to deduct tax at source on such payments made on

account of commission to the dealers, therefore, the provisions of

section 40a(ia) of the Act are attracted. Accordingly the ld. CIT(A) has

confirmed the disallowance made by the AO.

the year under consideration the assessee received amount of Rs.

28,31,494/-from Vodafone Essar Digilink Limited which includes

commission of Rs. 9,61,810/- paid to dealers directly by the Vodafone

Essar Digilink Limited. Thus, the ld. AR has submitted that the assesss

has not made any payment of commission but the commission was paid

directly by the Vodafone Essar Digilink Limited after deduction of TDS

u/s 194H on the whole amount of commission included the commission

paid to the additional dealers. Since the whole amount debited to the

ITA No. 214/JP/2016 Shri Jitendra Kumar Gupta Vs. JCIT, Bharatpur

account of the assessee, therefore, the assessee has carried out the

necessary books entries to show that the income as well as expenditure

instead of only net commission pertain to the assessee. In support of

his contention he has relied upon the decisions of the Coordinate Bench

of this Tribunal in case of Vidyut Nigam Limited Vs. DCIT 123 TTJ 888

as well as decision in case of Lazmi Narayan Agarwal Vs. DCIT ITA No.

395/JP/2014.

upon by the ld. AR of the assessee are based on the decision of the

Hon’ble Allahabad High Court in case of CIT vs. M/s Vector Shipping

Services Pvt. Ltd. which has been over ruled by the Hon’ble Supreme

Court in the latest decision dated 03.05.2017 in case of M/s Palam Gas

Service vs. CIT 394 ITR 300. He has relied upon the orders of the

authorities below.

material on record. There is no dispute that the assessee has shown

income of Rs. 28,31,494/- in profit and loss account towards

commission received from Vodafone Essar Digilink Limited. The

assessee has also claimed expenditure of Rs. 9,61,610/- towards

commission paid to additional dealers. The Vodafone Essar Digilink

ITA No. 214/JP/2016 Shri Jitendra Kumar Gupta Vs. JCIT, Bharatpur

Limited deducted TDS u/s 194H of the Act for which certificate is issued

in the name of the assessee and therefore, the entire amount of TDS

deducted by the Vodafone Essar Digilink Limited is available for credit of

the assessee. Once the entire amount shown as income in the P&L

account and corresponding TDS is also shown in the account of the

assessee for which the assessee has claimed credit then assessee can

be take a plea that the said commission was directly paid by the

Vodafone Essar Digilink Limited to the additional dealers and the

assessee has only carried out the books entries. As per the agreement

between the parties the additional dealers are entitled for receiving the

commission from the assessee. Though they may be sharing

commission which is the only income of the assessee as well as the

additional dealers received from Vodafone Essar Digilink Limited

however once the chain of distributorship is flowing from top to bottom

and the share of the commission of the additional dealers is passing

through the assessee as a distributor will be regarded as commission

paid on behalf of the assessee. Therefore, the TDS deducted by the

Vodafone Essar Digilink Limited from the total amount of the

commission will not absolve the obligation of the assessee to deduct

TDS u/s 194H of the Act in respect of the amount which was paid to the

ITA No. 214/JP/2016 Shri Jitendra Kumar Gupta Vs. JCIT, Bharatpur

additional dealers may be directly transferred by the parent company.

Therefore, in the commercial sense the entire amount of commission

will be treated as income of the assessee. The entire amount is shown

by the assessee in the P&L account and corresponding TDS deducted is

also available for credit of the assessee and consequently the payment

of commission to the additional dealers as an expenditure against the

said income is liable for deduction of tax at source. Hence, the

provisions of section 194H of the Act are applicable in the case of the

assessee.

decision of the Hon’ble Allahabad High Court in case of CIT vs. M/s

Vector Shipping Services Pvt. Ltd. 356 ITR 642 has been overruled by

the Hon’ble Supreme Court in case of M/s Palam Gas Service vs. CIT

(supra) in paras 15 to 18 as under:- “15. We approve the aforesaid view as well. As a fortiorari, it follows that Section 40(a)(ia) covers not only those cases where the amount is payable but also when it is paid. In this behalf, one has to keep in mind the purpose with which Section 40 was enacted and that has already been noted above. We have also to keep in mind the provisions of Sections 194C and 200. Once it is found that the aforesaid Sections mandate a person to deduct tax at source not only on the amounts payable but also when the sums are actually paid to the contractor, any person who does not adhere to this statutory obligation has to suffer the consequences which are

ITA No. 214/JP/2016 Shri Jitendra Kumar Gupta Vs. JCIT, Bharatpur

stipulated in the Act itself. Certain consequences of failure to deduct tax at source from the payments made, where tax was to be deducted at source or failure to pay the same to the credit of the Central Government, are stipulated in Section 201 of the Act. This Section provides that in that contingency, such a person would be deemed to be an assessee in default in respect of such tax. While stipulating this consequence, Section 201 categorically states that the aforesaid Sections would be without prejudice to any other consequences which that defaulter may incur. Other consequences are provided under Section 40(a)(ia) of the Act, namely, payments made by such a person to a contractor shall not be treated as deductible expenditure. When read in this context, it is clear that Section 40(a)(ia) deals with the nature of default and the consequences thereof. Default is relatable to Chapter XVIIB (in the instant case Sections 194C and 200, which provisions are in the aforesaid Chapter). When the entire scheme of obligation to deduct the tax at source and paying it over to the Central Government is read holistically, it cannot be held that the word 'payable' occurring in Section 40(a)(ia) refers to only those cases where the amount is yet to be paid and does not cover the cases where the amount is actually paid. If the provision is interpreted in the manner suggested by the appellant herein, then even when it is found that a person, like the appellant, has violated the provisions of Chapter XVIIB (or specifically Sections 194C and 200 in the instant case), he would still go scot free, without suffering the consequences of such monetary default in spite of specific provisions laying down these consequences. The Punjab & Haryana High Court has exhaustively interpreted Section 40(a(ia) keeping in mind different aspects. We would again quote the following paragraphs from the said judgment, with our complete approval thereto: "26. Further, the mere incurring of a liability does not require an assessee to deduct the tax at source even if such payments, if made, would require an assessee to deduct the tax at source. The liability to deduct tax at source under Chapter XVII-B arises only 7

ITA No. 214/JP/2016 Shri Jitendra Kumar Gupta Vs. JCIT, Bharatpur

upon payments being made or where so specified under the sections in Chapter XVII, the amount is credited to the account of the payee. In other words, the liability to deduct tax at source arises not on account of the assessee being liable to the payee but only upon the liability being discharged in the case of an assessee following the cash system and upon credit being given by an assessee following the mercantile system. This is clear from every section in Chapter XVII. 27. Take for instance, the case of an assessee, who follows the cash system of accounting and where the assessee who though liable to pay the contractor, fails to do so for any reason. The assessee is not then liable to deduct tax at source. Take also the case of an assessee, who follows the mercantile system. Such an assessee may have incurred the liability to pay amounts to a party. Such an assessee is also not bound to deduct tax at source unless he credits such sums to the account of the party/payee, such as, a contractor. This is clear from Section 194C set out earlier. The liability to deduct tax at source, in the case of an assessee following the cash system, arises only when the payment is made and in the case of an assessee following the mercantile system, when he credits such sum to the account of the party entitled to receive the payment. 28. The government has nothing to do with the dispute between the assessee and the payee such as a contractor. The provisions of the Act including Section 40 and the provisions of Chapter XVII do not entitle the tax authorities to adjudicate the liability of an assessee to make payment to the payee/other contracting party. The appellant's submission, if accepted, would require an adjudication by the tax authorities as to the liability of the assessee to make payment. They would then be required to investigate all the records of an assessee to ascertain its liability to third parties. This could in many cases be an extremely complicated task especially in the absence of the third party. The third party may not press the claim. The parties may settle the dispute, if any. This is an 8

ITA No. 214/JP/2016 Shri Jitendra Kumar Gupta Vs. JCIT, Bharatpur

exercise not even remotely required or even contemplated by the section." 16. As mentioned above, the Punjab & Haryana High Court found support from the judgments of the Madras and Calcutta High Courts taking identical view and by extensively quoting from the said judgments. 17. Insofar as judgment of the Allahabad High Court is concerned, reading thereof would reflect that the High Court, after noticing the fact that since the amounts had already been paid, it straightaway concluded, without any discussion, that Section 40(a)(ia) would apply only when the amount is 'payable' and dismissed the appeal of the Department stating that the question of law framed did not arise for consideration. No doubt, the Special Leave Petition thereagainst was dismissed by this Court in limine. However, that would not amount to confirming the view of the Allahabad High Court (See V.M. Salgaocar & Bros. (P.) Ltd. v. CIT [2000] 243 ITR 383/110 Taxman 67 (SC) and Supreme Court Employees Welfare Association v. Union of India [1989] 4 SCC 187 . 18. In view of the aforesaid discussion, we hold that the view taken by the High Courts of Punjab & Haryana, Madras and Calcutta is the correct view and the judgment of the Allahabad High Court in Vector Shipping Services (P) Ltd. (supra) did not decide the question of law correctly. Thus, insofar as the judgment of the Allahabad High Court is concerned, we overrule the same. Consequences of the aforesaid discussion will be to answer the question against the appellant/assessee thereby approving the view taken by the High Court.” Accordingly, in the facts and circumstances of the case as well as in

view of the decision of Hon’ble Supreme Court in case of M/s Palam Gas

Service vs. CIT (supra), we do not find any error or illegality in the

orders of the authorities below. 9

ITA No. 214/JP/2016 Shri Jitendra Kumar Gupta Vs. JCIT, Bharatpur

In the result, the appeal filed by the assessee is dismissed. Order pronounced in the open court on 10/01/2018 Sd/- Sd/- ¼Hkkxpan ½ ¼fot; iky jko½ (Bhagchand) (Vijay Pal Rao) ys[kk lnL;@Accountant Member U;kf;d lnL;@Judicial Member Tk;iqj@Jaipur fnukad@Dated:- 10/01/2018. *Santosh. आदेश की प्रतिलिपि अग्रेf’ात@ब्वचल वf जीम वतकमत वितूंतकमक जवरू 1. vihykFkhZ@The Appellant- Shri Jitendra Kumar Gupta, Bharatpur. 2. izR;FkhZ@ The Respondent- JCIT, Range, Bharatpur. 3. vk;dj vk;qDr@ CIT 4. vk;dj vk;qDr@ CIT(A) 5. विभागीय प्रतिनिधि] आयकर अपीलीय अधिकरण] जयपुर@क्त्ए प्ज्Aज्ए Jंपचनत. 6. xkMZ QkbZy@ Guard File {ITA No. 214/JP/2016} vkns'kkuqlkj@ By order,

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