matter of fact and matter

The assessee has preferred urgent appeal against the order dated 30.05.2017 passed by the LD. Commissioner of Income-tax (Appeals)-13, New Delhi (abbreviated as “L.D. Commissioner”) u/s 250 (abbreviated “Act”) of the Income-tax Act, 1961, whereby L.D. The Commissioner removed the excess of Rs. 1,64,02,845/- and 67,68,768/- done by AO.

The assessee had e-filed his return of income on 28.09.2012 declaring a loss of Rs. (-) 4,18,78,678/-, which came under investigation and resulted in the assessment of the income of the assessee by passing an assessment order u/s 143 at (-) 1,87,07,069/-. 3) The making of the Act and in addition to Rs. 1,64,02,845/- as on 31.03.2012 outstanding for payment of trade creditors and Rs. 67,68,768/- due to non-deduction of TDS for payment of marketing expenses.

Against the said addition/assessment order, the assessee filed an appeal before the LD. Commissioner, who confirmed the same by impugned order.

Aggrieved by the impugned order, the Revenue Department has appealed immediately.

We have heard the parties and perused the material available on record. The Revenue Department has raised the following grounds of appeal:

• that ld CIT (A) has erred on law and facts by not appreciating the action of AO in respect of addition made under section 68 of IT Act. 1,64,02,845/- towards business creditor outstanding for payment as on 31.03.2012 as per Balance Sheet of the assessee’s company.
• That Ld.CIT(A) has erred on law and facts by not appreciating the action of AO in respect of excess of Rs. 67,68,768/- due to non-deduction of TDS on payment of marketing expenses.
• That the order of Ld.CIT(A) is false and not tenable on the basis of facts and law.
• That the grounds of appeal are without prejudice to each other.
• That the appellant desires to add, change, modify or omit any ground(s) of the appeal raised above at the time of hearing.

The court is deciding this appeal on the ground.

Ground no. 1: Ground No. 1 The Revenue Department claimed that the CIT (Appeals) erred on law and facts by not appreciating the action of the AO in respect of addition made under section 68 of the Act. 1,64,02,845/- towards the business creditor outstanding for payment as on 31.03.2012 as per the balance sheet of the assessee company and hence, the order under challenge is distorted, unreasonable and against the facts and circumstances of the case and is liable to It should be set aside on this basis alone.

The Court observed from the orders passed by the authorities that the total amount of Rs. 1,64,02,845/- on the basis of which was added by the AO under section 68 of the Act, this includes an amount of Rs.98,16,753/- only for business creditors and the balance amount includes provision for fixed liabilities . Expenses due and to be reimbursed to employees. In support of his contention, the assessee also filed confirmation of balance amount received from creditors on 20.03.2015. However, it is a fact that the AO had completed the assessment only on 19.03.2015. It was also claimed by the assessee that the assessee had furnished the purchase register, ledger accounts, names and addresses of all the creditors as on 31.01.2015, but the AO exercised his powers under section 131 to verify these parties. No effort was made. or 133(6) of the Act. Otherwise also no question has been raised as to the genuineness of the purchase to which the trade balance relates. The assessee also filed complete bank statements for purchases of four quarters of the year and copy of DVAT return. It is clear from this that the payment was made through banking channels only. It was also claimed by the assessee that as the AO has accepted the trading results and hence, no addition is necessary for rejection of the purchase concerned. Keeping in view the above facts, L.D. The commissioner removed the joint in the hand.

We have given our due consideration to the above factual position and the determination made by the LD. Commissioner. The aforesaid facts remained unchanged before us and otherwise we did not find any material and/or any plausible reason to contradict the conclusion drawn by the LD. Commissioner. As a result, Ground No. 1 has been rejected.

2 . coming on^Ra Ground, which relates to making addition of Rs. 67,68,768/- due to non-deduction of TDS for payment of marketing expenses, which was waived off by the LD. Commissioner. It was claimed by the assessee that as the assessee had made a payment to Facebook Ireland Inc (abbreviated “FII”), which had no Permanent Establishment („PE‟) in India and hence, the payment was made in India and Ireland. In view of Article 7 of the DTAA, it was not chargeable to tax in India for advertising services. In support of his contention, the assessee has also relied on various judgments including the case of Yahoo India Pvt. Ltd. Vs. DCIT (2011) 11 Taxmann.com 431, As relied upon by Ld. Also before us the AR, in which it is clearly held that in the absence of any permanent establishment (‘PE’) of the deductor, the deductor is not liable to deduct tax at source from the payment made for online advertising services. It was also claimed by the assessee that Equalization Levy was introduced to tax the income of foreign e-commerce companies from India for which an individual was required to pay more than Rs. 1,00,000/- in a year to a non-resident, who does not have a permanent establishment in India, can withhold tax at 6% of the gross amount, actually effective only from 1.6.2016 and earlier there were no online advertisements Subject to deduction of tax at source.

The Court has carefully considered the facts and circumstances of the case and observed that L.D. The Commissioner, considering the aforesaid claim of the assessee and analyzing the provisions of sections 9 and 195 of the Act, held that the DTAA between India and Ireland provides that the profits of the foreign enterprise shall be taxable only if it has carried on business in India. Ho. Through a Permanent Establishment („PE‟) located therein. The Ld.Commissioner also observed that the FII has certified that it has no Permanent Establishment („PE‟) in India and is a resident of Ireland for taxation purposes. ld The commissioner eventually concluded that the FIIs were not liable to tax on payments made for advertising services.

The above facts remain undisputed before the Court and otherwise also we do not find any material and/or any reason to the contrary to be considered against the conclusion drawn by the LD. Commissioner. As a result, Ground No. 2 has also been rejected.

Ground no. 3 to 5 are formal in nature, so no independent judgment is required.

conclusion

The court dismissed the petition of the Revenue Department.

acit-vs-lenskart-solution-pl-itat-delhi

related