HIGH COURT OF MADHYA PRADESH : AT JABALPUR ITA No : 87 of 2015 Commissioner of Income Tax, Bhopal - V/s - MP Minerals Private Limited ITA No : 88 of 2015 Commissioner of Income Tax, Bhopal - V/s - MP Minerals Private Limited Present : Hon ble Shri Justice Rajendra Menon. Hon ble Shri Justice K.K. Trivedi. -------------------------------------------------------------------------------------- In both cases. Shri Sanjay Lal, counsel for appellant. -------------------------------------------------------------------------------------- Whether approved for reporting: Yes / No. JUDGMENT 18/11/2015 This is revenue s appeal under section 260-A of Income Tax Act calling in question tenability of orders dated 27.5.2015, passed by Appellate Tribunal in ITA Nos. 208/Jab/2013 and 210/Jab/2013. 2- As common question of law and facts are involved, both these appeals are being decided by this common order. 3- Assessee is Company engaged in manufacture and trading of minerals namely Pyrophilite, Bauxite, Diaspore, Clay Refractory Products and Calcination thereof. During course of assessment, it was found that assessee company had manufactured and supplied I T Nos :: 87 / 2015 & 88 / 2015. 2 Commissioner of Income Tax, Bhopal Vs. MP Mineral Private Limited some branded product directly to certain third person or party on behalf of its customer M/s ACE Calderys Limited and has billed same directly to third party as per instructions of its customer. It was said that as difference between billing price and contract price excluding excise/sales tax has been retained by customer as rate difference, assessee was asked to explain as to why deduction should not be treated as assessee s default in respect of non-deduction of TDS on payment made to M/s ACE Calderys Limited. Assessing Officer having added this amount on account of non-deduction of TDS, but Commissioner (Appeals) and learned Appellate Tribunal having held that transaction is in nature of principal to principal and not principal to agent basis, this appeal has been filed. 4- Even though Shri Sanjay Lal, learned counsel for appellant, referred to section 194-H and various other provisions to say that relationship between assessee and M/s ACE Calderys Limited is that of principal and agent and as amount paid to M/s ACE Calderys Limited is in form of commission or brokerage, deduction of TDS was mandatory. We find that this aspect of matter has been gone into in detail, both by Commissioner and Appellate Tribunal and concurrent finding recorded is that appellant company manufactures branded product on behalf of M/s ACE Calderys Limited under company s supervision and brand name and sells these branded product by supplying them to customers of M/s ACE Calderys Limited. Even though Assessing Officer held M/s ACE Calderys Limited to be broker of assessee and liable for deduction under section 194-H, appellate authorities found that assessee company sells branded product to M/s ACE Calderys Limited at mutually agreed price and appellant s liability in respect of product sold ceases as soon as products are dispatched from premises of appellant for delivery. It was found that product order, dispatch instructions etc are given by M/s ACE Calderys Limited, and even particulars of party to whom supply is made is given by M/s ACE Calderys Limited alongwith quantity to be I T Nos :: 87 / 2015 & 88 / 2015. 3 Commissioner of Income Tax, Bhopal Vs. MP Mineral Private Limited dispatched, billing rate etc. Thereafter, in invoice prepared for payment of Excise, M/s ACE Calderys Limited is shown as consignee and person to whom purchase is made is shown as purchaser of M/s ACE Calderys Limited. appellant company raises commercial invoices in name of M/s ACE Calderys Limited on mutually agreed prices. It was also found that documents required for Excise Act, Central Sales Act and General Sales Tax are issued to appellant by M/s ACE Calderys Limited, who was responsible for making payment of commercial invoices raised by appellant company and responsibility of settlement of any dispute for loss etc was solely on M/s ACE Calderys Limited. Infact after evaluating various aspects of matter, it has been found that M/s ACE Calderys Limited is not broker and, therefore, interference has been made. 5- It was also tried to be indicated that Tribunal has committed error by not deciding revenue s ground of appeal to say that without appreciating fact orders passed under section 201(1) and 201(1-A) dated 28.3.2011 were not for years 2008-2009, 2009-2010 and 2010-2011, but this has also been interfered with. We have considered submissions and we find that no interference is called for. 6- This concurrent finding recorded by Commissioner and learned Appellate Tribunal are based on due appreciation of material available on record and no substantial question of law arises for consideration. 7- Accordingly, appeals stand dismissed. ( RAJENDRA MENON ) ( K.K. TRIVEDI ) JUDGE JUDGE Aks/- Commissioner of Income Tax, Bhopal v. MP Minerals Private Limited