IN INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHES, JAIPUR BEFORE: SHRI KUL BHARAT, JM & SHRI VIKRAM SINGH YADAV, AM ITA No. 804/JP/15 Assessment Year : 2010-11 Asstt. Commissioner of cuke Shri Shailendra Garg, C/o M/s Income tax, Circle-6, Jaipur Vs. Garment Craft India (p) Ltd. F-47, Malviya Industrial Area, Jaipur PAN No. ACQPG 4440 E Appellant Respondent Assessee by : Shri Anil Kr. Sharma (CA) Revenue by :Shri O.P. Bateja ( Addl.CIT) Date of Hearing : 27.09.2016 Date of Pronouncement : 27/09/2016. vkns'k@ ORDER PER SHRI VIKRAM SINGH YADAV, A.M. This is appeal filed by Revenue against order of Ld. CIT(A)-II, Jaipur dated 24.09.2014 wherein Revenue has taken following grounds of appeal: On facts and in circumstances of case and in law ld. CIT (A) has erred in : (1.1) deleting disallowance made by AO u/s 40(a)(ia) by treating discount shown by assessee as commission and for not deducting TDS on same u/s 194H of IT Act, 1961. (1.2) holding that there was relationship of seller and buyer whereas AO has specifically discussed this issue wherein addition was made only ITA No/ 804/JP/15 ACIT, Circle-6, Jaipur vs. Shri Shailendra Garg, Jaipur to extent wherein commission was paid on booking of advertisement space. (2) deleting addition of Rs. 7,25,672/- made on account of depositing PF/ESI payment beyond prescribed time despite fact that as per section 36(1)(va) employees contribution should have been deposited in time as prescribed in relevant law. Section 43B permits delayed payment is paid before filing of OI as per section 139(1) in case of employer s contribution not in case of employee s contribution. 2. In ground No.1, ld. CIT(A) has given his findings as under: I have perused facts of case, assessment order and submissions of appellant. It has been stated by appellant that this issue is covered in his favour by order of CIT(A)-II, Jaipur in case of (late) father of appellant Shri Bhim Sain Garg in A.Y. 2007-08 & 2008-09 and also in case of appellant in A.Y. 2009-10 (Appeal No. 523/11-12 dated 07.12.2012). In these appeal orders, issue has been decided in favour of appellant by relying upon decision of ITAT, Cuttack Bench in case of ACIT vs. Samaj (2001) 77 ITD 358 wherein ITAT held that this payment to advertisement agencies was not covered u/s 194H since this transaction between assessee and agencies was entered into on principal to principal basis. Respectfully following above orders, addition made by Assessing Officer on account of disallowance u/s 40(a)(ia) is not sustained as relationship of appellant with advertisement agencies is one of seller and buyer respectively and discount given to advertising agencies is not commission or brokerage within meaning of section 194H. This ground is allowed. 2.1 It is noted that Coordinate Bench vide its order in appeal no. 325/JP/12 dated 13.02.2015 in case of appellant s father from whom appellant has inherited business has decided issue in favour of assessee. relevant findings are as under: In consideration of entirety of facts and circumstances, we hold that amount paid by way of discount to advertisement agencies, springs from relationship on principal to principal basis and does not constitute commission as contemplated by provisions of section 194H of 2 ITA No/ 804/JP/15 ACIT, Circle-6, Jaipur vs. Shri Shailendra Garg, Jaipur Act. In view thereof, we see no infirmity in order of ld. CIT(A) in holding that provisions of section 40(a)(ia) of Act are not applicable and thereby deleting disallowances. order of ld. CIT(A) is upheld. 2.2 We have heard rival contentions of both parties and perused material available on record. Undisputedly, there is no change in facts and circumstances of case and ld CIT(A) has allowed relief following past assessment years where matter has been decided in favour of appellant s father from whom assessee has inherited same business. By respectfully following decision of Coordinate Bench referred supra, we see no infirmity in order of ld CIT(A). revenue s ground is dismissed. 3. In respect of ground No.2, ld. CIT(A) has given his findings stating that Admittedly, ESI and PF contribution has been paid by appellant, in all instances, before due date of filing return of income u/s 13(1). This fact is therefore, not in dispute. In view of judgements of Rajasthan High Court in case Jaipur Vidhyut Vithran Nigam Ltd. 265 CTR 62 (Raj), CIT vs. State Bank of Bikaner and Jaipur (2014)99 DTR 131 (Raj.) and other case laws on this issue, claim of appellant is allowable. We see no infirmity in order of ld CIT(A). revenue s ground is dismissed. In result appeal filed by Revenue is dismissed. 3 ITA No/ 804/JP/15 ACIT, Circle-6, Jaipur vs. Shri Shailendra Garg, Jaipur Order pronounced in open court on 27/09/2016. Sd/- Sd/- (KUL BHARAT) (VIKRAM SINGH YADAV) Judicial Member Accountant Member Jaipur Dated:- 27/09/2016 Pillai Copy of order forwarded to: s 1. Appellant- ACIT, Circle-6, Jaipur 2. Respondent- Shri Shailendra Garg, Jaipur 3. CIT II, Jaipur 4. CIT(A)-II, Jaipur 5. DR, ITAT, Jaipur 6. Guard File (ITA No.804 /JP/2015) By order, Assistant. Registrar 4 Asstt. Commissioner of Income tax, Circle-6, Jaipur v. Shailendra Garg