K.S. Jhaveri, J. - (1.) By way of this appeal, the appellant has challenged the judgment and order of the Tribunal whereby the Tribunal has dismissed the appeal of the department.
(2.) Counsel for the appellant has contended that in another case between the same parties, in the case of Pr. Commissioner of Income Tax vs. Sikar & Jhunjhunu Zila Dugdh Utpadak Sahakari Sangh Ltd. in DB Income Tax Appeal No.32/2016, decided on 16.11.2016, this Court has observed as under: "2. Counsel for the appellant has framed following substantial questions of law for consideration: "1. Whether on the facts and in the circumstances of the case the ITAT is justified in law in holding that payment of Rs.42,41,575/- made to RCDF is not liable for TDS u/s 194H or u/s 194J of the IT Act, 1961?" "2. Whether on the facts and in the circumstances of the case the ITAT is justified in law in holding that payment of Rs.54,73,480/- made to various mil societies on account of milk price difference, is not liable for TDS u/s 194H, ignoring the substance of the matter that such milk societies provide service of facilitating purchase of milk by the assessee from cattle owners, and are liable for TDS?" "3. Whether on the facts and in the circumstances of the case the ITAT is justified in law in holding that payment of Rs.4,52,833/-, debited to Profit and Loss account under the head sales promotion/advertisement made to RCDF and others is not liable for TDS?" 3. Counsel for the appellant has taken us to the reasoning given by the CIT (Appeals) and contended that the issue which reads as under: "In lieu of the Services Charges the RCDF would be providing the following services to the Unions: marketing Support as per requirement. Coordination with the state/central government and financial institutions for various schemes. Finalising rate contracts for purchase of raw material for cattlefeed plants, packing material for milk and milk products and cattlefeed etc. Assist in plant management, engineering and quality assurance projects. Preparation and monitoring of Integrated Business Planning and related financial analysis. (i) Use of "SARAS" brand. (ii) Development and launching of new products. (iii) MIS/system support." (iv) "It is evident from the perusal of aforesaid documents that the amount was paid by the appellant to RCDF for various services rendred by RCDF to appellant. The services was partly in the nature of managerial services and partly for promotion and marketing of the products of the appellant. RCDF itself treated the receipts as "Service Charges". The payment made by the appellant was not in the nature of reimbursement of expenses incurred by RCDF. It is clearly mention in the aforesaid letter dated 04.11.1997 that RCDF will create a reserve of maximum of 10% of its receipts for incurring specific expenditure for the member societies. The excess amount spent would be recovered from the member societies. It is not known that how much amount was spent by RCDF on behalf of the appellant in this year. The payment is made by the appellant at a fix percentage of its turnover, irrespective of the expenditure incurred by RCDF. It is also evident from para 7 of the assessment order that Rs.3,62,111/- was further paid to RCDF as "sales promotion expenses". Hence, the amount debited under the head "cess" was not paid for any sales promotion or marketing activities undertook by RCDF. Considering all this facts and circumstances of the case, I am of the view that the amount paid by the appellant to RCDF is in the nature of "fees for professional or technical services" on which provisions of section 194J is applicable. Since the appellant has not deducted the tax at source from such payment, the expenditure is not allowable u/s 40(a)(ia) of the Act." "However, I agree with the contention of the ld. AR that provisions of sectioin 40(a)(ia) are not applicable on the payments made before the end of the previous year, as held by the Hon'ble ITAT, Jaipur in the case of JVVNL . A.O. is directed to verify the actual payments made by the appellant to RCDF during the year and allow the expenditure to that extent." 4. The Tribunal reads order dated 21.07.2015, in para 3.13, has observed as under: "I have heard the rival contentions and perused the materials available on record. Apropos the payment to RCDF cess, it has not been demonstrated by the Department that any managerial services in this connection have been rendered to assessee by RCDF qua this amount. RCDF is an apex cooperative body and cess is paid to it by virtue of federal structure in Rajasthan cooperative set up. Thus as far as assessee's business is concerned, there is no rendering of any managerial services by RCDF as alleged by the AO u/s 194H and upheld ld. CIT(A) u/s194J. Since there is no rendering of any services and the payment is not made for any managerial services to RCDF, therefore, payment can neither be held as liable for TDS u/s 194H of the Act as commission/brokerage as held by the AO nor u/s 194J for rendering any managerial services as held by the ld. CIT(A). In view thereof, we hold that assessee's impugned payment to RCDF are not liable for TDS. This ground of the assessee is allowed."
(3.) Taking into consideration the decision of aforesaid appeal, no substantial question of law arises in the present appeal for consideration of this Court.;