Sweet Chariot Cafe, Bangalore v. ACIT, Bangalore

ITA 849/BANG/2009 | 2005-2006
Pronouncement Date: 26-02-2010 | Result: Dismissed

Appeal Details

RSA Number 84921114 RSA 2009
Bench Bangalore
Appeal Number ITA 849/BANG/2009
Duration Of Justice 6 month(s) 5 day(s)
Appellant Sweet Chariot Cafe, Bangalore
Respondent ACIT, Bangalore
Appeal Type Income Tax Appeal
Pronouncement Date 26-02-2010
Appeal Filed By Assessee
Order Result Dismissed
Bench Allotted B
Tribunal Order Date 26-02-2010
Date Of Final Hearing 23-02-2010
Next Hearing Date 23-02-2010
Assessment Year 2005-2006
Appeal Filed On 20-08-2009
Judgment Text
PAGE 1 OF 12 ITA NOS.849 & 850/BANG/2009 1 IN THE INCOME TAX APPELLATE TRIBUNAL BANGALORE BENCH B' BEFORE DR. O K NARAYANAN VICE PRESIDENT AND SHRI GEORGE GEORGE K. J.M. ITA NO.849 & 850/BANG/2009 (ASST. YEARS 2005-06 & 2006-07) M/S SWEET CHARIOT CAF NO.15/2 RESIDENCY ROAD BANGALORE-25. - APPELLANT VS THE ASSISTANT COMMISSIONER OF INCOME TAX CIRCLE-1(1) BANGALORE. - RESPONDENT APPELLANT BY : SHRI T V SUBRAMANYA BHAT C.A. RESPONDENT BY : SMT. V S SREELEKHA D.R. O R D E R PER GEORGE GEORGE K : THESE APPEALS OF THE ASSESSEE ARE DIRECTED AGAINS T THE CONSOLIDATED ORDER OF THE CIT(A)-I DATED 21.5.2 009. THE ASSESSMENT YEARS CONCERNED ARE 2005-06 AND 2006-07. 2. SINCE COMMON ISSUE IS INVOLVED IN THESE APPEALS THEY ARE HEARD TOGETHER AND DISPOSED OF BY THIS CON SOLIDATED ORDER FOR THE SAKE OF CONVENIENCE AND BREVITY. 3. FOR BOTH THE ASST. YEARS IDENTICAL GROUNDS ARE RAISED EXCEPT FOR VARIANCE IN FIGURES. THOUGH THE RE ARE 6 GROUNDS ALL THE GROUNDS RELATE TO THE SOLITARY ISS UE NAMELY PAGE 2 OF 12 ITA NOS.849 & 850/BANG/2009 2 WHETHER THE CIT(A) IS JUSTIFIED IN CONFIRMING THE A SSESSING OFFICER'S ACTION IN NOT ALLOWING DEDUCTION OF RS.10 68 033/- AND RS.11 40 956/- RESPECTIVELY BY INVOKING SECTION 40 (A)(IA) OF THE INCOME TAX ACT ON ACCOUNT OF NON DEDUCTION OF INCOM E TAX U/S 194H OF THE ACT. 4. THE FACTS IN BRIEF ARE AS FOLLOWS:- THE ASSESSEE IS A PARTNERSHIP FIRM. IT RUNS A CA F UNDER THE NAME AND STYLE M/S SWEET CHARIOT CAF DEA LING IN FOOD BEVERAGES AND CONFECTIONERY ITEMS. FOR THE A SST. YEAR 2005-06 RETURN OF INCOME WAS FILED ON 31.10.2005 D ECLARING A TOTAL INCOME OF RS.12 07 400/-. DURING THE COURSE OF ASSESSMENT PROCEEDINGS IT WAS NOTICED BY THE ASSES SING OFFICER THAT FOLLOWING AMOUNTS WERE CLAIMED IN THE PROFIT A ND LOSS ACCOUNT IN RESPECT OF PAYMENT OF COMMISSION:- I) SALES COMMISSION AT M/S FAB MALL AIRPORT ROAD RS.5 30 110.12 II) SALES COMMISSION AT M/S FAB MALL BANNERGHATTA ROAD RS.5 37 922.95 DURING SCRUTINY IT WAS SEEN THAT THE ASSESSEE DID NOT DEDUCT TAX IN RESPECT OF COMMISSION TO M/S FAB MALL. THE AUTH ORIZED REPRESENTATIVE OF THE ASSESSEE WAS ASKED TO FURNISH EXPLANATION REGARDING NON DEDUCTION OF TDS. IN RESPONSE TO IT IT WAS STATED THAT THERE WAS A MARKETING ARRANGEMENT WITH M/S FAB MALL TO SELL ITS PRODUCTS. IT WAS SUBMITTED THAT M/S FAB M ALL PAID FOR THE SUPPLY MADE TO THEM AFTER DEDUCTING THE COMMISS ION AND PAGE 3 OF 12 ITA NOS.849 & 850/BANG/2009 3 THERE WAS NO SCOPE FOR THE ASSESSEE TO DEDUCT OR RE COVER TAX ON SUCH COMMISSION. THE CONTENTION OF THE ASSESSEE WA S NOT ACCEPTED BY THE ASSESSING OFFICER AND HENCE RS.10 5 8 033/- WAS DISALLOWED AS PER THE PROVISIONS OF SECTION 40( A)(IA) OF THE I T ACT AND ADDED BACK TO THE TOTAL INCOME. 5. SIMILARLY FOR THE ASST. YEAR 2006-07 THE ASSE SSEE FILED RETURN OF INCOME DECLARING RS.15 69 430/- ON 31.10.2006. DURING THE SCRUTINY ASSESSMENT IT WAS NOTICED THAT EXPENDITURE AMOUNTING TO RS.11 40 956/- WAS CLAIMED AS DEDUCTIO N IN THE PROFIT AND LOSS ACCOUNT. SINCE THERE WAS NON-DEDUC TION OF TAX BY VIRTUE OF THE PROVISIONS OF SECTION 40(A)(IA) TH E AMOUNT WAS DISALLOWED. THE ASSESSMENT WAS COMPLETED ON 26.12. 2008 FIXING A TOTAL INCOME OF RS.27 10 390/-. 6. AGGRIEVED BY THE ORDER OF THE ASSESSING OFFICER THE ASSESSEE HAS RAISED THE FOLLOWING CONTENTIONS/A RGUMENTS BEFORE THE CIT(A):- I) THE APPELLANT HAD NOT APPOINTED M/S FAB MALL AS AN AGENT FOR SELLING THE GOODS OF THE APPELLANT. INSTEAD THE PRODUCTS WERE SOLD TO M/S FAB MALL AT THE MAXIMUM RETAIL PRICE (MRP) AND AFTER SALES AT MRP FIXED BY THE APPELLANT M/S FAB MALL HAD DEDUCTED DISCOUNT FOR THE SALES EFFECTED BY IT AND PAID THE BALANCE TO THE APPELLANT. II) THE APPELLANT HAD DEBITED RS.10 68 033/- AND RS.11 40 956/- FOR AYS 2005-06 AND 2006-07 RESPECTIVELY TO SALES COMMISSION PAGE 4 OF 12 ITA NOS.849 & 850/BANG/2009 4 INADVERTENTLY WHICH WAS ESSENTIALLY 'DISCOUNT' AND NOT COMMISSION AT ALL. III) AS THERE WAS NO PRINCIPAL AND AGENCY RELATIONSHIP BETWEEN THE APPELLANT AND M/S FAB MALL AND SINCE THE AMOUNT DID NOT CONSTITUTE COMMISSION BUT WAS IN EFFECT DISCOUNT THE PROVISIONS OF SECTION 194H WERE NOT APPLICABLE. IV) A CONFIRMATION LETTER ISSUED BY M/S FAB MALL CLARIFIED THAT THERE WAS NO PRINCIPAL AND AGENCY RELATIONSHIP BETWEEN THEM. V) THE AO HAD DISALLOWED RS.10M68 033/- & RS.11 40 956/- U/S 40(A)(IA) OF THE I T ACT 1961. THE APPELLANT HAD NOT SHOWN THE AMOUNTS AS PAYABLE OR OUTSTANDING IN THE BALANCE SHEETS AS ON 31.3.2005 AND 31.3.2006. THE AMOUNTS IN QUESTION WERE PAID DURING THE PREVIOUS YEAR AND AS THERE WAS NO OUTSTANDING AMOUNT PAYABLE TO M/S FAB MALL AS ALLEGED COMMISSION THE DISALLOWANCE WAS NOT AS PER THE PROVISIONS OF THE ACT. VI) THE WORD 'PAID' HAS BEEN DEFINED IN SECTION 43(2) OF THE I T ACT 1961 AS 'ACTUALLY PAID OR INCURRED ACCORDING TO THE METHOD OF ACCOUNTING UPON THE BASIS OF WHICH THE PROFITS OR GAINS ARE COMPUTED UNDER THE HEAD 'PROFITS AND GAINS OF BUSINESS OR PROFESSION'. THIS DEFINITION ACCORDING TO THE APPELLANT DID NOT INCLUDE 'PAYABLE' AND AS SUCH DISALLOWANCE OF RS.10M68 033/- & RS.11 40 956/- IN AY 2005-06 AND 2006-07 WAS NOT WARRANTED. PAGE 5 OF 12 ITA NOS.849 & 850/BANG/2009 5 VII) TDS WAS ONLY ONE MODE OF RECOVERY OF TAX AS PER SECTION 202 OF THE I T ACT 1961 AND IF THE PARTY TO WHOM PAYMENT WAS MADE HAS ALREADY PAID THE TAXES DUE ON THE PAYMENTS RECEIVED BY IT NON-DEDUCTION OF TDS CANNOT BE TAKEN AS A PRETEXT TO DISALLOW THE EXPENDITURE OF RS.10 68 033/- & RS.11 40 956/- CLAIMED BY THE APPELLANT. IN OTHER WORDS SINCE M/S FAB MALL HAD ALREADY PAID TAXES DUE ON INCOME RECEIVED BY IT FROM THE APPELLANT ANY ACTION TO TAX THE SAID AMOUNT IN THE HANDS OF THE APPELLANT WOULD BE TANTAMOUNT TO TAXING THE SAME AMOUNT TWICE. A SIMILAR VIEW HAS BEEN HELD BY THE SUPREME COURT IN THE CASE OF HINDUSTAN COCA COLA BEVERAGES P LTD. V COMMISSIONER OF INCOME TAX (2007) 293 ITR 226. VIII) AS ALREADY MENTIONED IN CLAUSE (V) ABOVE THE APPELLANT HAD DISPATCHED GOODS AT MAXIMUM RETAIL PRICE (MRP) TO M/S FAB MALL AND M/S FAB MALL HAD SOLD THE SAME AT MRP AND PAID THE PROCEEDS TO THE APPELLANT AFTER DEDUCTING THE DISCOUNT. IT WAS CONTENDED THAT PURCHASE OF GOODS AT A DISCOUNT WAS NOT TO BE TREATED AS AN AGENCY. THIS VIEW HAS BEEN EXPRESSED BY THE GUJARAT HIGH COURT IN AHMEDABAD STAMP VENDORS ASSOCIATION V UNION OF INDIA (2002) 257 ITR 202. A SIMILAR VIEW HAS BEEN EXPRESSED BY THE KERALA HIGH COURT IN M S HAMEED V DIRECTOR OF STATE LOTTERIES (2001) 249 ITR 186 & KERALA STAMP VENDORS ASSOCIATION V O/O THE ACCOUNTANT GENERAL & OTHERS (2006) 282 ITR 7. IX) FINALLY THE APPELLANT ASSERTED THAT M/S FAB MALL HAD NOT ACTED AS AN AGENT AND HAD NOT PAGE 6 OF 12 ITA NOS.849 & 850/BANG/2009 6 ENTERED INTO ANY CONTRACT FOR CARRYING OUT ANY WORK WITH THE APPELLANT AND THEREFORE NO DUTY WAS CAST ON THE APPELLANT TO DEDUCT TDS ON THE DISCOUNT OF RS.10 68 033/- AND RS.11 40 956/- FOR AYS 2005-06 AND 2006-07 RESPECTIVELY. 7. THE ABOVE CONTENTION RAISED BY THE ASSESSEE DID NOT FIND FAVOUR WITH THE CIT(A) AND HE DISMISSED TH E APPEAL OF THE ASSESSEE. THE BRIEF POINTS OF THE CIT(A)'S FINDINGS/CONCLUSIONS ARE REPRODUCED BELOW FOR READY REFERENCE:- 1) NO EVIDENCE OF ANY SIGNIFICANCE HAS BEEN LED BY THE APPELLANT TO SHOW THAT THE TRANSFER OF GOODS TO FAB MALL CONSTITUTED A CONTRACT OF SALE. NO INVOICES HAVE BEEN PRODUCED THAT ARE IN THE NAME OF FAB MALL. THE SO-CALLED INVOICES PRODUCED ARE VERY BASIC BILLS THAT THE APPELLANT ACTUALLY ISSUES TO THE CONSUMERS OF ITS PRODUCTS THAT BUY THEM AT ITS OUTLETS. EVEN THESE INVOICES DO NOT BEAR THE NAME OF THE PURPORTED BUYER M/S FAB MALL. 2) THE EXTRACT OF FAB MALL'S A/C IN THE APPELLANT'S BOOKS ALSO SHOWS THAT THE APPELLANT IS MEETING ELECTRICITY CHARGES PERTAINING TO ITS OUTLETS WITHIN FAB MALL'S STORES. THIS WOULD CERTAINLY NOT BE THE CASE IF THE TITLE OF THE GOODS WERE BEING TRANSFERRED IN A CONTRACT FOR SALE. 3) IN THE ABSENCE OF ANYTHING TO SHOW THAT THE TRANSACTION CONSTITUTED A CONTRACT FOR SALE ONE WOULD HAVE TO CONCLUDE THAT THERE EXISTS A PRINCIPAL-AGENCY PAGE 7 OF 12 ITA NOS.849 & 850/BANG/2009 7 RELATIONSHIP AND THE PROVISIONS OF S.194H THEREFORE DO APPLY. 4) FROM THE FACTS OUTLINES ABOVE TOO IT IS CLEAR THAT THE ONLY THING BEING CREDITED BY THE APPELLANT TO THE A/C OF M/S FAB MALL IS SALES COMMISSION. THE ARGUMENT THAT THIS IS MERELY INCORRECT NOMENCLATURE AND THE AMOUNT ACTUALLY CONSTITUTES A DISCOUNT IS NOT BORNE OUT BY ANY CORROBORATIVE EVIDENCE AND THE ONLY SO-CALLED EVIDENCE THAT HAS BEEN PRODUCED IS SELF-SERVING IN NATURE. NO INVOICES WORTH THEIR NAME HAVE BEEN PRODUCED. EVEN THE SO-CALLED INVOICES PRODUCED DO NOT BEAR FAB MALL'S NAME NOR DO THEY REFLECT ANY DISCOUNT. SALES- RELATED DISCOUNTS IF ANY OFFERED WOULD TYPICALLY BE ON THE INVOICE AND BY THEIR VERY NATURE ARE NOT CREDITED TO THE PARTY AT THE END OF A MONTH OR IN SOME CASES AT THE END OF SEVERAL MONTHS. 5) IT ALSO SEEMS TO BE BEYOND THE REALM OF REASON THAT SALES DISCOUNTS WOULD AS A PERCENTAGE OF TOTAL SALES MONTH AFTER MONTH HOVER AROUND THE SAME PERCENTAGE WHEREAS THIS WOULD QUITE CLEARLY BE EXPECTED IN THE CASE OF PAYMENT OF A SALES COMMISSION. IN THE CASE OF THE APPELLANT AS I HAVE ALREADY POINTED OUT ABOVE THE QUANTUM OF COMMISSION AS A PERCENTAGE OF THE SALES CONTINUES TO HOVER AROUND THE SAME NUMBER MONTH AFTER MONTH. 8. ASSESSEE BEING AGGRIEVED BY THE ORDER OF THE CIT(A) IS IN SECOND APPEAL BEFORE US. PAGE 8 OF 12 ITA NOS.849 & 850/BANG/2009 8 9. IT WAS CONTENDED BY THE LEARNED AR THAT THE ASSESSEE SOLD THE GOODS TO THE FAB MALL AND THEY BE CAME THE OWNERS OF THE GOODS. IF ANY LOSS IS INCURRED DUE T O DETERIORATION IN QUALITY THE SAME WAS TO BE BORNE BY THE FAB MAL L AND NOT BY THE ASSESSEE. IT WAS SUBMITTED THAT SUCH POSITION WILL EXIST ONLY IN A SALE CONTRACT AND NOT IN AN AGENCY. AS SUCH THE PAYMENT IN QUESTION IS ONLY DISCOUNT AND NOT COMMISSION. IT W AS FURTHER CONTENDED BY THE LEARNED AR THAT FAB MALL WAS AT LI BERTY TO SELL THE PRODUCTS AFTER PURCHASING FROM THE ASSESSEE AND THE FAB MALL WAS A DEBTOR TO THE ASSESSEE. IT WAS ALSO SUB MITTED THAT DISCOUNT CAN PREVAIL AT A FIXED PERCENTAGE FROM MON TH TO MONTH AND IT IS AN OUTCOME OF THE UNDERSTANDING BETWEEN T WO PARTIES AND THIS CANNOT LEAD TO A CONCLUSION THAT THE DISCO UNT IS SALES COMMISSION. THE LEARNED AR CONCLUDED THAT IN THE I NSTANT CASE THE FAB MALL AND THE ASSESSEE HAD DEALINGS ON PRINCIPAL TO PRINCIPAL BASIS AND AS SUCH DEDUCTION CAN ONLY BE TERMED AS DISCOUNT AND NOT AS COMMISSION. 10. PER CONTRA THE LEARNED DR SUBMITTED IT IS FO R THE ASSESSEE TO PROVE THAT THE TRANSACTION BETWEEN ASSE SSEE AND FAB MALL IS THAT OF A CONTRACT OF SALE. IT WAS SUBMITT ED ON THE CONTRARY MANY OF THE MATERIAL FACTORS POINT TO A CO NTRACT OF AGENCIES RATHER THAN A CONTRACT OF SALE. IT WAS S UBMITTED THAT NO SUBSTANTIAL EVIDENCES WERE PRODUCED TO PROVE THAT IT HAD A DEALING WITH FAB MALL ON A PRINCIPAL TO PRINCIPAL B ASIS. SHE ALSO RELIED ON THE DECISIONS OF THE TRIBUNAL IN THE CASE OF DELHI PAGE 9 OF 12 ITA NOS.849 & 850/BANG/2009 9 MILK SCHEME V INCOME TAX OFFICER 8 SOT 344 (DEL.) A ND IN THE CASE OF HINDUSTAN COCA COLA BEVERAGES (P) LTD. V INCOME TAX OFFICER 97 ITD 105 (JP). 11. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSE D THE MATERIAL ON RECORD. THE SHORT QUESTION TO BE A NSWERED IS WHETHER THE AMOUNTS RETAINED BY FAB MALL ON ACCOUNT OF SALE OF ASSESSEE'S PRODUCTS IS WHETHER 'DISCOUNT' AS CONTE NDED BY THE ASSESSEE OR 'COMMISSION' OR 'BROKERAGE' AS ENUMERATED U/S 194H OF THE ACT. IN OTHER WORDS WHETHER THE FAB M ALL AND THE ASSESSEE HAD DEALINGS ON PRINCIPAL TO PRINCIPAL BAS IS. THE RELEVANT PORTION OF THE SECTION 194H IS REPRODUCED BELOW:- '194H ANY PERSON NOT BEING AN INDIVIDUAL OR A HINDU UNDIVIDED FAMILY WHO IS RESPONSIBLE FOR PAYING ON OR AFTER THE 1ST DAY OF JUNE 2001 TO A RESIDENT ANY INCOME BY WAY OF COMMISSION (NOT BEING INSURANCE COMMISSION REFERRED TO IN SECTION 194D) OR BROKERAGE SHALL AT THE TIME OF CREDIT OF SUCH INCOME TO THE ACCOUNT OF PAYEE OR AT THE TIME OF PAYMENT OF SUCH INCOME IN CASH OR BY THE ISSUE OF A CHEQUE OR DRAFT OR BY ANY OTHER MODE WHICHEVER IS EARLIER DEDUCT INCOME-TAX THEREON AT THE RATE OF [TEN] PER CENT': PROVIDED----- PROVIDED FURTHER ----- PROVIDED ALSO ------ EXPLANATION FOR THE PURPOSE OF THIS SECTION- (I) 'COMMISSION OR BROKERAGE' INCLUDES ANY PAGE 10 OF 12 ITA NOS.849 & 850/BANG/2009 10 PAYMENT RECEIVED OR RECEIVABLE DIRECTLY OR INDIRECTLY BY A PERSON ACTING ON BEHALF OF ANOTHER PERSON FOR SERVICES RENDERED (NOT BEING PROFESSIONAL SERVICES) OR FOR ANY SERVICES IN THE COURSE OF BUYING OR SELLING OF GOODS OR IN RELATION TO ANY TRANSACTION RELATING TO ANY ASSET VALUABLE ARTICLE OR THING NOT BEING SECURITIES'. 12. THE ABOVE SECTION PROVIDES FOR DEDUCTION OF TA X FROM INCOME BY WAY OF COMMISSION OR BROKERAGE. THE DEFINITION OF 'COMMISSION OR BROKERAGE' AS CONTAINE D IN THE EXPLANATION TO SECTION 194H INCLUDES ANY PAYMENT RE CEIVABLE DIRECTLY OR INDIRECTLY FOR SERVICES IN THE COURSE OF BUYING OR SELLING OF GOODS. IN OTHER WORDS TO FALL WITHIN T HE AFORESAID EXPLANATION THE PAYMENT RECEIVED OR RECEIVABLE DI RECTLY OR INDIRECTLY IS BY A PERSON ACTING ON BEHALF OF ANOT HER PERSON (I) FOR SERVICES RENDERED (NOT BEING PROFESSIONAL SERVI CES) OR (II) FOR ANY SERVICES IN THE COURSE OF BUYING OR SELLING OF GOODS OR (III) IN RELATION TO ANY TRANSACTION RELATING TO AN Y ASSET VALUABLE ARTICLE OR THING NOT BEING SECURITIES. 13. DURING THE COURSE OF ASSESSMENT PROCEEDINGS T HE ASSESSEE WAS ASKED TO EXPLAIN NON-DEDUCTION OF TDS ON COMMISSION PAYMENT TO M/S FAB MALL. THE ASSESSEE'S PAGE 11 OF 12 ITA NOS.849 & 850/BANG/2009 11 EXPLANATION BEFORE THE ASSESSING OFFICER WAS THAT I T HAD MARKETING ARRANGEMENTS WITH M/S FAB MALL TO SELL IT S PRODUCTS. FAB MALL PAID FOR THE SUPPLIES MADE TO THEM AFTER D EDUCTING THE COMMISSION. SINCE AMOUNTS WERE ALREADY DEDUCTED T HERE WAS NO SCOPE FOR THE ASSESSEE TO DEDUCT OR RECOVER ANY TAX ON SUCH COMMISSION. IN THE INSTANT CASE A PERUSAL OF THE EXTRACTS OF THE LEDGER A/CS OF M/S FAB MALL BANNERGHATTA ROAD AND M/S FAB MALL AIRPORT ROAD IN THE ASSESSEE'S BOOKS OF A/C F OR BOTH THE ASST. YEARS REVEALED THAT THE SALES TURNOVER ACHIEV ED ON BEHALF OF THE ASSESSEE WAS DEBITED TO M/S FAB MALL'S A/C. A S AND WHEN PAYMENTS WERE MADE THE SAME WERE CREDITED TO M/S F AB MALL'S A/C. AT THE END OF EACH MONTH OR IN SOME CASES A T THE END OF A FEW MONTHS PUT TOGETHER FOR BOTH THE OUTLETS IN QUE STION THE ASSESSEE HAS BEEN CREDITING SALES COMMISSION TO M/S FAB MALL'S A/C BY PASSING A JOURNAL ENTRY 'BY SALES COMMISSION FAB MALL A ROAD' OR 'BY SALES COMMISSION FAB MALL BN R OAD'. IN SHORT MERE JOURNAL ENTRIES WERE PASSED CREDITIN G LUMP SUM AMOUNTS BY WAY OF SALES COMMISSION AT THE END OF EA CH MONTH OR IN SOME CASES AT THE END OF SEVERAL MONTHS PUT TOGETHER. WE ARE OF THE VIEW THAT NO EVIDENCE OF ANY SIGNIFIC ANCE HAS BEEN LED IN BY THE ASSESSEE TO SHOW THAT THE TRANS FER OF GOODS TO FAB MALL CONSTITUTED A CONTRACT OF SALE. THE ASSES SEE HAS FAILED TO PROVE THAT HIS RELATIONSHIP WITH FAB MALL IS ON A PRINCIPAL TO PRINCIPAL BASIS. THERE HAS BEEN A MERE ASSERTION W ITHOUT ANY EVIDENCE ON THE PART OF THE ASSESSEE. THE EXTRACT OF FAB MALL'S ACCOUNT IN ASSESSEE'S BOOKS ALSO REVEALED THAT ASSE SSEE IS PAGE 12 OF 12 ITA NOS.849 & 850/BANG/2009 12 MEETING ELECTRICITY CHARGES PERTAINING TO ITS OUTLE TS WITHIN THE FAB MALL'S STORES AND AS RIGHTLY POINTED OUT BY CIT (A) THIS WOULD CERTAINLY NOT BE THE CASE IF THE TITLE OF THE GOODS WERE BEING TRANSFERRED IN A CONTRACT FOR SALE. FOR THE AFORESAID REASONS WE ARE OF THE VIEW THAT THE ORDER OF CIT(A ) IS CORRECT AND IN ACCORDANCE WITH LAW AND NO INTERFERENCE IS C ALLED FOR. 14. IN THE RESULT THE APPEALS FILED BY THE ASSESS EE ARE DISMISSED. ORDER IS PRONOUNCED ON 26TH FEBRUARY 2010. SD/- SD/- (DR. O K NARAYANAN) (GEORGE GEORGE K) VICE PRESIDENT JUDICIAL MEMBER BANGALORE DTD.26/2/2010 COPY TO : 1. THE ASSESSEE 2.THE REVENUE 3. THE CIT (A) CONCERNED.4. THE CIT CONCERNED. 5. THE DR 6. GUAR D FILE. 7. GF ITAT NEW DELHI. MSP/25.2. BY ORDER ASST. REGISTRAR ITAT BANGALORE.