Home Case Index All Cases Income Tax Income Tax + AT Income Tax - 2017 (9) TMI AT This
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2017 (9) TMI 1835 - AT - Income TaxTDS u/s 194H - commission/discount allowed on the prepaid recharge coupons to the distributors - survey under section 133A of the Act was conducted in the business premise of the assessee i.e., erstwhile Vodafone Essar Cellular Limited - HELD THAT:- In view of the above decisions of the Hon’ble High of Judicature for Rajasthan Bench at Jaipur as well as Hon’ble Karnataka High Court, we are of the considered opinion that the sale of SIM cards/recharge coupons at discounted rate to distributors is not commission and therefore not liable to TDS under section 194H of the Act. However, we find that while deciding similar issue, the Hon’ble Kerala High Court has taken a different view, as the relevant observations are reproduced hereinabove, and decided the issue against the assessee. In the absence of any jurisdictional High Court decision brought to the notice of the Bench, we are of the considered opinion that other High Court’s decisions are binding on the Tribunal to take a decision, but, since there exist two contradictory decisions other High Courts, we are of the opinion that the law laid down by the Hon’ble Supreme Court in the case of CIT v. Vegetable Products Ltd. [1973 (1) TMI 1 - SUPREME COURT] which says that if a statutory provision is capable of more than one view, then the view which favours the tax payer should be preferred, we decide the issue in favour of the assessee by following the decisions of the Hon’ble High of Judicature for Rajasthan Bench at Jaipur as well as Hon’ble Karnataka High Court. However, in the orders of authorities below, there was no elaborate discussion with regard to the sale discount offered by the assessee and maintained in the books of accounts of the assessee. Accordingly, as has been held by the Hon’ble Karnataka High Court, we also remit the matter back to the file of the Assessing Officer only to find out as to how the books are maintained and how the sale price and the sale discount is treated and whether the sale discount is reflected in the books of the assessee or not. If the accounts are not reflected as set out in BHARTI AIRTEL LTD. AND OTHERS VERSUS DEPUTY COMMISSIONER OF INCOME-TAX AND COMMISSIONER OF INCOME TAX, BANGALORE [2014 (12) TMI 642 - KARNATAKA HIGH COURT] the provisions of section 194H of the Act is not attracted. - ground raised by the assessee is allowed for statistical purposes TDS u/s 194C or 194J - manpower charges - HELD THAT:- As decided in own case [2015 (11) TMI 1451 - ITAT CHENNAI] [2015 (11) TMI 1451 - ITAT CHENNAI] held relying on CIT vs. Bharti Cellular Ltd [2008 (10) TMI 321 - DELHI HIGH COURT] held that the rule of noscitur a sociis is clearly applicable and this would mean that the word 'technical' would take colour from the words 'managerial' and 'consultancy' in between which it is sandwiched. Elaborating further, the Delhi High Court observed that it is obvious that the expression 'manager' and consequently 'managerial service' has a definite human element attached to it and similarly, the services 'consultancy' also necessarily intends human intervention. It was held by the Delhi High Court that the expression 'technical services' thus necessarily involves 'human element' or what is now a days fashionably called 'human interface'. In the case of Bharti Cellular Ltd (supra) before the Delhi High Court, the facility provided by MTNL and other companies to the assessee for interconnection/port access was one which was provided technically by the machines and since it did not involve any human interface, the Delhi High Court held that the same could not be regarded as 'technical services' as contemplated under S.194J Liability of TDS u/s 194J on roaming charges paid to other telecom operators - HELD THAT:- Respectfully following the decision of the Coordinate Benches of the Tribunal in assessee’s own case for earlier assessment years [2015 (10) TMI 1461 - ITAT CHENNAI] , we set aside the order of the ld. CIT(A) on this issue and hold that he roaming charges paid by the assessee will not fall under the category of ‘fees for technical services’ and therefore, the provisions of section 194J of the Act would not be attracted in the case of the assessee. Since sections 201(1) and 201(1A) of the Act are consequential, they will also not be applicable to the case of the assessee. Thus, the ground raised by the assessee is allowed.
|