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2018 (5) TMI 1912 - AT - Income TaxTDS u /s 194H and 194C - payment made towards incentives on prepaid Sim cards sold to distributors and also on the roaming charges paid to other service providers - assessee in default for not deducting tax at source and consequently demand was created on the assessee u/s 201(1)/(1A) - nature of transaction between the assessee telecommunication services provider and its distributors in so far as it relates to sale of prepaid SIM cards - HELD THAT:- TDS on incentives paid to distributors on sale of cards u/s 194 H - sale of prepaid sim cards by the assessee to the distributors are on principal to principal basis and hence out side the ambit of section 194H of the Act. Therefore, the assessee was not required to deduct tax on the same and, therefore, could not be held to be an assessee in default for not deducting tax at source. The demand raised on the assessee u/s 201(1) and 201(1A) of the Act is, therefore, directed to be deleted. TDS on roaming charges u/s 194C - CIT(A), while adjudicating the issue, noted that the issue of tax deduction at source on the domestic roaming charges had been examined by the Hon'ble Supreme Court in the case of CIT vs M/s Bharati Cellular [2010 (8) TMI 332 - SUPREME COURT] opining that it was necessary to find out if any human intervention was involved at any stage so as to determine whether the services rendered were in the nature of technical services warranting tax deduction at source u/s 194J of the Act. no grievance against the aforesaid directions of the Ld.CIT(Appeals) since the Ld.CIT(Appeals) had only restored the issue to the Assessing Officer for considering the same afresh in the light of the directions of the Hon'ble Apex Court in the case of M/s Bharati Cellular [2010 (8) TMI 332 - SUPREME COURT] on the issue of TDS on roaming charges and also on the alternate contention raised by the assessee of no tax to be deducted at source where payees have paid taxes on the same, for verification of facts relating to the same
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