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2019 (8) TMI 726 - AT - Income TaxTDS u/s 194H - on discount extended to its pre-paid distributors on distribution of prepaid services - pre-paid cheques for SIM - short deduction of TDS - HELD THAT:- Admittedly the legal issue as far as the Tribunals and authorities within the territorial jurisdiction of the Karnataka High Court and the Rajasthan High Court are concerned, there is no doubt that the issue stands concluded in favour of the assessee. Admittedly for the Tribunal’s and the authorities which are in the territorial jurisdiction of the Kerala High Court, Delhi High Court and the Calcutta High Court are concerned, the issue can be considered to be settled against the assessee. Apex Court in the case of CIT Vs Vegetable Products [1973 (1) TMI 1 - SUPREME COURT] , CIT Vs Madho Prasad Jatia [1976 (8) TMI 3 - SUPREME COURT] , CIT Vs J.K. Hosiery Factory [1986 (3) TMI 4 - SUPREME COURT] has held that in case of divergent view interpretation which favours the assessee need to follow. Thus, in case of cleavage of opinions, the issue is well settled that in the absence of decision of the jurisdictional High Court, the binding precedent for the Tribunals and authorities would be the decisions in favour of the assessee not only on the principles of ambiguity but also on the principle that these decisions are latest in point of time. Accordingly, the legal issue on facts to be established stands concluded in favour of the assessee. Accordingly, the 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. 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. - decided in favour of the assessee TDS u/s 194J - default for non-deduction of tax at source on roaming charges paid by it to other service providers - HELD THAT:- We have heard the rival submissions and perused the material available on record. It is seen that the Co-ordinate Bench in THE DCIT (TDS) , VERSUS M/S IDEA CELLULAR LTD. [2018 (6) TMI 1646 - ITAT CHANDIGARH] considered an identical appeal of the Revenue and concluded that the payments made for interconnection are not fees for rendering any technical services as envisaged in section 194J. Therefore, no tax is deductible at source u/s 194J on payment of roaming charges to the OTOs and the assessee therefore cannot be treated as an assessee in default. Accordingly, in the peculiar facts and circumstances of the present case in the absence of any infirmity having been pointed out by the Revenue in the order, we find no merit in the departmental appeal. The grounds, accordingly, are dismissed.
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