TMI Blog2015 (6) TMI 483X X X X Extracts X X X X X X X X Extracts X X X X ..... cal purposes. - ITA Nos.2868 to 2870/Ahd/2010 - - - Dated:- 15-5-2015 - S/Shri G. D. Agrawal and Rajpal Yadav,JJ. For the Petitioner: Shri Ronat Doshi, AR For the Respondent: Shri B. L. Yadav, Sr.DR ORDER PER Shri Rajpal Yadav, Judicial Member. Present three appeals are directed at the instance of assessee against the separate orders of even date i.e. 10.8.2010 passed by the ld. CIT(A) in AYs 2008-09 to 2010-11. The grounds of appeal taken by the assessee in all these three years are not in consonance of Rule-8 of I.T.A.T. Rules, 1963 rather they are descriptive and argumentative in nature. It has taken 4 main grounds and in each main ground, it has taken three sub-grounds. However, its grievance revolves around t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... worked out the commission payment as under :- Sl.No. F.Y. Amount of commission Rs. 1. 2007-08 190,704,484/- 2. 2008-09 270,113,473/- 3. 2009-10(upto Feb 10) 291,471,745/- Total 752,289,702/- According to the AO section 194H contemplates that for commission or brokerage includes any payment received or receivable directly or indirectly by a person acting on behalf of another person for services rendered ., The definition of commission also states that even if the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssessee in the case of Vodafone Essar Cellular Limited vs. ACIT 332 ITR 255. Hon ble Calcutta High Court has also decided against the assessee in the case of Bharti Cellular Ltd. Vs. ACIT 244 CTR 185 (Cal). All these High Courts concluded that discount should be considered as commission and same would be liable for with-holding tax u/s 194H of the Act. He further contended that recently Hon ble Karnataka High Court has considered all these decisions in the cases of Bharti Airtel Ltd., Vodafone Essar South Ltd., and Tata Teleservices Ltd. Rendered in ITA Nos.637-744, 256-263, 158-163 of 2013. The Hon ble Court observed that Hon ble Kerala High Court in the case of Vodafone Essar Cellular Ltd. and Hon ble Delhi High Court in the case of asses ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e consideration of the facts and circumstances, we find that there is divergence of opinion on this issue amongst Hon ble High Courts. The controversy would ultimately be silenced by the Hon ble Supreme Court. Therefore, we deem it appropriate to set aside the impugned orders and restore these issues to the file of ld. AO for re-adjudication. The ld. AO shall take into consideration the decision of Hon ble Supreme Court in assessee s own case for Delhi Circle or another case law available at that point of time. It is needless to say that observations made by us will not impair or injure the case of AO and will not cause any prejudice to the difference/explanation of the assessee. The ld. AO shall provide opportunity of hearing to the assess ..... X X X X Extracts X X X X X X X X Extracts X X X X
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