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2015 (6) TMI 483 - ITAT AHMEDABAD

2015 (6) TMI 483 - ITAT AHMEDABAD - TMI - Non-deduction of tax under section 194H - AO treating the discount offered by the assessee to pre-paid distributors in the nature of "commission" - 'ássessee in default’ - Held 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-adju .....

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sessee 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 the single issue i.e., whether the ld. AO is justified in treating the discount .....

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e case are that the assessee is a telecom service provider engaged in providing services in Gujarat Circle. In the course of its business it appoints pre-paid distributors. A survey was carried in the business premises of the assessee on 18.8.2008 to ascertain whether the assessee company is deducting proper taxes at source on commission payment or not. According to the AO, during the course of survey, it is seen that the deductor committed various defaults for non-deduction and less deduction u .....

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8 190,704,484/- 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 amount is received indirectly by a person acting on behalf of another person for services rendered, it amounts .....

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.3.2010 passed under section 201(1) & 201(1A) of the I.T. Act, 1961 for AY 2008-09, 2009-10 & 2010-11. 3. Appeal to the CIT(A) did not bring any relief to the assessee. 4. The ld. counsel for the assessee at the very outset submitted that an identical issue had come up before the Hon ble Delhi High Court in assessee s own case. Hon ble Court has held that on sale of pre-paid vouchers, TDS ought to be deducted. The judgment is reported in 325 ITR 148 (Delhi). Hon ble Kerala High Court has .....

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ses 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 assessee (Idea Cellular Ltd.) proceeded on the basis that services cannot be sold and it is to be rendered. Hon ble Karnataka High Court is of the opinion that right to service can be sold and, therefore, the income ac .....

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