TMI Blog2017 (5) TMI 710X X X X Extracts X X X X X X X X Extracts X X X X ..... provisions under section 194H of the Act. Although the Tribunal has remitted the matter back to the file of the Assessing Officer to verify the manner in which the books of account are maintained and whether the sale discount is reflected in the books. However, in principle the Tribunal has deleted the addition holding that there is no payment of commission, hence, the provisions of section 194H are not attracted. Various Benches of the Tribunal in the assessee's own case have taken a consistent view holding that the TDS provisions under section 194H are not applicable in respect of sale of SIM cards/recharge coupons at discounted rates to the distributors. Once, the substratum for the levy of penalty has eroded there is no question for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e coupons and SIM cards. In the case of post-paid services the SIM card is given free of cost and the subscribers pay as per the bill generated after use of services. A survey action under section 133A of the Act was conducted at the business premises of the assessee on April 23, 2008 for verification of the compliances under the TDS provisions. During the course of survey it was found that the assessee-company was paying commission to all the dealers except distributors. It was explained that the sale is made to the distributor at MRP less trade margin and target based incentives which are given to them in the form of top up. The invoices raised on distributors and franchise are at MRP minus the applicable trade margins and inclusive of ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2,71,24,546 3. 2009-10 5,74,61,489 4. 2010-11 6,35,89,628 5. 2011-12 5,81,69,952 6. 2012-13 6,61,20,451 Aggrieved by the order levying penalty under section 271C, the assessee filed appeals for the respective assessment years before the Commissioner of Income-tax (Appeals). The Commissioner of Income-tax (Appeals) rejected the contentions of the assessee and upheld the orders levying penalty under section 271C of the Act. Now, the assessee is in second appeal before the Tribunal impugning the findings of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f Bharti Airtel Ltd. v. Deputy CIT reported as [2015] 372 ITR 33 (Karn) has concluded that the provisions of section 194H are not attracted in respect of sale of SIM cards/recharge coupons at discount rates to the distributors. The learned authorised representative submitted that the Patna Bench of the Tribunal in the assessee's own case in I. T. A. Nos. 76-77/Pat/2012 for the assessment years 2009-10 and 2010-11 decided on November 30, 2016 has taken a similar view by following the ratio laid down by the hon'ble Karnataka High Court. The Patna Bench of the Tribunal has not remitted the issue back for further verification. Similarly, the Ahmedabad Bench of the Tribunal in the assessee's own case in I. T. A. No. 386/Ahd/2011 for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e heard the submissions made by the representatives of rival sides and have perused the orders of the authorities below. We have also considered the various decisions on which the learned authorised representative of the assessee has placed reliance. The penalty under section271C has been levied in respect of violation of the provisions of section 194H of the Act. Additions were made in the hands of the assessee under section 201(1) and 201(1A) of the Act on account of the alleged non- deduction of tax at source on the payment of commission to distributors. The quantum addition travelled up to the Tribunal. The co-ordinate Bench of the Tribunal in I. T. A. Nos. 817, 818, 1577, 1578, 1961 and 1962/Pune/2013 for the assessment years 2007-08 t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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