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TMI Blog2018 (4) TMI 333X X X X Extracts X X X X X X X X Extracts X X X X ..... th appeals have common grounds and assessee is same therefore, for the sake of convenience, we would like to dispose of both appeals by way of a common order. In these appeals following Grounds have taken: "1. The Ld. CIT(A) has erred on facts and in law in deleting the demand raised u/s.201(1)/201(1) of the IT Act on non deduction of TDS of Rs. 9,04,74,072/- (Including interest u/s.201(1A) of the Act) for A.Y. 2011-12 & Rs. 9,90,67,994/- (including interest u/s.201(1A) of the Act) for A.Y. 2012-13 on the discount offered to pre-paid distributors. Inspite of the fact that the provisions of section 194H of the IT Act apply to the assessee. 2. The Ld.CIT(A) has erred on facts and in law in deleting the demand raised u/s.201(1)/201(1) of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... avail the opportunity of cross examination of the expert in this regard. 3.4 It was observed by the A.O. that the assessee was not deducting TDS u/s.194] (fees for technical services) on the "IUC charges" paid by the assessee company, and treated assessee as "assessee in default" u/s.201(1)/201(1A) of the Act. After going through the various appellate stages, the Hon'ble Supreme Court issued directions to the A.O. to take an expert opinion in the matter to determine the human intervention w.r.t. the said payments. The AO took expert opinion in the matter, which was cross examined by the assessee. In this regard, the Assessing Officer finalized the assessment proceedings based on the "expert opinion and its cross examination" in which ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ionship between the assessee and the distributors, hence the assessee has treated the amount paid to pre paid distributors as "discount" and not as commission. The assessee has mentioned the agreement entered in F.Y.2007-08 between the distributors in this regard, according to which there is "principal- principal" relationship between the two. 3.7 Assessee further stated that since no actual payment has been paid to the distributor, hence, provision of Section 194H are not applicable. 3.8 But ld. AO was not satisfied with the contention of the assessee and made an addition of Rs. 20,13,87,000/-. 4. Against the said order assessee preferred first statutory appeal before the ld. CIT(A) who partly allowed the appeal of the assessee. 5. Now ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ions of section 194H of the Act on the discount offered to pre-paid distributors is concerned. Ld. AR stated that arrangement between the appellant and its prepaid distributors was on a 'principal to principal basis', wherein the Appellant sold its prepaid talk time to its distributors, at a discount and the distributors in turn sold the same to the retailers. Retailers thereafter sold the same to the ultimate consumers. Accordingly, it was stated that the assessee accounted for revenues on the basis of the sale proceeds realized i.e. price at which the pre-paid talk time was sold to the distributor. Therefore, the appellant neither booked nor paid any commission to its prepaid distributors and hence, the question of deducting tax at source ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at this tribunal's Kolkata bench in ITA No.l864/Kol/2012 Vodafone East Ltd. (assessee's sister concern) vs. ACIT decided on 15.09.2015 examines all fine points in case of identical roaming charges in cellular telephony parlance to conclude that the same are not liable for TDS deduction." 13. With regard to TDS deduction on assessee's pre-paid voucher is concerned. Co-ordinate Bench held as under: "It emerges that the instant issue in assessee's former appeal has been rendered academic since a co-ordinate bench accepted its corresponding ground raised in ITA No.386/Ahd/2011 decided on 07.07,2015 preferred against the CIT(A)'s order dated 31/12/2010(supra). It is further evident that the said ratio very well applies in ass ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on-jurisdictional High Courts and that we do not have the benefit of guidance by Hon'ble jurisdictional High Court. 9. This issue is covered, in favour of the assessee, by Hon'ble Karnataka High Court's common judgement in the cases of Bharti Airtel Limited, Tata Teleservices Limited and Voadfone South Limited, reported as Bharti Airtel Limited vs. DCJT [(2015) 372 ITR 33 (Kar)]" 14. Ld. AR also cited an order of co-ordinate bench in assessee's own case in ITA No.386/Ahd/2011 for Asst Year 2008-09. Co-ordinate Bench has held that assessee is not liable to deduct tax u/s.194H and 194J. Therefore, assessee is not in default for such TDS. 15. On the principle of consistency and respectfully following the order of co-ordinate ..... X X X X Extracts X X X X X X X X Extracts X X X X
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