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TMI Blog2020 (2) TMI 152X X X X Extracts X X X X X X X X Extracts X X X X ..... (A) is justified in deciding the issue by relying upon the decision of Hon'ble Karnataka High Court in the case of 'Bharti Airtel Ltd, 372 ITR 33, as said decision of the Hon'ble Karnataka High Court has not been accepted by the Department and SLP has been filed before the Hon'ble Apex Court. (iii) Whether, on the facts and in the circumstances of the case and in law the Ld.CIT(A) is justified Jif deleting the interest u/s. 201(1A) of Rs. 3,72,11,418/- raised u/s 201(1A) of the Act, on account of nondeduction of TDS, as this non deduction has been deleted by him without appreciating that the same is also the subject matter of further appeal as mentioned above. (iv) Whether, on the facts and in the circumstances of the case and in law the Ld.CIT(A) is justified in allowing assessee's appeal by holding that the payments made to Installation Service Providers (ISP) fall within a purview of section 194C & not under in the Provision of section 194J of the I.T, Act, without appreciating the factual perspective which clearly shows that the payment made by the asses see deductor is on account of specialized technical service such as installation work of dish Antenna & i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of section 194H shall not be computed for commission paid to distributors/dealers for sale of STB and pre-paid vouchers. The Ld. AO had also issued show cause notice and called upon the assesee to explain as to why, short fall in TDS deducted on payment made to service providers for installation of dish antenna and STB u/s 194J of the I.T.Act, 1961. The assessee has filed detailed submission and argued that no TDS is applicable, in respect of discount offered to dealers for sale of STB and recharge coupons. In respect of service charges paid to service providers for installation of STB and dish antenna, it was claimed that it has rightly dedcuted TDS, as per the provision of section 194C of the Act. The Ld. AO did not convince with arguments of the assesee and computed short deduction of TDS u/s 194H, in respect of commission offered to distributors/dealers, for sale of STB and recharge coupons. The Ld. AO has also computed short deduction of TDS u/s 201(1) and 201(1A), in respect of service charges paid to service providers for installation of STB and dish antenna u/s 194J, as against the assessee application of provisions of section 194C of the I.T.Act, 1961. 4. The assessee c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bai, in ITA No.7047/Mum/2012 for AY 2010-11, but he has strongly supported order of the Ld. AO. 7. We have heard both the parties, perused the material available on record and gone through orders of the authorities below. We find that an identical issue has been considered by the co-ordinate bench of 'B' bench Mumbai, in the case of M/s Videocon d2h Ltd. vs DCIT in ITA No. 7200/Mum/2012 and 7201/Mum/2012 for AY 2010-11 and 2011-12, where under identical set of facts and on basis of similar agreement between the parties, the Tribunal held that discount offered to distributors/dealers is on the principal to principal basis which does not come under the definition of commission, as defined u/s 194H of the I.T.Act, 1961. The relevant findings of the Tribunal are as under;- 5. It is clear from the above terms and conditions of the agreement entered by the assessee which in parameteria with the terms and conditions having been discussed by the Karnataka High Court and ITAT, Ahmedabad Bench in case of Vodafone Essar Ltd., we do not find any merit in the action of the lower authorities for treating the assessee in default in respect of non-deduction of tax at source on trade discount gr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... als are provided directly at the home of the subscribers, without passing through any intermediary. The Set-Top Box at the premises of the subscribers receives such signals directly through the Dish Antenna and such signals are viewed on the television by the subscriber. As the work of installing the set-top boxes and antenna has to be carried out at various locations of the different subscribers, the assessee company has entered into a contract/ agreement with various persons [Installation Service Providers (ISPs)]. The AO on perusal of details in this regard was of the view that the work relating to installation of hardware at the customer's/subscriber's ITA No.7047/Mum/2012 and other appeals M/s. Videocon d2h Limited premises is carried out by a technically skilled person as the software is to be synchronized with the TV set to provide the DTH services and other technical services are also to be rendered. We observe that the work of installation of Set-Top Boxes and Antenna at the premises of the end-user is given as per the contract with Installation Service Providers (ISPs). The job of the Installation Service Provider is to go to the premises of the subscriber, to i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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