TMI Blog2017 (10) TMI 1527X X X X Extracts X X X X X X X X Extracts X X X X ..... 15, ITA No. 293/JP/2014 - - - Dated:- 6-10-2017 - SHRI BHAGCHAND, AM AND SHRI KUL BHARAT, JM For the Revenue : Shri Varinder Mehta (CIT) For the Assessee : Shri Arun Maheshwari Ms. Ketki Mittal (CA) ORDER PER SHRI KUL BHARAT, JM. These three appeals two by the Revenue i.e. in ITA No. 953/JP/2016 977/JP/2015 pertaining to the Assessment Year 2014-15 2013-14 and appeal of the assessee in ITA No. 293/JP/2014 pertaining to the Assessment Year 2011-12 are directed against the order of Ld. CIT (A)-3, Jaipur dated 19/08/2016, 23/10/2015 18/02/2014 respectively. 2. Since the identical grounds have been raised and similar issues are involved in all these appeals. All these appeals were taken up together and are being disposed of by way of consolidated order for the sake of convenience and brevity. First, we take up Revenue s appeal in ITA No. 953/JP/2016 pertaining to the Assessment Year 2014-15. In this appeal, the Revenue has raised the following grounds of appeal:- 1. On the facts and in the circumstances of the case, whether the assessee is liable to deduct TDS u/s 194H of the Income Tax Act, 1961 as the relation betwee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g same as 'Principal to Principal transaction'. iv. The facts and circumstances of assesses case are on parity with our ITAT judgment in the case of Tata Tele Services, which we have to respectfully follow. v. In view of the facts, circumstances, rival submission and material available on record assessee is not liable for deduction u/s 194H. Therefore we reverse the orders of lower authorities on these issues and delete the demand. Similar view has been taken by the Hon'ble Jurisdictional Tribunal in the case of Tata Teleservices (ITA No. 309/JP/2012, 502, 503, 504 505/JP/2011, order dated March 13, 2015) and Bharti Hexacom (ITA No. 656/JP/2010 order dated June 12, 2015). My own judgment in assessee's case for AY 2011-12 2012-13 on same matter i.e. TDS on discount, appeal no. 776/JPR/ 13-14 438/JPR/14-15 order dated 24.09.2015 and 23.10.2015. Respectfully following the above orders of Hon'ble ITAT Jaipur CIT(A)-3 Jaipur's. I find that no tax is deductible u/s. 194H of the Act on discount allowed to the Distributor. Since the facts of this year are the same as in AY 2012-13 2013-14 ground no. 1 2 are allowed and decided i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... artment In favour of assessee and against the department -- -- -- 7. 540/2009 In favour of assessee and against the department In favour of assessee and against the department -- -- -- 8. 1/2014 In favour of assessee and against the department In favour of assessee and against the department In favour of assessee and against the department In favour of assessee and against the department In favour of assessee and against the department 9. 2/2014 In favour of assessee and against the department In favour of assessee and against the department In favour of assessee and against the department In favour of assessee and against the department In favour of assessee and against the department 10. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Against the Department and in favour of assessee -- -- -- 19. 170/2015 Against the Department and in favour of assessee Against the Department and in favour of assessee -- -- -- 20. 171/2015 Against the Department and in favour of assessee Against the Department and in favour of assessee -- -- -- 21. 195/2015 Against the Department and in favour of assesse Against the Department and in favour of assessee -- -- -- 22. 08/2016 Against the Department and in favour of assessee Against the Department and in favour of assesse -- -- -- 23. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assesse Against the Department and in favour of assesse Against the Department and in favour of assesse Against the Department and in favour of assesse Against the Department and in favour of assessee 32. 102/2016 Against the Department and in favour of assessee Against the Department and in favour of assessee Against the Department and in favour of assessee Against the Department and in favour of assessee Against the Department and in favour of assesse 33. 103/2016 Against the Department and in favour of assesse Against the Department and in favour of assesse Against the Department and in favour of assesse Against the Department and in favour of assesse Against the Department and in favour of assesse 34. 104/2016 Against the Department and in favour of assesse Against ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ainst the Department and in favour of assessee Against the Department and in favour of assesse -- -- 43. 210/2016 Against the Department and in favour of assessee Against the Department and in favour of assessee Against the Department and in favour of assesse -- -- 44. 217/2016 Against the Department and in favour of assessee Against the Department and in favour of assessee Against the Department and in favour of assessee Against the Department and in favour of assessee Against the Department and in favour of assessee 61. In view of the above discussion, all the appeals of assessee are allowed and those of Department and dismissed. 6.1 In view of the Judgment of the Hon ble Jurisdictional High Court in assessee s own case pertaining to the earlier years in the case of Commissioner of Income Tax(TDS) Jaipur vs. M/s Bharti Hexacom Limited K- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng the observations of the TDS Officer by treating the Appellant as an assessee in default under section 201(1) of the Act, without appreciating that it is a settled legal position that, if TDS machinery fails, the Appellant cannot be treated as an assessee in default under section 201(1) of the Act. 2. The Appellant thus prays that in the absence of any payment or credit to the Distributors, the Appellant should not be treated as an assessee in default under section 201 r.w.s. 194H of the Act. GROUND NO. IV: GENERAL: The Appellant craves leave to add to/alter and/ or amend all or any of the foregoing grounds of appeal. ITA No. 977/JP/2015(Revenue) 1) On the facts and circumstances of the case, whether the assessee is liable to deduct TDS u/s 194H of the Income Tax Act, 1961 as the relation between assessee and distributor is that of principal to agent. 2) The Ld. CIT(A) has erred in law in deleting the demand u/s 201(1) for non deduction of TDS u/s 194H of the Income Tax Act, 1961 on the commission payment to various distributors. 9. The facts involved in these two appeals are identical to ITA No. 953/JP/2016 pertaining to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3-14 438/JPR/14-15 order dated 24.09.2015 and 23.10.2015. Respectfully following the above orders of Hon'ble ITAT Jaipur CIT(A)-3 Jaipur's. I find that no tax is deductible u/s. 194H of the Act on discount allowed to the Distributor. Since the facts of this year are the same as in AY 2012-13 2013-14 ground no. 1 2 are allowed and decided in favour of the appellant. Accordingly the ground no. 1 2 are allowed. The Hon ble Jurisdiction High Court in D.B. Income Tax Appeal Nos. 169/2015, 170/2015, 171/2015, 8/2016, 45/2016, 48/2016 49/2016 has held as under:- Idea Cellular 58. As the agreement is produced, issues are answered in favour of assessee in the departmental appeals. 59. Even the contention which has been raised by the counsel for the assessee that the final tax is paid by the Distributor and not by the agent, the revenue is not at loss in any form. 60. In view of above, all the issues in each appeal are answered in tabular form as follows:- Srl No. Appeal No. Ques. 1 Ques.2 Ques. 3 Ques. 4 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... In favour of assessee and against the department In favour of assessee and against the department In favour of assessee and against the department In favour of assessee and against the department In favour of assessee and against the department 10. 3/2014 In favour of assessee and against the department In favour of assessee and against the department In favour of assessee and against the department In favour of assessee and against the department In favour of assessee and against the department 11. 4/2014 In favour of assessee and against the department In favour of assessee and against the department In favour of assessee and against the department In favour of assessee and against the department In favour of assessee and against the department 12. 124/2015 Against the Department an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... -- -- -- 22. 08/2016 Against the Department and in favour of assessee Against the Department and in favour of assesse -- -- -- 23. 45/2016 Against the Department and in favour of assessee Against the Department and in favour of assesse -- -- -- 24. 48/2016 Against the Department and in favour of assesse Against the Department and in favour of assesse -- -- -- 25. 49/2016 Against the Department and in favour of assessee Against the Department and in favour of assesse -- -- -- 26. 96/2016 Against the Department and in favour of assessee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... esse Against the Department and in favour of assesse Against the Department and in favour of assesse Against the Department and in favour of assesse 34. 104/2016 Against the Department and in favour of assesse Against the Department and in favour of assesse Against the Department and in favour of assesse Against the Department and in favour of assesse Against the Department and in favour of assesse 35. 105/2016 Against the Department and in favour of assessee Against the Department and in favour of assessee Against the Department and in favour of assessee Against the Department and in favour of assessee Against the Department and in favour of assessee 36. 106/2016 Against the Department and in favour of assesse Against the Department and in favour of assesse -- ..... X X X X Extracts X X X X X X X X Extracts X X X X
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