TMI Blog2022 (7) TMI 1132X X X X Extracts X X X X X X X X Extracts X X X X ..... 1. On the facts and circumstances of the case and in law, the Ld. CIT(A) erred in deleting the disallowance of Rs. 59,30,89,904/- under section 40(a)(ia) of Income Tax Act, 1961 and holding that the assessee was not required to deduct tax at source u/s 194H 'in respect of payment of the discounts allowed to its prepaid distributors on sale of starter kits and prepaid recharge vouchers. 2. On the facts and circumstances of the case and in law, the Ld. CIT(A) erred in allowing depreciation claim of the assessee amounting to Rs. 99.50 crores u/s 32 of the IT Actin respect of amount paid to DOT for purchase of 3G spectrum. 3. The Ld. CIT(A)'s order is contrary in law and on facts and deserves to - be set aside. 4. The appellant craves leave to amend or alter any ground or add a new ground that may be necessary. 5. The appellant prays that the order of CIT(A) on the above ground be set aside and that of the AO restored. 2. The brief facts of the case are that the Hon ble Tribunal vide its order dated 01.04.2021 has dismissed the revenue appeal and upheld the order of the CIT(A). Subsequently, the assessee has filed the miscellaneous application se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t of Honourable Kerala High Court in the case of Vodafone Essar Cellular Ltd Vs ACIT [20101 194 Taxman 518 (Kerala)/E20111 332 ITR 255 (Kerala)/[2010] 235 CTR 393 (Kerala) 3 The decision of Honurable ITAT Chennai in the case of ITO, TDS Vs Vodafone Essar Cellular Ltd [2011] 12 taxmann.com 45 (Chennai)/[2011] 46 SOT 211 (Chennai)(URO)/[2011] 141 TJ 461 (Chennai) 4 The decision of Honourable ITAT Cochin in the case of Vodafone Essar Cellular Ltd Vs ACIT, TDS Kochi (2009) 32 SOT 280 and 5 The decision of Honourable ITAT Cochin in the case of Vodafone Essar Cellular Ltd Vs ACIT, TDS Kochi (2011) 43 SOT 257 Thus, three high courts and many tribunals are against the appellant on this issue. However, it is seen that the judgment of the Hon'ble Karnataka High Court in Bharti Airtel Ltd. Ors v/s DCIT, in ITAs no.637 644 of 2013, dated 14th August 2014, [2014] 52 taxmann.com 31 (Karnataka)/[2015] 228 Taxman 219 (Karnataka) (MAG.) / [2015] 372 ITR 33 (Karnataka)/[2015] 274 CTR 213 (Karnataka), wherein the assessee was also a party, in ITA no. 158 of 2013, is in favour of the appellant. Relying on this decision, the 'D' Bench of the jurisdictional Tribunal h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re is no relationship of agency. That being the case, the provisions of section 194H are not applicable. The Hon'ble Karnataka High Court after examining in detail the 13 M/s. Tata Teleservices (Maharashtra) Limited aforesaid factors have decided the issue in favour of the assessee by reversing the order of the Tribunal. In view of the changed scenario, after the order of the Hon'ble Karnataka High Court as referred to above, the decision of the learned Commissioner (Appeals) cannot be sustained. In fact, ITAT, Jaipur Bench, in case of M/s. Tata Teleservices Ltd. v/s ITO, ITA no.309/Jp./2012 and others, dated 13th March 2015, following the decision of Hon ble Karnataka High Court (supra), held that provisions of section 194H is not attracted on the discount given on sale of pre paid starter kit and accordingly, following the decisions referred to above, we set aside the impugned order of the learned Commissioner (Appeals) and quash the demand raised by the Assessing Officer under sections 201(1) and 201(1A). The issue has also been decided in the favour of the appellant by ITAT Mumbai, in the appeal of the appellant against the assessment order for A.Y. 2006-2007 to 20 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... amount of Rs. 57, 24,22, 93Q/- relying on following decisions: - 1 The judgment of Honourable Delhi High Court in the case of CIT XVII Vs Idea Cellular Ltd [2010] 189 Taxman 118 (Dclhi)/[2010] 325 ITR 148 (Delhi/[2010] 230 CTR 43 (Delhi) 2 The judgment of Honourable Kerala. High Court in the case of Vodafonc Essar Cellular Ltd. Vs ACIT [2010] 194 Taxman 518 (Kerala)/ {2011] 332 JTR 255{Kerala)/(2QlQl 235 CTR 393 3 The decision of Honurable ITAT Chennai in the case of 1TO, TDS Vs Vodafone Essar Cellular Ltd [2011] 12 taxmann.com 45 (Chennai)/[2011] 46 SOT 211 (Chennai) (URO)/[2011] 141 TTJ 461 (Chennai) 4 The decision of Honourable ITAT Chennai in the case of Vodafonc Essar Cellular Ltd Vs ACIT, TDS Kochi (2009) 32 SOT 280 and 5 The decision of Honourable ITAT Cochin in the case of Vodafone Essar Cellular Ltd Vs ACIT, TDS Kochi [2011)43 SOT 257 Thus, three high courts and many tribunals are against the appellant on this issue. However, it is seen that the judgment of the Hon'ble Karnataka High Court in Bharti Airtel Ltd. Ors v/s DClT, in ITAs no.637 644 of 2013, dated 14th August 2014, [2O14] 52 taxmann.com 31 |Karnataka)/[20l5] 228 Taxman 219 (Karna ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... purely a purchase / sale transaction on principal-to principal basis and there is no relationship of agency. That being the case, the provisions of section 194H are not applicable. The Hon'ble Karnataka High Court after examining in detail the aforesaid factors have decided the issue in favour of the assessee by reversing the order of the Tribunal. In view of the changed scenario, after the order of the Hon'ble Karnataka High Court as referred to above, the decision of the learned Commissioner (Appeals) cannot be sustained. In fact, ITAT, Jaipur Bench, in case of M/s. Tata Teleservices Ltd. v/s 1TO, ITA no-309/JP./2O12 and others, dated 13th. March 3015, following the decision of Hon'ble Karnataka High Court (supra), held that provisions of section 194H is not attracted on the discount given on sale of pre-paid starter kit and accordingly, following the decisions referred in above, we set aside the impugned Order of the learned Commissioner [Appeals) and quash the demand raised by the Assessing Officer under sections 201(1) and 201(1A) Respectfully following the above decisions in the case of the appellant, which are in favour of the appellant, it is held that the appel ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
