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2017 (1) TMI 1583 - AT - Income TaxTDS u/s. 194H - Discount allowed to pre-paid Distributors - sale of SIM cards/recharge coupons at discounted rate to distributors - assessee is a Cellular service provider and distributors were appointed who purchase the products in bulk and then sell the same to sub-dealers or retailers - Held that - Respectfully following the decision of Bharti Airtel Ltd. 2014 (12) TMI 642 - KARNATAKA HIGH COURT we hold that sale of SIM cards/recharge coupons at discounted rate to distributors is not commission and therefore not liable to TDS u/s.194H of the I.T. Act. As the Hon ble High Court while holding so has remitted the matter back to the assessing authority only to find out how the books are maintained and how the sale price and the sale discount is treated and whether the sale discount is reflected in their books. If the accounts are not reflected as set out above section 194H is not attracted. Therefore in line of the above observation of the Hon ble High Court we restore the matter to the file of the Assessing Officer for necessary verification. Decided in favour of assessee for statistical purposes. 2
Issues Involved:
1. Treatment of discount offered to distributors as commission under Section 194H of the Income Tax Act. 2. Assessee's liability as 'assessee in default' under Section 201(1) for non-deduction of tax at source. 3. Levy of penalty under Section 271C for non-compliance with TDS provisions. Issue-Wise Detailed Analysis: 1. Treatment of Discount as Commission under Section 194H: The primary issue is whether the discount offered by the assessee to its distributors for selling prepaid SIM cards and recharge coupons constitutes commission, thereby attracting the provisions of Section 194H of the Income Tax Act. The assessee argued that the relationship between them and the distributors was that of principal to principal, not principal to agent, and thus, the discount extended was a trade margin, not commission. The assessee relied on various judgments, including the Hon'ble Karnataka High Court's decision in Bharti Airtel Ltd. vs. DCIT, which held that the sale of SIM cards/recharge coupons at a discounted rate to distributors is not commission and therefore not liable to TDS under Section 194H. The Tribunal agreed with the assessee's position, noting that the Karnataka High Court's ruling considered similar facts and distinguished other High Court decisions relied upon by the CIT(A). 2. Assessee's Liability as 'Assessee in Default' under Section 201(1): The assessee contended that they could not be treated as an 'assessee in default' for non-deduction of tax at source unless it was proven that the recipients (distributors) had not paid taxes on the discount received. The Tribunal referred to the Hon'ble Allahabad High Court's decision in Jagran Prakashan Ltd., which stated that unless the revenue proves that the recipient had not paid taxes, the assessee cannot be held to be an assessee in default. The CIT(A) had directed the Assessing Officer to verify the declarations and modify the demand accordingly. The Tribunal upheld this direction, emphasizing the need for verification in line with the Karnataka High Court's decision. 3. Levy of Penalty under Section 271C: The Assessing Officer had levied penalties under Section 271C for the assessee's failure to deduct TDS on the discount offered to distributors, treating it as commission. However, the Tribunal, having already held that the discount does not constitute commission and thus does not attract TDS under Section 194H, found that the penalty under Section 271C was not justified. The matter was restored to the Assessing Officer for fresh verification and decision in light of the Karnataka High Court's ruling. Conclusion: The Tribunal concluded that the discount offered by the assessee to its distributors does not constitute commission under Section 194H and therefore does not attract the provisions of TDS. The assessee cannot be treated as an 'assessee in default' under Section 201(1) without proof that the recipients did not pay taxes on the discount received. Consequently, the penalties under Section 271C were also not justified. The matters were remitted back to the Assessing Officer for necessary verification regarding the treatment of sale price and sale discount in the assessee's books of accounts. All appeals filed by the assessee were allowed for statistical purposes.
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