2020 (1) TMI 1652 - HC - Income Tax

TDS u/s 194H - Discount given by the assessee to its distributors on prepaid SIM Cards - principal to principal relationship OR principal to agent - ITAT deleted addition - HELD THAT - Tribunal followed the decision of Bharati Airtel Ltd. 2014 (12) TMI 642 - KARNATAKA HIGH COURT and held that the sale of SIM cards/recharge coupons at discounted rate to the distributors was not commission and therefore not liable for deduction of the TDS u/s194H. The Tribunal noted that there was no decision of this Court on this issue on that date. Also decided in M/s. Reliance Communications Infrastructure Ltd. 2019 (7) TMI 1371 - BOMBAY HIGH COURT when the transaction was between two persons on principal to principal basis, deduction of tax at source as per section 194H of the Act, would not be made since the payment was not for commission or brokerage - Decided in favour of assessee.

Summary

Issues Involved:
Challenge to order of Income Tax Appellate Tribunal regarding deduction of tax on discount given to distributors on prepaid SIM cards under Section 194H of the Income Tax Act for Assessment Year 2013-14.

Analysis:
The Appellant-Revenue challenged the order of the Income Tax Appellate Tribunal dated 14 May 2018 in Income Tax Appeal No.808/PUN/2016, pertaining to the Assessment Year 2013-14. The primary issues raised were whether the discount given by the assessee to its distributors on prepaid SIM cards required deduction of tax under Section 194H of the Income Tax Act, and whether the Tribunal erred in setting aside the case to the Assessing Officer. The Tribunal, following the decision of the Karnataka High Court in a similar case, held that the discount given by the assessee to its distributors did not fall under the purview of commission or brokerage, and therefore, was not liable for TDS under Section 194H. The Tribunal noted the absence of a decision by the Bombay High Court on this issue at that time.

In a subsequent case, the Division Bench of the Bombay High Court, in Pr. Commissioner of Income Tax-8 vs. M/s. Reliance Communications Infrastructure Ltd., upheld the Tribunal's decision by stating that when a transaction is between two parties on a principal to principal basis, deduction of tax at source under Section 194H would not apply if the payment was not for commission or brokerage. The Court found no error in the Tribunal's view and concluded that the questions of law proposed by the Appellant did not give rise to any substantial question of law. Therefore, based on the finding of fact rendered by the Tribunal and the precedent set by the Division Bench, the Appeal was disposed of in favor of the assessee, affirming that the discount given to distributors on prepaid SIM cards did not require deduction of tax under Section 194H of the Income Tax Act.