2023 (9) TMI 425 - AT - Income Tax

TDS u/s 194H - discount allowed to retailers by the assessee dealer/distributors on sale of prepaid sim cards/mobile recharge cards - whether the lower authorities were justified in making disallowance u/s 40(a)(ia) on account of non-deduction of TDs on such discount given by the assessee to the retailers on sale of sim card/recharge coupons - HELD THAT - The issue is squarely covered by the recent decision of the Hon ble Bombay High Court in the case of Commissioner of Income Tax (TDS), (Pune) v. Idea Cellular Ltd. 2020 (1) TMI 1652 - BOMBAY HIGH COURT wherein held 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. The case of the assessee is on better footing. In the above referred to the decision, Idea Cellular Company owned the sim cards which were further sold to the distributors. However, in the case in hand, the assessee is a distributors/dealer and has sold the sim card on discounted rate to the retailers and the relationship between the assessee and retailers was not of principle agent, rather, the same was principle to principle basis. In view of the above decision of the Bombay High Court in the case of owner company itself, this issue is decided in favour of the assessee. Disallowance made by the lower authorities on this issue is ordered to be deleted. Decided in favour of assessee.

Summary

Issues involved:
The sole issue involved in this appeal is whether Tax at Source (TDS) was liable to be deducted u/s 194 of the Income Tax Act on the discount allowed to retailers by the assessee dealer/distributors on sale of prepaid sim cards/mobile recharge cards and whether the lower authorities were justified in making disallowance u/s 40(a)(ia) of the Act on account of non-deduction of TDs on such discount given by the assessee to the retailers on sale of sim card/recharge coupons.

Comprehensive details of the judgment:

Issue 1: TDS on discount to retailers
The issue in this appeal was whether Tax at Source (TDS) was required to be deducted on the discount provided by the assessee dealer/distributors to retailers on the sale of prepaid sim cards and mobile recharge cards. The Tribunal referred to the decision of the Hon'ble Bombay High Court in a similar case involving Idea Cellular Ltd., where it was held that when the transaction was on a principal-to-principal basis, TDS under section 194H of the Act was not applicable. The Tribunal noted that the relationship between the assessee and the retailers was not that of principal-agent but rather principal-principal, similar to the situation in the Bombay High Court case. Therefore, the Tribunal decided in favor of the assessee, setting aside the CIT(A)'s order and deleting the disallowance made by the lower authorities on this issue.

Conclusion:
The Tribunal ruled in favor of the assessee, holding that TDS was not required to be deducted on the discount provided to retailers on the sale of prepaid sim cards and mobile recharge cards. The decision was based on the principle that the transaction was on a principal-to-principal basis, similar to a precedent set by the Hon'ble Bombay High Court in a related case. Consequently, the appeal of the assessee was allowed.

Kolkata, the 2nd August, 2023.