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2012 (5) TMI 280 - AT - Income TaxTDS u/s 194H - distributors on sale of Prepaid cards - SIM cards - Demand u/s 201(1) and 201(1A) - held that - The decision rendered by the Hon ble Delhi High Court in the case of Idea Celular Ltd (2010 (2) TMI 24 (HC)) is directly on the issues agitated before us. Hence, we are inclined to follow the same. In that case, the Hon ble Delhi High Court held that the transaction between the assessee, a cellular operator and the prepaid market associates (PMAs) appointed by it whereby SIM cards/recharge coupons are ultimately sold to the subscribers through the latter does not amount to sale of goods and, therefore, the discount offered by the assessee to the distributors on payments made by the latter for the SIM cards/recharge coupons which are eventually sold to the subscribers at the listed price is commission and it is subject to TDS u/s 194H. - Decided against the assessee. Applicability of provisions of sec. 194J on roaming charges paid by the assessee to other operators - held that - decision of Skycell (2001 (2) TMI 57 (HC)). - held that - this issue could be resolved if there is proper understanding of the technical details concerning the functioning of Home circle cellular operators and Outside circle operators. From the arguments of the Ld A.R, we understand that the case of the assessee is that the Home circle cellular operator does not actually provide airtime usage facility to the subscriber, once he moves out of the Home circle to an outside circle. The airtime usage in those Outside circles is actually provided by the operators of concerned outside circles. With regard to the billing, the understanding between the cellular operators is that the charges for the usage in Outside circles shall also be collected by the Home circle cellular operator, who in turn, shall pass it on to the concerned outside circle operator. - matter remanded for reconsideration.
Issues Involved:
1. Applicability of Section 194H to amounts paid to distributors on the sale of prepaid cards. 2. Applicability of Section 194J to amounts paid to other telephony operators towards roaming charges. 3. Applicability of Section 194I to the payment of roaming charges as an alternative contention. 4. The alternative plea that the assessee should not be required to deduct tax at source again if the tax on the said income has been paid by the deductees. Issue-wise Detailed Analysis: 1. Applicability of Section 194H to Amounts Paid to Distributors on Sale of Prepaid Cards: The primary issue is whether the difference between the face value of prepaid cards and the selling price constitutes "commission" liable for deduction at source under Section 194H. The assessee sells prepaid cards to distributors at a price lower than the face value. The assessing officer (AO) argued that this difference is akin to commission, invoking Section 194H. The AO cited the case of Bharti Cellular Ltd. and noted that the relationship between the assessee and distributors is that of Principal and Agent. The assessee, however, contended that the relationship is Principal to Principal and relied on the Gujarat High Court's decision in Ahmedabad Stamp Vendors Association. The Tribunal, following the Delhi High Court's decision in Idea Cellular Ltd., concluded that the discount offered to distributors on prepaid cards is indeed commission and subject to TDS under Section 194H. 2. Applicability of Section 194J to Roaming Charges: The second issue pertains to whether roaming charges paid to other operators fall under "Technical services" as per Section 194J. The AO and CIT(A) held that these payments are for technical services. The assessee argued that roaming services are automated and lack human intervention, thus not qualifying as technical services. The Tribunal noted the need for technical expertise to understand the operations of roaming services and set aside the orders of CIT(A), directing the AO to re-examine the issue with technical assistance. 3. Applicability of Section 194I to Roaming Charges: As an alternative contention, the AO argued that Section 194I should apply to roaming charges. The Tribunal, noting the necessity of technical understanding, set aside this issue to the AO for re-examination alongside the Section 194J issue. 4. Alternative Plea on Non-requirement of TDS if Tax Already Paid by Deductees: The assessee raised an alternative plea that if the tax on the income has already been paid by the deductees, the assessee should not be required to deduct tax at source again. The Tribunal, referencing the Supreme Court's decision in Hindustan Coco Cola Beverage Pvt. Ltd., directed the AO to verify the assessee's claim that the deductees have paid the tax and take appropriate action in accordance with law. Conclusion: The Tribunal partly allowed the appeals, directing the AO to re-examine the issues related to roaming charges under Sections 194J and 194I with technical assistance and to verify the claim regarding the non-requirement of TDS if the tax has already been paid by deductees. The decision upheld the applicability of Section 194H to the discount on prepaid cards, treating it as commission.
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