2018 (5) TMI 143 - AT - Income Tax

TDS u/s 194H - disallowance made u/s 40(a)(ia) - non deduction of tax at source on alleged commission payment to the distributors on sale of recharge coupon vouchers (RCVs) - principal to principal basis - Held that - The sale of prepaid sim cards and RCVs by the assessee to the distributors are on principal to principal basis, hence, outside the ambit of section 194H of the Act. Therefore, no disallowance under section 40(a)(ia) can be made. - Decided in favour of assessee.

Summary

Issues Involved:
1. Delay in filing appeals by the Revenue.
2. Deletion of disallowance under section 40(a)(ia) for non-deduction of tax at source on commission payments to distributors on sale of recharge coupon vouchers (RCVs).

Issue-wise Detailed Analysis:

1. Delay in Filing Appeals by the Revenue:
The Revenue's appeals were initially noted to have an inordinate delay in filing. However, during the hearing, the Departmental Representative clarified that the date of communication of the Commissioner (Appeals)’s order was incorrectly mentioned in the original Form no.36. The correct date was 9th June 2016 instead of 22nd March 2013. The revised Form no.36, verified by the Assessing Officer, was submitted, showing the correct date. After considering these submissions and reviewing the material on record, the Tribunal was satisfied that the appeals were filed within the prescribed period of limitation. Consequently, the delay was ignored, and the appeals were admitted for adjudication on merit.

2. Deletion of Disallowance under Section 40(a)(ia):
The core issue in these appeals was the deletion of disallowance made under section 40(a)(ia) by the Assessing Officer due to non-deduction of tax at source on alleged commission payments to distributors for the sale of prepaid sim cards and RCVs. The Assessing Officer had re-opened the assessments under section 147, finding that the assessee did not deduct tax on the alleged commission paid to distributors. The assessee contended that the sales to distributors were on a principal-to-principal basis, and the discount given on the MRP of the starter kits and RCVs was not commission under section 194H. The Assessing Officer, however, disagreed, citing that the relationship between the assessee and distributors was not purely principal-to-principal and treated the discount as commission, thereby making disallowance under section 40(a)(ia).

The Commissioner (Appeals) deleted the disallowance, relying on earlier decisions in the assessee’s favor, including the Hon'ble Karnataka High Court's decision in the assessee's own case. The Tribunal upheld the Commissioner (Appeals)'s decision, noting that the issue had been settled in favor of the assessee in similar cases. It was observed that the sale of prepaid sim cards and RCVs was a principal-to-principal transaction, and the discount given was not commission under section 194H. The Tribunal referenced several judicial precedents, including the Hon'ble Karnataka High Court and the Tribunal's own decisions in similar cases, which supported the assessee's position.

The Tribunal concluded that the provisions of section 194H were not applicable to the discount given on the sale of prepaid sim cards and RCVs. The relationship between the assessee and the distributors was of a principal-to-principal nature, and thus, no disallowance under section 40(a)(ia) was warranted. The Tribunal dismissed the Revenue's appeals, affirming the Commissioner (Appeals)'s orders.

Conclusion:
The Tribunal dismissed the Revenue's appeals, holding that the sales transactions between the assessee and its distributors were on a principal-to-principal basis and did not attract the provisions of section 194H. Consequently, no disallowance under section 40(a)(ia) was justified.