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TMI Blog2018 (12) TMI 271X X X X Extracts X X X X X X X X Extracts X X X X ..... ale, so in the financial statements the discount amount is not reflected. In the case of Jt. CIT (TDS) vs. Bharat Business Channels Ltd. [2018 (5) TMI 229 - ITAT MUMBAI] the ITAT, Mumbai on similar issue following the decision in the case of Bharti Airtel Ltd. [2014 (12) TMI 642 - KARNATAKA HIGH COURT] had decided the same issue in favour of the assessee. Thus we hold that the assessee was not liable to deduct the tax at source on the impugned amounts in this case. - Decided in favour of assessee. TDS u/s 194C OR 194J - TDS on payment made to installation service provider - Held that:- This case is squarely covered by the decision of the Tribunal in the case of M/s. Bharat Business Channels Ltd. (2018 (5) TMI 229 - ITAT MUMBAI) wherein as a DTH operator, same as the Assessee had also obtained services of Installation Service Providers to install Dish Antenna, Set-Top Box, etc. at the subscriber's premises similar to Tata Sky. That the Hon'ble Tribunal observed that the installation work does not require any special technical expertise and can be done by any sound person on reading through the installation manual. That the Hon'ble Tribunal also noted that the installation serv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Income Tax (Appeals) dated 29.08.2012 and pertain to the assessment years 2009-10 to 2012-13 respectively. Since the issues are common and the appeals were heard together these have been disposed of by this common order. 2. The common grounds of appeal raised by the assessee read as under: Levy of demand 1. On the facts and circumstances of the case and in law, the Hon'ble Commissioner of Income-tax (Appeals) -14, Mumbai ['CIT(A)'] erred in not deleting the entire demand of ₹ 5,36,33,572 raised on the Appellant under section 201(1) / 201(1A) of the Income-tax Act, 1961 ('the Act'). Discount on sale of Set-Top Box treated as Commission income 2. On the facts and in the circumstances of the case and in law, the Hon'ble CIT(A) erred in upholding that the Appellant is liable to deduct tax at source under section 194H of the Act on discount of ₹ 8,41,99,124 offered to distributors on sale of Set-top box by the Appellant. Discount on sale of Recharge Coupon Vouchers treated as Commission income 3. On the facts and in the circumstances of the case and in law, the Hon'ble CIT(A) erred in upholding that the Appellant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appreciating that the TDS was to be deducted U/S.194J and not u/s.194C of the I.T.Act, 1961. 4. The Ld.CIT(A) has erred in law and on facts in holding that the payment made for Document Management Charges be treated as covered u/s.!94C and not U/S.194J of the I.T.Act without appreciating that these charges were paid for rendering services of highly technical nature, such as using of its software for tracking stored documents, access control system, CCTV system, closed circuit television monitoring for entries, bar coding of physical docket. 5. The Ld.CIT(A) has erred in law and on facts in deleting the interest u/s.201(lA) on the issues of installation service provider and document management fees as these short deduction has been deleted by him and interest deletion is consequential to quantum deletion of short deduction, which is the subject matter of further appeei as per Ground No.3 4 above. 6. The Ld.CIT(A) has erred in law and on facts in holding that the interest u/s.201(lA) on the short deduction confirmed by him, on the issue of set top boxes and recharge vouchers to be calculated, from the date of deduction till the return of income filed by the deductee as pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ween the appellant and the distributor in as much as the distributors are merely conduits who facilitate the conveyance of services of the appellant company to the end user. * The AO has relied upon various decisions of the High Courts and the ITAT to observe that the decisions cited by the appellant have already been considered by these higher judicial authorities. 7. The AO has referred to various decisions, including: (a) CIT Vs. Singapore Airliner Other Airlines , 213 Taxman 441 (Del.) (b) ACIT Vs. Bharati Cellular Ltd , 294 ITR (AT) 283, (Kolkata ITAT) (c) Bharti Cellular Ltd. Vs. ACIT , 244 CTR 185 (Cat.) (d) BPL Mobile Cellular Ltd , Writ Petition No. 29202/2005 (Ker. HC) (e) Vodafone Essar Cellular Vs. ACIT , 332 ITR 255 (Ker.) (f CIT Vs. idea Cellular Ltd , 325 ITR 148 (Del.) (g) CIT Vs. Durga Prasad More , 82 ITR 540 (SC) 8. The AO thereafter held that the facts of the present case are identical to the facts of above cases, where the courts have held that the nature of payment by telecom operators to the distributors for recharge coupons, prepaid SIM cards etc. is on account of commission as defined u/s. 194H of the Act and hence lia ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ission; ( iii) The income by way of commission should be paid by the appellant for services Rendered by the distributors/dealers or for any services in the course of buying or selling of goods; ( iv) The income by way of commission may be received or be receivable by the distributors/dealers from the appellant either directly or indirectly; and ( v) The point of time at which, the obligation to deduct tax at source on the part of the appellant will arise is that when credit of such income by way of commission is made to, the account of the distributors/dealers or when payment of income by way of commission is made by way of cash, cheque or draft or by any other mode, whichever is earlier. 11. Thereafter, the ld. CIT(A) proceeded to ascertain that whether there is a principal agent relationship between the assessee and its distributors/dealers. He referred to the provision of section 182 of the Contract Act for the definition Agent . He stated that the basic and essential requisites of an agency ordinarily would be that: ( i) The agent makes the principal answerable to third persons where-by the principal can sue third parties directly and renders him ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t by the distributor/dealer on his own, without the approval/involvement of the assessee. 13. After some discussion in this regard, the ld. CIT(A) observed that from the facts discussed above, it is evident that the sole business of the assessee is providing DTH services to its subscribers, no matter what business model is followed by the assessee in this regard. That in the assessment years under consideration, although a cost has been assigned to the STB, so far as the initial subscription amount charged from the subscribers is concerned, in reality what is charged by the assessee in terms of the subscription charges, is only the consideration for the DTH services. That in the subsequent year i.e. FY 2011-12, the business model has been changed, and as expected, in the subscription amount (which would either remain the same or be marginally changed), no cost has been assigned to the STB. In FY 2011-12, the STBs are being given free of cost to the subscribers on entrustment basis and the initial subscription amount is only for the value of DTH services. In the relevant years under consideration, although a cost has been assigned to STBs out of the initial subscription amount, i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the agreements with the distributors and dealers. He proceeded to hold that most of the other stipulations in the agreement would also indicate that the distributor/dealers are not doing business of their own, rather it is the assessee s business, i.e., being carried out at all times. Hence, he held that it was evident that the first condition for application of section 194H is satisfied. He further observed that the other conditions (as outlined above in Para 5.27) in regard to provisions of Section 194H, are that a) The payments made by the assessee to its distributors/dealers should be in the nature of income by way of commission; b) The income by way of commission should be ' paid by the assessee for services rendered by the distributors/dealers or for any services in the course of buying or selling of goods; c) The income by way of commission may be received or be receivable by the distributors/dealers from the assessee either directly or indirectly. Hence, the CIT(A) opined that there is no doubt that all these three conditions are satisfied so far as the relationship between the assessee and its distributors/dealers as well as the facts and circumstances of the case ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Cellular Ltd. (supra), cannot be applied to the transactions in respect there-of. Ld. CIT(A) held that in this regard, it may be noted that the discount provided by the assessee to its distributors in respect of STBs is not for sale of the physical goods or tangible assets in terms of STBs but for procuring the customers for the services being offered by the assessee. He held that as already stated above, the assessee is not engaged in the business of sale of goods; rather the assessee is in the business of providing DTH services to its customers. He concluded as under: 5.55 In the case of the appellant, the income in the form of commission earned by the distributors/dealers is inextricably linked to the sale of the set-top boxes and recharge vouchers by them which are the appellant's mediums for providing services to its ultimate customers. The distributors are the appellant's link with its customers. The distributors neither have any license in respect of the DTH services, nor do they have any ownership of such services. The STBs and RCVs are only the tools utilised by the appellant for delivering its services to the doorstep of its customers. Hence It is evident tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nce of service rendered by the distributors/dealers is not the sale of any product or goods. They are providing facilities and services to the general public for the availability of devices like STBs .and RCVs to have access to the DTH service of the appellant company. Therefore, it is beyond doubt that all the distributors/dealers are always acting for and on behalf of the appellant. e) There are a number of limiting parameters for distributors/ dealers, which deny the existence of principal to principal relationship between them and the appellant. The distributor/dealer shall not make any representations or give any warranties in respect .of the Products other than those contained in the appellant's conditions of sale as prevalent and operating at the time of the offering of the sale, or the sale. This limits the parameters of the functioning of the distributor/dealers although within these parameters, he is free and independent to organise his business. f) The distributors/dealer is also not authorised to vary or modify the terms of the package deal offered by the appellant at the time of providing connection to the consumer through installation of STBs and dish ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssion. He submitted that infact it is the other way round that is the distributor makes payment to assessee and the money received from the distributor is booked as income in the books of the assessee towards sale of its products. In this regard the ld. Counsel placed reliance on the decision of Hon'ble Jurisdictional High Court in the case of CIT vs. Piramal Healthcare Ltd . (230 Taxman 505 (Bom.) and the decision of Hon'ble Bombay High Court in the case of CIT vs. Qatar Airways (332 ITR 253 (Bom.). Referring to the ratios from these decisions the ld. Counsel submitted that ratio of the above decision is directly applicable to its case since it has not made any payment to the distributor and that the assessee only received sale price on sale of products to the distributors. He further submitted that TDS provisions are not applicable in cases where there is no payment made by the assessee and it is not relevant whether the assessee was engaged in the business selling of goods or rendering services. Ld. CIT(A) further relied on the decision of Hon'ble Rajasthan High Court in the case of Hindustan Coca Cola Beverages (P.) Ltd. vs. CIT (402 ITR 539). 22. The ld. Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... held by the Hon'ble Supreme Court in Ahmadabad Stamp Vendors Association (348 ITR 378). Thereafter, the ld. Counsel for the assessee referred to several case laws. Without prejudice the ld. Counsel for the assessee submitted that if two views are possible on the issue under consideration the view favourable to the assessee should be followed. Hence, he submitted that the decision of Hon'ble Rajasthan High Court in the case of Hindustan Coca Cola Beverages (P.) Ltd. vs. CIT (402 ITR 539) being favourable to the assessee should be followed and not the case of Hon'ble Delhi High Court in the case of CIT vs. Idea Cellular Ltd.( 325 ITR148). Thereafter the ld. Authorized Representative of the assessee placed reliance on several decisions of ITAT Mumbai including that of M/s. Bharat Business Channels Limited (ITA No.7047 7048/Mum/2012). He also referred to entries passed by the assessee and submitted that entries passed by the assessee regarding discount cannot be considered in the nature of commission liable u/s. 194H. In this regard he referred to scheme of entries. 25. In this regard the ld. counsel for the assessee referred to Bharti Airtel Ltd. vs. DCIT (37 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to deduct TDS on the discount amount shown in the invoice. 30. In this regard ld. counsel again referred to the decision of Hon'ble Rajasthan High Court in the case of Hindustan Coca Cola Beverages (P.) Ltd . Without prejudice the ld. Counsel further submitted the demand arising from tax liability of the deductee cannot be recovered from the deductor. In this regard he placed reliance on the decision of Allahabad High Court in the case of Jagran Prakashan Ltd. vs. DCIT (345 ITR 288). Ld. Counsel alternatively without prejudice also prayed that if the assessee is an assessee in default and appeal may be set aside to the file of Assessing Officer to find facts relating to non-payment of any amount by the assessee to the distributor, the terms of distribution agreement, entries passed in light of various decisions referred by him. 31. Per contra, the ld. Departmental Representative (ld. DR for short) relied upon the order of the AO and the ld. CIT(A) relied on the case law referred by them. 32. Upon careful consideration, we find that we may gainfully refer to the provision of section 194H of the Act as under: Commission or brokerage. 194H. Any person, not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lation) Act, 1956 (42 of 1956) ; ( iv ) where any income is credited to any account, whether called Suspense account or by any other name, in the books of account of the person liable to pay such income, such crediting shall be deemed to be credit of such income to the account of the payee and the provisions of this section shall apply accordingly. 33. The CBDT Circular no. 619 also can be referred as under: SECTION 194H OF THE INCOME-TAX ACT, 1961 - DEDUCTION OF TAX AT SOURCE-COMMISSION OR BROKERAGE ETC - INSTRUCTIONS FOR DEDUCTION OF TAX AT SOURCE FROM COMMISSION, BROKERAGE, ETC. CIRCULAR NO.619, DATED 4-12-1991 1. The Finance (No. 2) Act, 1991 has introduced a new section 194H, into the Income-tax Act, 1961, which provides that any person, not being an individual or a Hindu undivided family, who is responsible for paying, on or after the 1st day of October, 1991, to a resident, any income by way of commission (not being insurance commission referred to in section 194D) or brokerage, shall, at the time of credit of such income to the account of the payee or at the time of payment of such income in cash or by the issue of a cheque or draft or by any other mode ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... consignee/agent and not remitted to the consignor/principal while remitting the sale consideration. It may be clarified that since the retention of commission by the consignee/agent amounts to constructive payment of the same to him by the consignor/principal, deduction of tax at source is required to be made from the amount of commission. Therefore, the consignor/principal will have to deposit the tax deductible on the amount of commission income to the credit of the Central Government, within the prescribed time, as explained in the succeeding paragraphs. 7. The responsibilities, obligations, etc., under the Income-tax Act of a person deducting income-tax at source are as follows : ( a) According to the provisions of section 200, any person deducting tax at source under section 194H shall pay, within the prescribed time (as laid down in rule 30 of the Income-tax Rules, 1962), the tax so deducted to the credit of the Central Government. In the case of deduction by or on behalf of the Government, the sum has to be paid on the day of the deduction itself. In other cases, payment is normally to be made within one week from the last day of month in which the deduction is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to pay by way of penalty under section 272BB, a sum up to ₹ 5,000. These instructions are not exhaustive and are issued with a view to helping the persons responsible for making deduction of tax at source under section 194H. Where there is any doubt, a reference may be made to the relevant provisions of the Income-tax Act, 1961 and the Finance (No. 2) Act, 1991. In case any assistance is required, the Assessing Officer concerned or the local Public Relations Officer of the Income-tax Department may be approached. 34. After careful consideration we note that the assessee in this case is engaged in business of providing direct to home (DTH) services. The assessee enters into agreement with the distributor for sale of Set Top Box (STB) and recharge coupon vouchers. As per agreement products are sold to distributor at discounted price, as agreed. The distributor/dealer sells these items to customers/subscribers at a price not exceeding MRP on the product. As per the agreement payment of each order for the above items is to be made by distributor either at the time of placing the order or at the time of delivery. Apart from the above assessee also provides festival/sea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as received the sale price at the rate fixed under the agreement. In such a case, where the assessee has received the amount of sale price, the question of the assessee deducting tax at source under Section 194-J of the Act does not arise, because the assessee is not making any payment to the stockist. Therefore, whatever be the margin made available to the stockist, so long as the assessee is not making any payment to the stockist, the question of invoking Section 194-J against the assessee does not arise. Hence, we see no reason to entertain question (b) raised by the Revenue. 2) in the case of Qutar Airways (supra), the Hon ble High Court was considered the question of TDS on commission on brokerage u/s. 194H and the Hon ble Apex Court has held as under: 1 The question of law as raised in this appeal is as under: Whether on the facts and in the circumstances of the case and in law, the difference in amount between commercial price and published price is special commission in the nature of commission or brokerage within the meaning of Explanation (i) to section 194H of the Income-tax Act 1961 ? 2. It is not in dispute that the airlines have a discretio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... us can neither amount to commission nor brokerage at the hands of the agent. We hasten to add any amount which the agent may earn over and above the fixed minimum commercial price would naturally be income in the hands of the agent and will be taxable as such in his hands. In this view of the matter, according to us. there is no error in the impugned order and the question of law as framed does not arise. The appeal is therefore, dismissed in limini. 3) We may also refer to the decision of the Hon ble Karnataka High Court in the case of M/s. Bharti Airtel Limited vs. DIT (in ITA Nos. 637-644 of 2013 vide order dated 14.08.2014, where similar issue was considered by the Hon ble High Court as under: 62. In the appeals before us, the assessees sell prepaid cards/vouchers to the distributors. At the time of the assessee selling these pre-paid cards for a consideration to the distributor, the distributor does not earn any income. In fact, rather than earning income, distributors incur [expenditure for the purchase of prepaid cards. Only after the resale of those prepaid cards, distributors would derive income. At the time of the assessee selling these pre-paid cards, he is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e agreement set out supra in unmistakable terms demonstrate that the relationship between the assessee and the distributor is not that of principal and agent but it is that of principal to principal. 63. It was contended by the revenue that, in the event of the assessee deducting the amount and paying into the department, ultimately if the dealer is not liable to tax it is always open to him to seek for refund of the tax and, therefore, it cannot be said that Section 194H is not attracted to the case on hand. As stated earlier, on a proper construction of Section 194H and keeping in mind the object with which Chapter XVII is introduced, the person paying should be in possession of an income which is chargeable to tax under the Act and which belongs to the payee. A statutory obligation is cast on the payer to deduct the tax at source and remit the same to the Department. If the payee is not in possession of the net income which i.s chargeable to tax, the question of payer deducting any tax does not arise. As held by the Apex Court in Bhavani Cotton Mills Limited's case, if a person is not liable for payment of lax at all, at any time, the collection of tax from him, with a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... view taken by the Tribunal that as the sale of starter kits/sim cards is purely a purchase/sale transaction on principal-to-principal basis and there is no relationship of agency, hence no obligation was cast upon the assessee to have deducted tax at source under Sec. 194H in respect of the discounts given to the distributors on the sale of the same. We thus, are of the considered view that as observed by us hereinabove, in the absence of any obligation cast upon the assessee to have deducted tax at source in respect of the discounts given to the distributors on the sale of the prepaid starter kits/sim cards, no disallowance under Sec.40(a)(ia) of ₹ 66,03,56,590/- was called for in the hands of the assessee. We thus finding no infirmity with the order of the CIT(A), uphold the same. In the case of CIT vs. Intervet India (P.) Ltd. [2014] 49 taxmann.com 14 (Bom) the Hon'ble Bombay High Court has held as under: 6. We have perused the concurrent orders with the assistance of the learned counsel for both the parties. The assessee had undertaken sales promotional scheme viz., product discount scheme and product campaign as discussed hereinabove under which the assesse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... deducting the commission, stock brokerage or whatever term is awarded and the same has been shown in the books of accounts and as stated by Mr. Mathur, if the details are to be given reads as under: The advertisement are to be procured by such agencies at the rates and terms decided between them and advertiser, assessee has no involvement therein. In the case of Kerala State Stamp Vendors Association vs. Office of the Accountant General, the Hon ble Kerala High Court held that what is liable for TDS is commission of brokerage and not the incentives given on the basis of principal to principal relations. 11. The assessee also furnished that they ought not to have been added in the income of the assessee in spite of making ground under section 194H or 40(a)(ia) of the I.T. Income Tax Act, 1961. 12. In our considered opinion, the Tribunal while considering the matter has righlty come to the conclusion that it is on the basis of principal to principal and does not constitute commission. Hence, no other view than the one taken by the Tribunal is possible. 39. A cohesive reading of the above case laws particularly that of the Hon'ble Bombay High Court in t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... high courts. The remarks of the ld. CIT(A) on the jurisdictional High Court decision are totally uncalled for, neither permissible nor sustainable. 40. Hence, in the background of the aforesaid discussion and precedent, we hold that the assessee was not liable to deduct the tax at source on the impugned amounts in this case. 41. In the result, the assessee appeal stands allowed. Revenue s appeal: ( i) TDS on payment made to installation service provider 42. Brief facts of the case are as under: The assessee is engaged in the business of providing DTH services. The assessee enters into agreement with third party Installation Service Providers ('ISPs') for the installation of Tata Sky hardware at the premises of the subscribers. The Assessee transfers the Tata Sky hardware to the I3P for storage at the ISP's premises. When a potential customer purchases the Tata Sky connection, the Assessee informs the ISP to install the Tata Sky hardware at the premises of the subscriber. Thus, the relevant activity carried out by an ISP is to install the Dish Antenna and incidental hardware at the premises of the subscriber For this service, the as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... om the nature of services being rendered by ISPs, it is evident that they do not fall within the scope of technical services. 6.9 The job of the Installation Service Provider is to go to the premises of the subscriber, to install dish antenna and Set-Top Box. Thereafter, the Installation Service Provider has to connect the Set-top Box to the Television of the subscriber by making few basic wiring connections. This can be done by any sound person after reading the installation manual carefully. So far as the training given by the appellant is concerned, it is seen that basic training/ instructions are provided for a short period to make them understand the process of Installation so that they can apply the same at the place of the subscriber. Further, the payment per installation is not very high and it is a few hundred rupees. It may be noted that services from skilled and technically qualified persons cannot be obtained at such a meager amount considering that the work has to be carried out at the place of the subscriber. The work, as is evident, is repetitive in nature. I agree with the appellant that in respect of these services/works outsourced, it cannot be said that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Also, there is no specific qualification or recognized course required for installation Service Provider to become eligible for installation of Dish and Set^Top Box. They are given basic training/instructions for a short period to make them understand the process of Installation so that they can apply the same at the place of the subscriber. Accordingly, the CIT(A) was justified in holding that assessee was required to deduct tax u/s.194C of the Act. The CIT(A) has dealt with the issue threadbare and after relying on various judicial pronouncements held that work of installation of Set-Top box amounts to 'works contract. The detailed finding so recorded by CIT(A) are as per material on record which has not been controverted by Id. DR by bringing any positive material. Accordingly, we do not find any reason to interfere in the order of CIT(A) holding that installation of Set-Top Box amounts to works contract and no technical expertise are required so as to make the assessee liable under the provisions of Section 194Jofthe IT Act. 47. Upon careful consideration we find ourselves in agreement with the finding of ld. CIT(A), which is also in consonance with ITAT decision as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... third party. For providing document management services, a service provider is not required to possess any high level of technical knowledge and it is akin to routine filing/ maintenance of documents and maintenance work. Thus, such service provider is not rendering any technical services. Thus, section 194J of Act is not applicable on payments made towards document management charges and it is in the nature of 'work1 and will fail under section 194C of the Act. 7.7 In view of the above, I do not agree with the stand adopted by the AO. Since the Appellant has already deducted TDS under section 194C of the Act on the document management charges, the AO is directed not to consider the Appellant as assessee in default under Section 201(1) of the Act as there is no short deduction of tax by the Appellant. The demands of tax under section 201(1) are hereby deleted. 51. Against the above order Revenue is in appeal before us. 52. We have heard both the counsel and perused the records. The ld. Counsel of the assessee inter alia placed reliance upon the order of the ld. Commissioner of Income tax(Appeals) and has submitted that this issue is also covered in its favour ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nical or professional work which required special skills but simple, basic and repetitive nature of work and we are inclined to opine that the order of CIT(A) is correct and deserved to be upheld. In view of the above facts, we dismiss the ground no 1 raised by the revenue by upholding the order of FAA on this point. 54. Upon careful consideration we find ourselves in agreement with the finding of the ld.CIT(A), which is also in consonance with the ITAT decision as mentioned above. Hence, we uphold the order of ld.CIT(A) on this issue. ( iii) No liability on deductor to pay tax when tax is already paid by deductee: 55. On this issue the ld. CIT(A) has granted some relief to the assessee on the issue of TDS deduction u/s. 194H on discount and incentive on sale of STBs and RCVs on the ground that the recipients would have paid the applicable tax on the respective taxable income. Hence, in view of the decision of the Hon'ble Apex Court decision in the case of Coca Cola Expt. Corpn. Vs. ITO [1998] 231 ITR 200 (SC) the taxes cannot be recovered from the assessee. 56. In view of our adjudication in assessee s appeal that the assessee is not liable for tax ..... X X X X Extracts X X X X X X X X Extracts X X X X
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