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TMI Blog2021 (6) TMI 354X X X X Extracts X X X X X X X X Extracts X X X X ..... The Hon ble Delhi High Court and the Rajasthan High Court have given contrary findings with regard to applicability of Section 194H in case of the appellant for the same transaction in the case of the appellant. On similar transactions of other telecom operators, the Calcutta and Kerala High Courts have upheld applicability of section 194H. The Hon ble Supreme Court in the case of Synco Industries Ltd. [ 2008 (3) TMI 13 - SUPREME COURT] upheld the view taken by majority of the High Courts even though such view was against the assessee. As relying on M/S. VODAFONE WEST LTD., (FORMERLY KNOWN AS VODAFONE ESSAR GUJARAT LTD. [ 2018 (4) TMI 333 - ITAT AHMEDABAD] is not liable to deduct tax u/s.194H and 194J. Therefore, assessee is not in d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tances of the case and in law, the Ld. CIT(A) erred in upholding the order passed by the TDS Officer treating the Appellant as an 'assessee in default' under section 201 r.w.s. 194H of the Act without ascertaining and proving that whether the recipient had paid taxes on the alleged income received / receivable from the Appellant as required u/s. 191 of the Act. 2. The Appellant prays that it be held that in absence of above exercise by the TDS officer, Appellant cannot be held as 'assessee-in-default' u/s.201 r.w.s 194H. WITHOUT PREJUDICE TO GROUND NOS. I II, GROUND NO. Ill: NON DEDUCTION OF TAX AT SOURCE ( TDS ) U/S. 194H OF THE ACT ON DISCOUNT ALLOWED TO THE DISTRIBUTORS IN RESPECT OF SUPPLY OF SUBSCRIBER ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... section 201(1) of the Act and thereby levying the interest u/s. 201(1A) of the Act. 2. The Appellant prays that the interest levied under section 201(1 A) of the Act be deleted or be appropriately reduced. GROUND NO. V: GENERAL. The Appellant craves leave to add to / alter and /or amend all or any of the foregoing grounds of appeal. 2. Brief facts of the case are that except for the figures, the issues involved in case of the appellant in all the three different assessment years, addition are different however issues are common. Therefore for the sake of brevity, we would like to dispose of these appeals by way of a common order. 3. The appellant is a telecom service provider engaged in providing services in Gujarat. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as assessee in default u/s. 201(1)/201(1A) for not deducting TDS u/s. 194H of the Act. 6. Therefore in appeal before the Ld. CIT(A) who confirmed the action of the Ld. A.O. and held that appellant is liable to deduct TDS u/s. 194H of the Act and held that assessee in default u/s. 201(1)/201(1A) for not deducting u/s. 194H. 7. We have heard both the parties and gone through the relevant record and impugned order. Ld. D.R. heavily relied on the order of the A.O. and Ld. CIT(A) whereas Ld. A.R. contention was that appellant cannot be considered as assessee in default. 8. With regard to deduction of TDS on prepaid SIM cards and Recharge cards, different High Courts have taken contrary view by holding that while the service cannot be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ross total income must be determined, by setting off against the income, the business losses of earlier years, before allowing deduction under Chapter VI-A and if the resultant income is nil , then the assessee cannot claim deduction under Chapter VI-A. Thus, the argument that only the view favorable to the appellant taken by the courts should be followed and the view taken in favour of the revenue by majority of High Courts should be ignored is not a universal rule of application and in the present circumstances, where majority of the High Courts have taken the view against the appellant on an issue, respectfully such view is required to be followed. 10. Ld. A.R. cited an order of Co-ordinate Bench in assessee s own case (2015) ..... X X X X Extracts X X X X X X X X Extracts X X X X
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