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TMI Blog2021 (9) TMI 1273X X X X Extracts X X X X X X X X Extracts X X X X ..... ion of law is answered in favour of the assessee. - ITA NO.693 OF 2019 C/W ITA NOS.692/2019 & 694/2019 - - - Dated:- 12-8-2021 - HON BLE MR. JUSTICE SATISH CHANDRA SHARMA AND HON BLE MR. JUSTICE SACHIN SHANKAR MAGADUM APPELLANTS (BY SRI T.N.C. SRIDHAR, ADVOCATE FOR SRI NEERALAGI J.J., ADVOCATES) RESPONDENT (BY SRI SHARATH.S FOR SRI CHYTHANYA. K.K, ADVOCATES) JUDGMENT SATISH CHANDRA SHARMA J., The present ITAs are arising out of the order dated 8.2.2019 passed in ITA.Nos. 1942, 2206 and 2207/Bang/2018 [The Assistant Commissioner vs. M/s. Idea Cellular Limited]. 2. Regard being had to the similitude in the controversy involved in all the three cases, they are heard analogously together and a common orde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... source under Section 194H of Income-Tax Act? 5. When the matter was taken up for final hearing, it was brought to the notice of this Court by the assessee that a similar issue has been decided in Bharti Airtel Limited vs. Deputy Commissioner of Income-Tax, Circle 18(1), Bangalore [(2015) 372 ITR 33(Karnataka)] in favour of the assessee. The operative paragraphs of the order passed by the Division Bench of this Court as contained by Paragraphs 61 to 65 reads as under: 61. However, in the first instance, if the assessee accounted for only ₹ 80 and on payment of ₹ 80, he hands over the pre-paid card prescribing the MRP as ₹ 100, then at the time of sale, the assessee is not making any payment. Consequently, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e at the hands of the distributor because the distributor in turn may sell the SIM cards to a sub-distributor who in turn may sell the sim cards to the retailer and it is the retailer who sells it to the customer. The profit earned by the distributor, sub-distributor and the retailer would be dependant on the agreement between them and all of them have to share ₹ 20 which is allowed as discount by the assessee to the distributor. There is no relationship between the assessee and the sub-distributor as well as the retailer. However, under the terms of the agreement, several obligations flow in so far as the services to be rendered by the assessee to the customer is concerned and, therefore, it cannot be said that there exists a relatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hould 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 is chargeable to tax, the question of payer deducting any tax does not arise. As held by the apex court in Bhawani Cotton Mills Ltd. s case , if a person is not liable for payment of tax at all, at any time, the collection of tax from him, with a possible contingency of refund at a later stage will not make the original levy valid. 64. In the case of Vodafone Essar Celluar Ltd.,(Supra) it is necessary to look into the accounts before granting any relief to them a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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