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TMI Blog2019 (2) TMI 1966X X X X Extracts X X X X X X X X Extracts X X X X ..... he difference between MRP and discounted prices being charged by the assessee to the distributor is a payment of commission by the assessee to the distributor. This also does not change the relationship of the assessee and its distributors from that of Principal to Principal to that of Principal and agent. In the facts of present case as discussed above, we are of the considered opinion that relationship between the assessee and the distributor is that of principal to principal and not principal to agent. DR of revenue could not point out any difference in facts in the present case and in the case which is decided by Hon ble Rajasthan High Cour [ 2018 (5) TMI 1394 - RAJASTHAN HIGH COURT] t and by the Bangalore Tribunal in assessee s own case for earlier years [ 2015 (11) TMI 860 - ITAT BANGALORE] and the judgement of Hon'ble Karnataka High Court rendered in the case of Bharti Airtel Ltd. Vs. DCIT [ 2014 (12) TMI 642 - KARNATAKA HIGH COURT] - Decided in favour of assessee. - ITA Nos. 1942, 2206 & 2207/Bang/2018 - - - Dated:- 8-2-2019 - SHRI ARUN KUMAR GARODIA, ACCOUNTANT MEMBER AND SHRI LALIET KUMAR, JUDICIAL MEMBER Appellant by : Shri R.N. Siddappaji, Addl. CIT (D ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cts in cancelling the order u/s. 201(1) 201(1A) by stating that once it is held that the right to service can be sold then the relationship between the assessee and the distributor would be that of Principal and Principal and not of Principal and Agent. 3) The Ld. CIT(A) has erred in relying on the decision of Hon'ble Karnataka High Court in the case of Bharti Airtel Ltd. (52 Taxman.com 31)(2014) which has not been accepted by the department. For these and grounds that may be raised during the course of appeal and actual hearing, the appellant prays that the order of learned Commissioner of Income Tax (Appeals) may be set aside and cancelled. 5. The ld. DR of revenue supported the order passed by the AO u/s. 201(1) and 201(1A) of IT Act, 1961 for Q3 of Financial Year 2011-12, for Q4 of Financial Year 2011-12 and for Financial Year 2012-13. 6. He submitted that this is true that there is Tribunal order in assessee s own case in favour of the assessee, for Assessment Years 2009-10 to 2012-13 in ITA Nos. 648 to 651/Bang/2014 dated 06.11.2015 copy available on pages 88 to 109 of paper book filed by the assessee in which the Tribunal has followed the judgeme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nue can show that the facts in the present case for the present years which are before the Tribunal are in line with the facts in the case of Hutchison Telecom East Ltd. Vs. CIT (supra) and not in line with the facts in assessee s own case for earlier years and in the case of Bharti Airtel Ltd. Vs. DCIT (supra), then only we can decide the issue independently without following the earlier Tribunal order in assessee s own case and binding judgement of Hon'ble Karnataka High Court rendered in the case of Bharti Airtel Ltd. Vs. DCIT (supra). In reply, the ld. DR of revenue could not point out any difference in facts in present two years and in earlier years for which the Tribunal order in assessee s own case is available and in the case of Bharti Airtel Ltd. vs. DCIT (supra). 7. The ld. AR of assessee submitted that there is no difference in facts in the present two years and the earlier years for which the Tribunal order in assessee s own case is available on record and facts are similar to the facts in the case of Bharti Airtel Ltd. vs. DCIT (supra). He also submitted that there is a later judgement of Hon ble Rajasthan High Court rendered in assessee s own case in ITA No. 90 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... time to time as per the policy of the assessee company. Thereafter the bench pointed out that as per Para 6.3.l of the said agreement, it is the duty of the distributor to ensure that Prepaid SIM Cards / Scratch Vouchers / Recharge Vouchers / V-top up etc. are to be supplied to a prospective subscriber or customer only after collecting duly filled in Customer Application Form (CAF) along with copies of Proof of Identity (POI) and Proof of Address (POA) and after due verification vis- -vis the originals and it is also prescribed in the same para that distributor and its authorized retailer shall seal and sign a declaration that they have seen the subscriber, the original Proof of Identity (POI) and Proof of Address (POA) and the photograph of the subscriber matches with the Proof of Identity and the subscriber. It is also the responsibility of the distributor or authorized retailer to ensure that the end user completely fills out the Terms and Condition leaflet and the Customer Application Form and submits the Proof of Address and Proof of Identity as stipulated by the Department of Telecommunications, Government of India. The bench pointed out that whether these services to be rend ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... end-user/ prospective subscriber/customer of the IDEA Services offered by the Authorised Retailer appointed by it, shall forthwith send these completely filled out forms along with Proof of Address (POA) and Proof of Identity (POI) to the Company, to enable the Company to keep a record of the subscriber to whom IDEA Services were provided, the denominations and the validity periods thereof as required by the Department of Telecommunications, Government of India under the terms and conditions of license granted by the Department of Telecommunications, Government of India to the Company. 9. After going through this Para of the agreement, we are of the considered opinion that the requirements as per this para is in respect of the specified conditions after complying with which the distributor or the authorized retailer can deliver the SIM Card to a prospective subscriber / customer and in our considered opinion, this requirement of the agreement does not change the character of relationship between the assessee and the distributor because this is as per the law laid down by Govt. of India and not any special requirement of the assessee. As per para 4 of the said agreement, the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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