9911796707
TMI Blog2022 (7) TMI 1132X X X X Extracts X X X X X X X X Extracts X X X X ..... t of amount paid to DOT for purchase of 3G spectrum. 3. The Ld. CIT(A)'s order is contrary in law and on facts and deserves to - be set aside. 4. The appellant craves leave to amend or alter any ground or add a new ground that may be necessary. 5. The appellant prays that the order of CIT(A) on the above ground be set aside and that of the AO restored. 2. The brief facts of the case are that the Hon'ble Tribunal vide its order dated 01.04.2021 has dismissed the revenue appeal and upheld the order of the CIT(A). Subsequently, the assessee has filed the miscellaneous application seeking rectification of mistake apparent in the order, were the Hon'ble Tribunal has not adjudicated the ground of appeal No.1 on the applicability of provisions of Sec. 194H of the Act on payments of discounts allowed to its prepaid distributors on sale of starter kits and prepaid recharge vouchers. Whereas, the Honble Tribunal in MA No.213/Mum/2021 dated 07.02.2021 has recalled the order for limited purposes for adjudicating the issue on applicability of provisions of Sec 194 H of the Act. 3. At the time of hearing, the Ld.AR submitted that the ground of appeal no.1 is in respect of applicabili ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Thus, three high courts and many tribunals are against the appellant on this issue. However, it is seen that the judgment of the Hon'ble Karnataka High Court in Bharti Airtel Ltd. & Ors v/s DCIT, in ITAs no.637 & 644 of 2013, dated 14th August 2014, [2014] 52 taxmann.com 31 (Karnataka)/[2015] 228 Taxman 219 (Karnataka) (MAG.) / [2015] 372 ITR 33 (Karnataka)/[2015] 274 CTR 213 (Karnataka), wherein the assessee was also a party, in ITA no. 158 of 2013, is in favour of the appellant. Relying on this decision, the 'D' Bench of the jurisdictional Tribunal has, in the case of the appellant, in ITA Nos 2043, 2044 & 2045/Mum/2014 for A.Y. 2009-10 to 2011-12, in context of proceedings u/s 201 of the I.T. Act for non deduction of TDS on discount, vide order dated 27/05/2016 held as under: - 7. We have considered the submissions of the parties and perused the material available on record in the light of the decisions relied upon by the learned Authorised Representative and the learned Departmental Representative. As could be seen, the Assessing Officer has treated the assessee as assessee in default alleging non-deduction of tax at source under section 194H, on the reasoning tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Hon'ble Karnataka High Court (supra), held that provisions of section 194H is not attracted on the discount given on sale of pre-paid starter kit and accordingly, following the decisions referred to above, we set aside the impugned order of the learned Commissioner (Appeals) and quash the demand raised by the Assessing Officer under sections 201(1) and 201(1A). The issue has also been decided in the favour of the appellant by ITAT Mumbai, in the appeal of the appellant against the assessment order for A.Y. 2006-2007 to 2008- 09, in ITA No.5031 to 5033/Mum/2016, vide order dated 27.04.2018 relying on the decision of of Hon'ble Karnataka High Court in the case of Bharti Airtel Ltd v DCIT [2015] 372 ITR 33 in which the appellant's group company Tata Tele Services Ltd was also a party. Respectfully following the above decisions in the case of the appellant, which are in favour of the appellant, it is held that the appellant was not required to deduct tax at source under section 194H of the IT Act in respect of the discounts allowed to prepaid distributors on sale of starter kits and prepaid recharge vouchers. Therefore, disallowance of Rs. 59,30,89,904/- made by the AO und ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fonc Essar Cellular Ltd Vs ACIT, TDS Kochi (2009) 32 SOT 280 and 5 The decision of Honourable ITAT Cochin in the case of Vodafone Essar Cellular Ltd Vs ACIT, TDS Kochi [2011)43 SOT 257 Thus, three high courts and many tribunals are against the appellant on this issue. However, it is seen that the judgment of the Hon'ble Karnataka High Court in Bharti Airtel Ltd. & Ors v/s DClT, in ITAs no.637 & 644 of 2013, dated 14th August 2014, [2O14] 52 taxmann.com 31 |Karnataka)/[20l5] 228 Taxman 219 (Karnataka)(MAG.)/ [2015] 372 ITR 33 (Karnataka)/[2015] 274 CTR 213(Karnataka), wherein the assesses was also a party, in ITA no,158 of 2013, is in favour of the appellant. Relying on this decision, the 'D' Bench of the jurisdictional Tribunal has, in the case of the appellant, in ITA Nos 2043, 2044 & 2045/Mum/2014 for A.Y. 2009-10 to 2011-12, vide order dated 27/05/2016 held &s under: - "We have considered the submissions of the parties and perused the material available on record in the light of the decisions relied upon by the learned Authorised Representative and the learned Departmental Representative. As could be seen, the Assessing Officer has treated the assesses as assesse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Hon'ble Karnataka High Court (supra), held that provisions of section 194H is not attracted on the discount given on sale of pre-paid starter kit and accordingly, following the decisions referred in above, we set aside the impugned Order of the learned Commissioner [Appeals) and quash the demand raised by the Assessing Officer under sections 201(1) and 201(1A) Respectfully following the above decisions in the case of the appellant, which are in favour of the appellant, it is held that the appellant was not required to deduct tax at source under section 194H of the IT Act in respect of the discounts allowed to prepaid distributors on sale of starter kits and prepaid recharge vouchers. Therefore, disallowance of RS. 57,24,22,93Q/- made by the AO under section 40(a)(ia) of the IT Act is directed to be deleted. 8. As pointed out by the Ld. counsel, the coordinate Bench of the Tribunal has decided the identical issue in assessee's own case discussed above and since the revenue has not pointed out any material change in the facts of the present case, we find no reason to interfere with the findings of the Ld. CIT(A). Hence, respectfully following the decision of the coordinate Benc ..... X X X X Extracts X X X X X X X X Extracts X X X X
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