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TMI Blog2023 (5) TMI 1400X X X X Extracts X X X X X X X X Extracts X X X X ..... nsaction being payment allowed by the assessee is treatment given by the assessee to the said transaction in its books of account. Both of these aspects are inevitably relevant for determining the nature of the transaction and consequential liability/obligation of the assessee to deduct the tax at source as per provisions of section 194H of the Act. Thus in the interest of justice, we are of the considered view that matter requires a proper verification/ examined and fresh adjudication at the level of the AO after considering terms and conditions of the agreement between assessee and distributors/dealers as well as the treatment of these transactions in the books of the assessee. Appeals of assessee are allowed for statistical purposes. - Assessment Year : 2018-19(Q-3 Q-4)), 2007-08 to 2009-10, 2016-17(Q-1) 2015-16 (Q-4) 2016-17(Q-2), 2010-11 2014-15 (Q-1 to Q-4) SHRI VIJAY PAL RAO, JUDICIAL MEMBER AND SHRI B.M. BIYANI, ACCOUNTANT MEMBER For the Assessee: Shri Sumit Nema, Sr. Adv. And Shri Gagan Tiwari, Adv For the Revenue: Shri P.K. Mishra, CIT-DR ORDER Per Bench: These 19 appeals by the assessee are directed against separate orders of Ld. Commissioner of Income Tax (Appeals) (i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oca Cola vs. CIT, 402 ITR 539. The Ld. CIT(A) did not accept the contention of the assessee in view of the decisions of jurisdictional Tribunal dated 11.12.2014 in case of M/s Idea Cellular Ltd. ITANo.267/Ind/2010, ITANo.268/Ind/2010 ITANo.181/Ind/2012 and upheld the order passed by the AO. 3. Before the tribunal the assessee has relied upon the various decisions of the different benches of the Tribunal in favour of the assessee whereas the department has relied upon the decision of Coordinate Bench of this Tribunal as well as the decisions of Hon ble Delhi High Court, Hon ble Kerala High Court and Kolkata High Court. The Ld. Sr. counsel of the assessee has reiterated his contention as raised before the Ld. CIT(A) and submitted that the nature of transaction between the assessee and distributors/dealers is not a commission but the assessee is allowing only discount to the distributors/dealers. He has filed specimen copy of the agreement between the assessee and distributors and submitted that from the terms and conditions of this agreement it cannot be inferred that the relationship between assessee and dealer is that of principal and agent but the relationship is principal to prin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r Ltd. vs. ITO (supra) as well as decision of Hon ble Delhi High Court in case of CIT vs. Idea Cellular Ltd. reported 189 taxmann.com 118, decision of Hon ble Kerala High Court in case of Vodafone Essar Cellular vs. ACIT reported 194 taxman 518 and decision of Hon ble Kolkata High Court Bharati Cellular Ltd. Vs. ACIT reported 12 taxmann.com 30. 6. He has also relied upon the order of the authorities below and submitted that the ld. CIT(A) has passed impugned order by following order of this Tribunal in case of Idea Cellular Ltd. vs. ITO dated 11.12.2014. 7. We have considered the rival submission as well as relevant material on record. The solitary issue raised in these appeal is common and identical to the issue involved in case of Bharti Airtel Ltd. vs. ITO(TDS) in ITANo.513/Ind/2014 for A.Y.2010-11 wherein vide even dated order we have considered and decided this issue as under: 7. We have considered the rival submission as well as relevant material on record. There is no quarrel that there are divergent views on the issue involved in this case wherein one set of decisions passed by the Hon ble Karnataka High Court, Hon ble Bombay High Court and Hon ble Rajasthan High Court are ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... SLP s before the Hon ble Supreme Court which are pending adjudication. The assessee has relied upon various decisions of the Tribunal including the Jaipur Bench of the Tribunal as well as Bangalore Benches of this Tribunal wherein this issue has been decided in favour of the assessee and one of us judicial member is a party to those decisions. Without going into the divergent views taken by the various Benches of this tribunal as well as by the Hon ble High Courts, at the outset we note that the Ld. AO passed order u/s 201(1)/201(1A) by following the judgment of Hon ble Delhi High Court and consequential judgment of the Tribunal following the judgment of Hon ble Delhi High Court. It is pertinent to note that though the AO has recorded the fact that distributors are appointed by the assessee through written agreements however, the AO has not considered the terms and conditions of the agreement which are crucial for determination of the nature of transaction between the assessee and distributors/dealers whether the payment allowed by the assessee is in the nature of discount or commission attracting the provision of section 194H. Further the another aspect which is also relevant for ..... X X X X Extracts X X X X X X X X Extracts X X X X
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