Tds), Pune v. M/S. Idea Cellular Ltd

DDR IN THE HIGH COURT OF JUDICATURE AT BOMBAYORDINARY ORIGINAL CIVIL JURISDICTION INCOME TAX APPEAL NO. 1353 OF 2017 The Commissioner of Income-tax (TDS), Pune ..Appellant vs. M/s. Idea Cellular Ltd. ..Respondent …........ Mr. Sham Walve for appellant. Mr. Jehangir Mistri, Senior Counsel a/w. Mr. Atul Jasani forrespondent. …........ CORAM : NITIN JAMDAR & M.S.KARNIK, JJ. DATE : 13 JANUARY 2020 P.C.:- Heard learned counsel for the parties. 2.The Appellant - Revenue challenges the order dated 4January 2017 passed by the Income Tax Appellate Tribunal inIncome Tax Appeal No. 1867 to 1870/PUN/2014. 3.This Appeal pertains to the Assessment Year 2010-11. 43. itxa 1353-17.doc 4.The following question of law has framed as substantialquestion of law by the Appellant – Revenue :- “(a)Whether on the facts and circumstances of the case and in law, the Hon’ble Income Tax Appellate Tribunal erred in holding the discount given by the assessee to its distributors on prepaid SIM Cards does not require deduction of tax under Section 194H of the Income Tax Act and subsequently erred in holdingpenalty under Section 271C is not applicable ?and in law, the Hon’ble Income Tax Appellate Tribunal erred in holding the discount given by the assessee to its distributors on prepaid SIM Cards does not require deduction of tax under Section 194H of the Income Tax Act and subsequently erred in holdingpenalty under Section 271C is not applicable ? (b)Whether on the facts and circumstances of the case and in law, the Hon’ble Income Tax Appellate Tribunal erred in setting aside the case to the Assessing Officer ?”and in law, the Hon’ble Income Tax Appellate Tribunal erred in setting aside the case to the Assessing Officer ?” 5.The Tribunal in the impugned order refers to its decision inthe quantum Appeal of the Respondent – Assessee holding thatdiscount offered by the Respondent – Assessee to the distributorsis not in the nature of commission within the meaning of Section194H of the Income Tax Act and therefore, the Respondent –Assessee cannot be considered as an assessee in default andaccordingly, not liable for penalty. It is on the basis of this findingthat the question of law is framed. 6.Today we have disposed of the quantum Appeal whereinquantum Appeals filed by the Appellant – Revenue have beendismissed confirming the finding of the Tribunal regardingliability of the Respondent – Assessee holding in favour of the 43. itxa 1353-17.doc Respondent – Assessee. In these circumstances, the questions oflaw as proposed do not give rise to any substantial question of law.The Appeal is accordingly disposed of. (M.S.KARNIK, J.) (NITIN JAMDAR, J.) DigitallyDikshasigned byDiksha RaneDate:Rane2020.01.1517:18:27+0530