The Learned Tribunal Has Followed The Following Decisionsof Various High Courts, Namely, C.i.t v. Idea Cellular Ltd.,Reported In 325 Itr 148 Del; Vodafone Essar Cellular Ltd.,Vs. Acit Reported In 332 Itr 255 Kerala And Bharti Cellularvs. Acit Reported In 244

THE HON’BLE THE CHIEF JUSTICE SRI KALYAN JYOTI SENGUPTA AND THE HON’BLE Ms. JUSTICE G. ROHINI I.T.T.A.No.291 of 2013 DATED: 17.7.2013 Between: M/s. Vodafone Essar South Ltd.,Hyderabad. … Appellant And The Deputy Commissioner of Income Tax, Hyderabad. …. Respondent THE HON’BLE THE CHIEF JUSTICE SRI KALYAN JYOTI SENGUPTA AND THE HON’BLE Ms. JUSTICE G. ROHINI I.T.T.A.No.291 OF 2013 Judgment:(per the Hon’ble the Chief Justice Sri Kalyan Jyoti Sengupta) This appeal is preferred against the judgment and order ofthe learned Tribunal dated 31.1.2013 in relation to theassessment year 2007-08 and is sought to be admittedon the following suggested questions of law: a)Whether on the facts and circumstances of the case, theHon’ble Tribunal was right in upholding the orders of theauthorities below in treating the discount offered by theappellant to its distributors as commission paid by theappellant ?Hon’ble Tribunal was right in upholding the orders of theauthorities below in treating the discount offered by theappellant to its distributors as commission paid by theappellant ? b)Whether on the facts and circumstances of the case, theHon’ble Tribunal was right in confirming the orders of thelower authorities holding that the relationship betweenappellant and its distributors was not that of a ‘Principal toPrincipal’, but only a Principal-Agent relationship ?Hon’ble Tribunal was right in confirming the orders of thelower authorities holding that the relationship betweenappellant and its distributors was not that of a ‘Principal toPrincipal’, but only a Principal-Agent relationship ? c)Whether the Tribunal was right in confirming the ordersof the lower authorities that the discount offered by theappellant on sale of Prepaid SIM cards and Rechargecoupons etc., would be a commission envisaged underSection 194H of the Income Tax Act, 1961 ?of the lower authorities that the discount offered by theappellant on sale of Prepaid SIM cards and Rechargecoupons etc., would be a commission envisaged underSection 194H of the Income Tax Act, 1961 ? d)Merely because the appellant is a service provider, doesit necessarily mean that the relationship with its distributorwould always be on ‘Principal to Agent’ basis ? Can it besaid that only in case of goods, there can either bePrincipal to Agent or Principal to Principal arrangement ?it necessarily mean that the relationship with its distributorwould always be on ‘Principal to Agent’ basis ? Can it besaid that only in case of goods, there can either bePrincipal to Agent or Principal to Principal arrangement ? e)Whether the fact that the pre-paid distributor wasrequired to undertake activities such as performingsubscriber identification, doing documentation work andenrolling them as mobile subscribers would make thepre-paid distributor an agent of the Petitioner ?required to undertake activities such as performingsubscriber identification, doing documentation work andenrolling them as mobile subscribers would make thepre-paid distributor an agent of the Petitioner ? f)Whether the fact that no such services referred to abovewere rendered in relation to recharge coupons would notimply that the relationship between the Petitioner and thepre-paid distributor is a Principal-Principal relationship asregards distribution of recharge coupons ?were rendered in relation to recharge coupons would notimply that the relationship between the Petitioner and thepre-paid distributor is a Principal-Principal relationship asregards distribution of recharge coupons ? g)Whether the Tribunal was right in holding that the taxdeduction provisions can be applied to suchunascertained or indeterminable amounts keeping in viewthe un-workability of computation provisions in suchcases ?deduction provisions can be applied to suchunascertained or indeterminable amounts keeping in viewthe un-workability of computation provisions in suchcases ? g)Whether the Tribunal was right in holding that the taxdeduction provisions can be applied to suchunascertained or indeterminable amounts keeping in viewthe un-workability of computation provisions in suchcases ?deduction provisions can be applied to suchunascertained or indeterminable amounts keeping in viewthe un-workability of computation provisions in suchcases ? h)Whether the Tribunal was right in holding that Section194H will apply to such cases where a person neithermakes any payment nor credits any sum to the accountof another person ?194H will apply to such cases where a person neithermakes any payment nor credits any sum to the accountof another person ? After reading the suggested questions of law, we are of theview that almost all the suggested questions relate to questionof fact, not law. In any view of the matter, upon hearing thelearned counsel for the appellant and after going through theimpugned judgment and order of the learned Tribunal, the onlypoint that arises for consideration is whether allowing discountto the dealers on SIM Cards and re-charge coupons will attractthe provision for tax deducted at source under the Act or not. The learned Tribunal has followed the following decisionsof various High Courts, namely, C.I.T. vs. Idea Cellular Ltd.,reported in 325 ITR 148 DEL; Vodafone Essar Cellular Ltd.,vs. ACIT reported in 332 ITR 255 Kerala and Bharti Cellularvs. ACIT reported in 244 CTR 185 Cal. It is recorded that the facts of the case in all those reported judgments are identical tothe facts of the present case. The learned Tribunal recordedthat the A.R. did not bring in any arguments to distinguish theabove cases in so far as similarity of facts and method ofaccounting are concerned. The learned Tribunal following thedecisions of the other High Courts referred to above, dismissedthe appeal and held that the provision of Section 194H isapplicable in respect of amounts paid to the agents inconnection with sale of SIM cards and other services isadaptable. Hence, we do not find any illegality or infirmity in theimpugned judgment and order of the Tribunal. The appeal is accordingly dismissed. ___________________ K.J. SENGUPTA, CJ 17.07.2013 pnb _________________ G. ROHINI, J