2018 (7) TMI 1612 - AT - Income Tax

Tribunal Upholds Non-Deduction of TDS on Distributor Discounts

The Tribunal dismissed the appeals regarding non-deduction of TDS under Section 194H, upholding the assessee's treatment as 'assessee-in-default' and ... TDS u/s 194H - not deducting tax at source in the case of commission payments made to its distributors on prepaid connections - Held that:- Though distributor commits assessee to subscribers and exercise his authority to ensure arranging connection to subscriber, it will not alter the situation since the overall context in which such power is given to distributor has to be looked into in the circumstances of the case and the role of distributor can only be said to be a middleman between service provider on one hand (assessee herein) and ultimate consumer on the other hand. Distributor is merely a link between assessee and ultimate consumer / subscriber and distributor can at best enforce obligation on the part of assessee to provide connection / talk-time to subscriber which itself would not change the characteristic of transaction from ‘principal to agent’ to ‘principal to principal’. We therefore hold that the order passed by Assessing Officer, as confirmed by Ld CIT (A), by holding that assessee is a defaulter u/s 201(1) and consequently liable to pay interest u/s 201(1A) is in accordance with law. See VODAFONE MOBILE SERVICES LIMITED (FORMERLY KNOWN AS VODAFONE SOUTH LIMITED) VERSUS DCIT- (TDS) , CIRCLE-15 (2) , ADDL. CIT (TDS) , RANGE-2, HYDERABAD [2017 (10) TMI 380 - ITAT HYDERABAD] - Decided against assessee Issues Involved:1. Treating the assessee as 'assessee in default' for non-deduction of TDS under Section 201 read with Section 194H.2. Determining the nature of the relationship between the assessee and its distributors (Principal to Principal vs. Principal to Agent).3. Levy of interest under Section 201(1A).4. Double recovery of tax on the same income.5. Recalculation of interest under Section 201(1A).Detailed Analysis:Issue 1: Treating the Assessee as 'Assessee in Default' for Non-Deduction of TDS under Section 201 read with Section 194HThe assessee argued that the TDS officer erred in treating it as an 'assessee-in-default' under Section 201 read with Section 194H without ascertaining whether the recipient of the income had paid taxes on the alleged income. The assessee relied on several legal precedents, including Jagran Prakashan Ltd. vs. DCIT and ICICI Bank Ltd. v. DCIT(TDS), to support the claim that the Income-tax Department must confirm that the recipient has not discharged the tax liability before treating the payer as an 'assessee-in-default'.Issue 2: Nature of Relationship Between Assessee and DistributorsThe assessee contended that the relationship with its distributors was on a Principal to Principal (P2P) basis, not Principal to Agent (P2A). The agreement clauses indicated that the distributors acted independently, bore the risk of unsold stock, and were not required to remit sums collected from third parties to the assessee. The assessee argued that the discount allowed to distributors did not constitute commission under Section 194H but was a margin on the sale of SIM cards and recharge vouchers. The assessee cited the Karnataka High Court's decision in Bharti Airtel Limited vs. DCIT, which supported the view that the discount allowed to prepaid distributors is not liable for TDS under Section 194H.Issue 3: Levy of Interest under Section 201(1A)The assessee argued that if it were held liable to deduct TDS under Section 194H, no interest under Section 201(1A) should be levied if the recipients had already paid their income tax. The assessee relied on decisions such as CIT vs. Rishikesh Apartments Co-operative Housing and CIT vs. Rajasthan Rajya Vidyut Prasaran Nigam Ltd., which held that interest is compensatory and should not be charged if the tax has already been paid by the recipient.Issue 4: Double Recovery of Tax on the Same IncomeThe assessee submitted that treating it as an 'assessee-in-default' and recovering taxes would result in double recovery since the recipients of the income had already accounted for and discharged their tax liability. The assessee provided declarations from distributors confirming that the income received had been offered for tax in their returns. The assessee cited Hindustan Coca Cola Beverage Pvt. Ltd. vs. CIT, which held that tax cannot be recovered twice on the same income.Issue 5: Recalculation of Interest under Section 201(1A)The Tribunal directed the AO to recompute the interest under Section 201(1A) in light of the decision that the assessee was not liable to deduct TDS on the discount allowed to prepaid distributors.Judgment:The Tribunal dismissed the appeals regarding the non-deduction of TDS under Section 194H, following the jurisdictional High Court's decision that the relationship between the assessee and its distributors was that of Principal to Agent. The Tribunal upheld the AO's order treating the assessee as an 'assessee-in-default' under Section 201(1) and liable to pay interest under Section 201(1A). However, the Tribunal remitted the matter to the AO for recomputation of interest under Section 201(1A) and allowed the appeal for statistical purposes. The Tribunal's decision was based on the precedent set by the Andhra Pradesh High Court and other High Courts, which held that the discount allowed to distributors constituted commission under Section 194H.