TaxTMI 
TaxTMI 
TaxTMI 
2018 (2) TMI 424
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....ld. AR of the assessee has submitted that in the month of May, 2016 wife of the brother of the assessee expired and therefore, the assessee was out of station during the period when the limitation for filing the present appeal was to expire. The ld. AR of the assessee has submitted that the delay in filing the appeal is neither intentional nor willful but due to the circumstances which were beyond control of the assessee. Hence, he pleaded that the delay of 38 days may be condoned and the appeal of the assessee may be decided on merits. On the other hand, ld. DR has objected to the condonation of delay. 4. Having considered the rival submissions and careful perused of contents of the petition for condonation of delay as well as of the affi....
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.... Rs. 7,51,543/- debited in the P &L account but the discount was allowed by the service provider and the transaction is routed through the assessee company being a distributor. Therefore, the assessee has only made the entries in the books of accounts without having any direct role in allowing discount or commission to the retailer. It was also contended that the assesse has no discretion in fixing percentage of discount/ commission on recharge coupons but the service provider company has sole power in fixing the discount on sale of recharge coupons as it launched scheme time to time. Thus the assessee has forcefully contended that the payment of discount is made by the company directly to the retailer and the assessee was under no obligati....
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.... responsibility and when there is no direct payment or income at the time of sale of these cards to the retailer then the assessee has no obligation to deduct the tax at source. The Ld. AR of the assessee has submitted that when the assessee is not fixing any discount or commission or making the payment of same to the retailer then, the assessee is under no obligation to deduct tax at source. 8. On the other hand, the ld. DR has submitted that in the tax audit report, the Auditor of the assessee has stated that the assessee has not complied with the provisions of chapter XVII-B as no TDS has been deducted by the assessee for commission paid to the retailers either own account or through company under section 194H. He has further contended ....
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....pra) that the assessee is the service provider had no obligation to deduct TDS and accordingly when the service provider has is under no obligation to deduct tax, the distributor would also not under obligation to deduct TDS. However, the said decision is only on the issue of sale Sim cards and therefore, will not applicable in the case of the assessee. The Hon'ble Supreme Court in case of Bharat Sanchar Nigam Ltd. vs. Union of India 282 ITR 273 as also observed in paras 85 and 86 which are reproduced as under:- "85. In that case Escotal was admittedly engaged in selling cellular telephone instruments, SIM cards and other accessories and was also paying Central sales tax and sales tax under the Kerala General Sales Tax Act, 1963, as appli....
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....es tax thereon. There is insufficient material on the basis of which we can reach a decision. However, we emphasise that if the sale of a SIM card is merely incidental to the service being provided and only facilitates the identification of the subscribers, their credit and other details, it would not be assessable to sales tax. In our opinion the High Court ought not to have finally determined the issue. In any event, the High Court erred in including the cost of the service in the value of the SIM card by relying on the aspects doctrine. That doctrine merely deals with legislative competence. As has been succinctly stated in Federation of Hotel and Restaurant Association of India v. Union of India [1989] 3 SCC 634-"subjects which in one a....
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....d discount is allowed and paid by the service provider. The assessee is an intermediatetory and only recording this transaction in the books of account for the purpose of completeness. Hence, when the assessee is neither competent nor responsible nor actually paying any commission to the retailer on sale of recharge coupons to the retailers then the obligation for deduct tax u/s 194 H is attracted only against the service provider and not against the assessee who is only a distributor and receiving its share of the commission/ margins provided by the service provider. The determination of sale price of recharge coupons is in the sole domain of the service provider and the assessee is no role in determining the retail price at which the reta....