TaxTMI 
TaxTMI 
2018 (10) TMI 1427
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.... opportunity of being heard. Appellant prays order so passed is against the principles of natural justice and deserves to be quashed. 2. On the facts and in the circumstances of the case ld. CIT (A) has grossly erred in confirming the disallowance of commission of Rs. 39,62,472/- made by ld. AO arbitrarily. Appellant prays disallowance so confirmed deserves to be deleted. 3. On the facts and in the circumstances of the case ld. CIT (A) has grossly erred in confirming the addition of Rs. 5010/- made by ld. AO alleging the same as undisclosed interest income when the same was never received by the assessee. Appellant prays addition so made deserves to be deleted. 4. That the appellant craves the right to add, delete, amend or abandon....
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.... the ld. CIT (A), therefore, the appeal of the assessee was dismissed and the disallowance made by the AO was confirmed. 4. We have heard the ld. A/R as well as the ld. D/R and considered the relevant material on record. The ld. A/R of the assessee has pointed out that an identical issue was considered by the Tribunal in assessee's own case for the assessment year 2011-12 vide order dated 19.07.2018 in ITA No. 238/JP/2016 and, therefore, the issue is now covered by the decision of this Tribunal in assessee's own case. He has filed a copy of the decision of the Tribunal in assessee's own case. 5. On the other hand, the ld. D/R has relied upon the orders of the authorities below. 6. Having considered the rival submissions as well as the re....
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....the said amount would not bring the said transaction in the category of commission paid by the assessee so as to attract the provisions of section 194H. The Coordinate Bench of this Tribunal in the case of Chocopack Enterprises vs. ITO (supra) has considered an identical issue in para 9 as under :- "9. I have considered the rival submissions as well as relevant material available on record. The assessee's firm engaged in the business of distributorship of Idea recharge cards. The issue involved in case of theassessee is in respect of sale of recharge coupons and not the sale of sim cards. Therefore to the extent the issue of sale of sim cards by the service provider it is held by the Hon'ble Karnatka High Court in the case of Bharati Air....
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....at the SIM card was "goods" within the definition of the word in the State sales tax act. 86. It is not possible for this court to opine finally on the issue. What a SIM card represents is ultimately a question of fact as has been correctly submitted by the States. In determining the issue, however the assessing authorities will have to keep in mind the following principles : If the SIM card is not sold by the assessee to the subscribers but is merely part of the services rendered by the service providers, then a SIM card cannot be charged separately to sales tax. It would depend ultimately upon the intention of the parties. If the parties intended that the SIM card would be a separate object of sale, it would be open to the sales tax au....
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....rly held that the sale of sim cards merely incidental to the service being provided and only facilitates the identification of subscribers their credit and other details it would not be assessable to sale tax. As regards the sale of recharge coupons it is clearly a transaction of sale of goods as held by the Hon'ble Supreme Court that the telephone is nothing but a service. However, since the service is provided by the company which is the service provider and assessee is only a distributor and intermediatetory, therefore, the tax liability for paying the commission, if any, is attracted u/s 194H only against the person responsible for paying the commission. In case in hand the assessee is not paying any commission to the retailers but this....
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....e benefit allowed by the service provider to the distributors and retailers is commission it is service provider who is responsible for paying the said commission and therefore, the provisions of section 194H are not attracted against the distributor. Accordingly, when the assessee is not directly and indirectly in deciding the quantum of alleged commission/discount as well as determining the retail price at which the recharge coupons is sold to the customer then the provisions of section 194H cannot be applied on the assessee. Consequently disallowance made by the AO u/s 40 (a)(ia) is deleted." Thus the Coordinate Bench has followed the decision of Hon'ble Supreme Court in the case of Bharat Sanchar Nigam Ltd. vs. Union of India, 282 IT....