TaxTMI 
TaxTMI 
2019 (1) TMI 1269
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....rakashan Limited Vs DCIT(TDS) (345 ITR 288) (All HC), as there is no finding by the TDS officer with respect to the failure of the pre-paid distributors and roaming partners to pay tax directly, which is a jurisdictional prerequisite. 1.3. Without prejudice to Grounds l.land 1.2 above, on the facts and circumstances of the case and in law, the order of the learned TDS Officer is bad in law in so far it seeks to recover tax demand under section 201 of the Act in contradiction to the settled principle enunciated by Allahabad High Court in the case of Jagran Prakashan Limited (supra) that the payer cannot be held liable for payment of the tax demand in cases involving non-deduction of tax at source and only interest liability under section 201(1A) of the Act, if any, can be levied in such cases. The grounds mentioned below are without prejudice to Ground No.l above. 2. Ground No. 2 - The proceedings under section 201(1)/(1A) of the Act initiated by the TDS officer are bad in law and void-ab-initio: 2.1. On the facts and circumstances of the case and in law, the learned CIT(A) has erred in not adjudicating that the TDS proceedings initiated by the TDS officer under section ....
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....nacting part something which is not there. The grounds mentioned below are without prejudice to Grounds Nos. 1 and 2 above. 3. Ground No. 3 - TDS on discount to prepaid distributors 3.1 On the facts and circumstances of the case and in law, the learned CIT (A) has erred in upholding the decision of the learned TDS officer that the Appellant is to be treated as an 'assessee in default' for nondeduction of tax at source under section 194H of the Act on discount extended to the distributors of its pre-paid SIM cards/ talktime during the subject financial year. 3.2 On the facts and circumstances of the case and in law, the learned CIT (A) has erred in upholding the decision of the learned TDS officer that the relationship between the Appellant and the pre-paid distributors is not that of 'Principal to Principal' and the discount allowed to them is in nature of commission liable for tax deduction at source, as envisaged under section 194H of the Act. 3.3 On the facts and circumstances of the case and in law, the learned CIT(A) has erred in holding that the provisions of section 194H of the Act would be applicable to the Appellant's case without taking cognizance of the fa....
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....rded by the income-tax authorities in Coimbatore during proceedings conducted in the case of a group company of the Appellant - Vodafone Cellular Limited, wherein it has been clearly observed that roaming facility is an automatic facility and does not involve any human intervention. 4.5. On the facts and in the circumstances of the case and in law and without prejudice to grounds 4.1 to 4.4 the learned CIT(A) has erred in not holding that characterization of a payment must be done having regard to the dominant purpose/ intention of the payment. 5. Ground No. 5 - Appellant has discharged its onus by submitting sufficient information to enable the AO to verify whether the taxes have been paid by the payee on discount/ roaming charges 5.1. On the facts and circumstances of the case and in law, the learned CIT(A) has erred in holding that submitting PANs and addresses of the payees is not enough material to enable the TDS officer to verify whether taxes have been paid by the payees. 5.2. On the facts and circumstances of the case and in law, the learned CIT(A) has erred in ignoring the ruling of the Mumbai bench of ITAT in the case of Vodafone Essar Limited (1TA Nos. 6058, ....
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....st of Rs. 72505872/-. 5. The assessee challenged the same before the LD CIT (A) who passed the order partly allowing the appeal of the assessee. Therefore, now the assessee is in appeal before us. 6. The ld AR submitted that only ground number 2 is required to be decided 1st as it has challenged that the show cause notice issued by the learned assessing officer and the consequent order passed beyond the time limit prescribed u/s 201 (3) of the income tax act. He submitted that if that issue is decided first and if it is held in favour of the assessee that the order passed by the learned AO is time barred, and then all other issues become infractuous. 7. To The above proposition, the learned departmental representative did not raise any objection and he concurred that the ground of the limitation in the appeal of the assessee is decided first and only thereafter, the issues on the merits should be decided. 8. Therefore, proceeding to argue ground number 2 of the appeal, the learned authorized representative submitted that these arguments were raised before the learned CIT - A, however it are not adjudicated. He stated that it was argued before the ld CIT (A) that the limitation ....