Bharti Airtel Ltd., New Delhi V. DCIT TDS, Gurgaon

ITA 27/DEL/2018

• Counselvise Citation: [2018] 121 COUNSELVISE.COM (IT) 5907 (ITAT-DELHI)
• Duration Of Justice: 5 month(s) 4 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 07-06-2018
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: A
• Assessment Year: 2015-2016
• Appeal Filed On: 02-01-2018
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: RAVIKANT GUPTA
• Keywords: Question of law; TDS

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH: A NEW DELHI BEFORE SHRI N.K.BILLAIYA, ACCOUNTANT MEMBE R & SHRI N.K. CHOUDHARY, JUDICIAL MEMBER ITA NOS. 1793 TO 1800/DEL/2016 ( ASSESSMENT YEARS: 2006-07 TO 2013-14) BHARTI AIRTEL LTD., BHARTI CRESCENT, 1, NELSON MANDELA ROAD, VASANT KUNJ, PHASE-II, NEW DELHI. RTKB03826E VS DCIT TDS CIRCLE, GURGAON. & ITA NO.27/DEL/2018 ( ASSESSMENT YEAR: 2015-16) BHARTI AIRTEL LTD., BHARTI CRESCENT, 1, NELSON MANDELA ROAD, VASANT KUNJ, PHASE-II, NEW DELHI. RTKB03826E VS DCIT TDS CIRCLE, GURGAON. ASSESSEE BY SH. ANIL BHALLA, CA REVENUE BY SH. RAVI KANT GUPTA, SR. DR ORDER PER BENCH THE ASSESSEE HAS PREFERRED THE AFORESAID APPEALS ON FEELIN G AGGRIEVED AGAINST THE SEPARATE ORDERS DATED 25.01.201 6 & 31.10.2017, PASSED BY THE LD. CIT (A)-1, GURGAON RELEVANT TO THE ASSESSMENT YEARS DATE OF HEARING 07.06.2018 DATE OF PRONOUNCEMENT 07.06.2018 2 ITA NOS. 1793 TO 1800/DEL/201 6 & ITA NO. 27/DEL/2018 2006-07 TO 2013-14 & 2015-16 RESPECTIVELY U/S 250(6) O F THE INCOME TAX ACT, 1961 (HEREINAFTER CALLED AS THE ACT). AS THE I SSUE INVOLVED IN ALL THE APPEALS IS SIMILAR AND IDENTICAL, THEREFORE, FOR THE SAKE OF CONVENIENCE AND BREVITY ALL THE APPEALS HAVE BEEN TAKEN SIMULTANEOUSLY FOR ADJUDICATION BY CONSOLIDATED ORDER. MORE OR LESS THE ISSUE INVOLVED IN THE INSTANT APPEALS IS THAT WHETHER THE ASSESSEE WAS LIABLE TO DEDUCT TDS U/S 1 94H OF THE ACT, ON THE PAYMENTS OF COMMISSIONS/PAYMENTS MADE TO THE DISTR IBUTORS, WHICH WAS DECIDED AGAINST THE ASSESSEE BY THE LD. CIT (A). 2. ON FEELING AGGRIEVED AGAINST THE ORDERS PASSED BY TH E DIFFERENT CITS (A) FOR DIFFERENT ASSESSMENT YEARS, THE ASSESSEE PREFERRED T HE INSTANT APPEALS. 3. INSTEAD OF ARGUING THE APPEALS ON MERIT, THE ASSESSEE HAS FILED DECLARATION U/S 158A(1) OF THE ACT BY CLAIMING THAT T HE IDENTICAL QUESTION OF LAW WHICH IS SIMILAR TO THE ISSUE INVOLVED IN THE APPEA LS UNDER CONSIDERATION, IS PENDING BEFORE THE HONBLE SUPREME CO URT OF INDIA IN THE CASE TITLED AS BHARTI AIRTEL LTD. (THE ASSESSEE) VIDE SLP S (C) NO. 005910 005911/2005 , WHICH ARE STILL TO BE DECIDED, THEREFORE THE ISSUE INVOLVED IN THE INSTANT APPEALS MAY BE KEPT ALIVE TILL FINAL OUTCO ME OF THE AFORE-STATED APPEALS PENDING BEFORE THE APEX COURT AND CAN BE SUBJ ECTED THERETO . 4. ON THE DECLARATION OF THE ASSESSEE DATED 06.03.2018, THE REPORT WAS CALLED FROM THE ASSESSING OFFICER U/S 158A(2) OF THE ACT. VIDE REPORT DATED 20.03.2018 THE LD. ASSESSING OFFICER ADMITTED THE DECLAR ATION OF THE ASSESSEE BY SUBMITTING THAT THE ISSUE INVOLVED IN THE INST ANT APPEALS QUA APPLICABILITY OF TDS PROVISIONS OF SECTION 194H OF THE A CT ON TRANSACTION OF DIFFERENCE BETWEEN THE DISTRIBUTORS PRICE AND SALE PRICE OF THE PREPAID PRODUCT OF STARTER KITS AND PREPAID RECHARGE VOUCHERS TO ITS DISTRIBUTORS, SIMILAR TO THE ISSUE INVOLVED IN THE SLPS PENDING BEFO RE THE SUPREME COURT OF INDIA. 3 ITA NOS. 1793 TO 1800/DEL/201 6 & ITA NO. 27/DEL/2018 5. WE HAVE CONSIDERED THE DECLARATION DATED 06.03.2018 FILED U/S 158A(1) OF THE ACT AS WELL AS REPORT DATED 20.03.201 8 FILED BY THE ASSESSING OFFICER AND RELEVANT PROVISIONS OF LAW AS APPLICAB LE THERETO . THE ASSESSEE HAS FURNISHED DECLARATION UNDER SECTION 158A IN ACCOR DANCE WITH LAW ON WHICH THE CORRECTNESS OF THE CLAIM OF ASSESSEE IS NOT DISPUTED BY THE ASSESSING OFFICER. IN VIEW OF THE ADMITTED FACT THAT THE ISSUE INVOLVED IN THE APPEALS UNDER CONSIDERATION IS IDENTICAL TO THE I SSUE INVOLVED IN THE SPECIAL LEAVE PETITIONS (C) (SUPRA) BEFORE THE SUPREM E COURT OF INDIA. CONSIDERING THE SAME, WE FEEL IT APPROPRIATE TO ISSUE D IRECTIONS U/S 158A OF THE ACT, HENCE WE DIRECT THE ASSESSING OFFICER TO FOLLOW TH E FINAL OUTCOME OF THE CASE TO BE DECIDED BY THE SUPREME COURT OF INDIA, TO THE INSTANT CASES/ASSESSMENT YEARS INVOLVED HEREIN, AND CONSEQUENTLY AME ND THE ASSESSMENT ORDERS, IF REQUIRE, TO GIVE EFFECT TO THE FINA L OUTCOME OF THE CASES AS STATED ABOVE PENDING BEFORE THE APEX COURT. AS ON TODAY, THERE IS HIGH COURT JUDGMENT AS REFERRED B Y THE LD CITS(A), AGAINST THE ISSUE IN APPEALS, BASED ON WHICH TH E APPEALS OF THE ASSESSEE HAVE BEEN DISMISSED, THEREFORE THE APPEALS OF THE ASSESSEE ARE LIABLE TO BE DISMISSED, HOWEVER SUBJECT TO THE DIRECTIO NS MADE ABOVE U/S 158A OF THE ACT. 7. IN THE RESULT, THE APPEALS OF THE ASSESSEE STANDS DISMISSED IN TERMS OF DIRECTIONS STATED ABOVE. ORDER PRONOUNCED IN THE OPEN COURT ON 07.06.2018 SD/- SD/- (N.K. BILLAIYA) (N.K. CHOUDHAR Y) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 07.06.2018 *KAVITA ARORA 4 ITA NOS. 1793 TO 1800/DEL/201 6 & ITA NO. 27/DEL/2018 COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT TRUE COPY ASSISTANT REGISTRAR ITAT NEW DELHI