PR. COMMISSIONER OF INCOME TAX-8 vs. RELIANCE COMMUNICATIONS INFRASTRUCTURE LTD.

ITA.603.2017.doc IN THE HIGH COURT OF JUDICATURE AT BOMBAY O.O.C.J. INCOME TAX APPEAL NO.603 OF 2017 Pr. Commissioner of Income Tax - 8 … Appellant Vs Reliance Communications Infrastructure Ltd. … Respondent Mr.Suresh Kumar for the Appellant Mr.R.Murlidharan with Mr.B.G. Yewale I/b M/s.Rajesh Shah & Co. for the Respondent CORAM: AKIL KURESHI & S.J. KATHAWALLA, JJ.

DATED: JULY 22, 2019 P.C.: 1. This appeal is filed by the Revenue challenging the judgment of the Income Tax Appellate Tribunal. The following question is presented for our consideration: (i) Whether on the facts and circumstances of the case and in law the ITAT was justified in deleting the disallowance made by the AO of Rs.263,77,08,145/- u/s. 40a(i) of the Act, without appreciating the fact that the discount allowed by the assessee to the distributors in respect of starter packs and Page 1 of 3 Sherla V.

ITA.603.2017.doc recharge coupons for its prepaid services amounted to payment by the assessee of commission or brokerage within the meaning of Section 194H of the Act as the distributors are acting as agents of the assessee? 2. In a separate order passed today in Income Tax Appeal No.702 of 2017 concerning the same assessee, similar question was examined and rejected by making following observations: “3. The respondent assessee is a company registered under the Companies Act. The issues arise in relation to the Assessment Year 2007-2008. The first question pertains to disallowance under section 40a(i) of the Income Tax Act, 1961 (for short, ‘the act’) on the ground that according to the Assessing Officer, the assessee had deducted tax at source in terms of section 194H of the Act while making certain payments. The Tribunal in the impugned judgment allowed the assessee’s appeal on two grounds. Firstly, that the order under section 201 of the Act was passed holding the assessment to be in default of deduction of tax at source. In appeal, the Commissioner had allowed the assessee’s appeal against which the Revenue had not carried the issue further. Even on merits, the Tribunal was of the view that the payment was made on principal to principal basis and was not a payment of a principal to the agent. 3. Having heard the learned Counsel for the parties and having perused the documents on record, we do not find any error in the view of the Tribunal. The Tribunal, as noted, besides holding that the Commissioner’s order setting aside the order passed u/s 201 was not carried in appeal, had also Page 2 of 3

ITA.603.2017.doc independently examined the nature of the transaction and come to the conclusion that when the transaction was between two persons on principal to principal basis, deduction of tax at source as per section 194H of the Act, would not be made since the payment was not for commission or brokerage. 4. Coming to second and third questions, the same emanates from the disallowance sought to be made by Revenue under section 14A of the Act. The Tribunal in the impugned judgement, came to the conclusion that the assessee had not earned any exempt income and there is, therefore, no question of disallowance under section 14A that would arise. The Tribunal had relied on the decision of the Delhi High Court in the case of Cheminvest Ltd. vs. CIT, reported in 378 ITR 33 (Delhi). 5. In view of such facts, we find no error in the view of the Tribunal. The decision of the Delhi High Court in the case of Cheminvest (supra) has been followed by this Court on numerous occasions.” 3. In the result, this appeal is dismissed. (S.J. KATHAWALLA, J.) (AKIL KURESHI, J.) Page 3 of 3