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Income Tax Appellate Tribunal, DELHI BENCH: ‘A’ NEW DELHI
Before: SHRI N.K.BILLAIYA & SHRI N.K. CHOUDHARY
2006-07 to 2013-14 & 2015-16 respectively u/s 250(6) of the Income Tax Act, 1961 (hereinafter called as the ‘Act’). As the issue 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 194H of the Act, on the payments of commissions/payments made to the distributors, which was decided against the assessee by the Ld. CIT (A).
On feeling aggrieved against the orders passed by the different CITs (A) for different assessment years, the assessee preferred the instant appeals.
Instead of arguing the appeals on merit, the assessee has filed declaration u/s 158A(1) of the Act by claiming that the identical question of law which is similar to the issue involved in the appeals under consideration, is pending before the Hon’ble Supreme Court of India in the case titled as Bharti Airtel Ltd. (The Assessee) vide SLPs (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 outcome of the afore-stated Appeals pending before the Apex Court and can be subjected thereto .
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 declaration of the assessee by submitting that the issue involved in the instant appeals qua applicability of TDS provisions of Section 194H of the Act on transaction of difference between the distributor’s 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 before the Supreme Court of India.
We have considered the declaration dated 06.03.2018 filed u/s 158A(1) of the Act as well as report dated 20.03.2018 filed by the Assessing Officer and relevant provisions of law as applicable thereto . The assessee has furnished declaration under section 158A in accordance 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 issue involved in the Special Leave Petitions (C) (supra) before the Supreme Court of India. Considering the same, we feel it appropriate to issue directions u/s 158A of the Act, hence we direct the Assessing Officer to follow the final outcome of the case to be decided by the Supreme Court of India, to the instant cases/assessment years involved herein, and consequently amend the Assessment orders, if require, to give effect to the final outcome of the cases as stated above pending before the Apex Court.
As on today, there is High Court judgment as referred by the Ld CITs(A), against the issue in appeals, based on which the Appeals of the Assessee have been dismissed, therefore the Appeals of the Assessee are liable to be dismissed, however subject to the directions made above u/s 158A of the Act.
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