M/S DICKSON ELECTRONICS,SRINAGAR vs. INCOME TAX OFFICER WARD -3(1), SRINAGAR

ORDER Per Anikesh Banerjee, JM:

The instant appeal is directed against the order of Ld. Commissioner of Income Tax (Appeal)-2, Jalandhar, {in brevity CIT(A)} bearing appeal no. 179/16-17/CIT(A)-2/Jal date of order 15.11.2017, order passed u/s. 250(6) of the Income Tax Act, 1961 (in brevity of the Act) for the Assessment year 2013-14. The impugned order was generated from the order of Income Tax Officer, Ward-3(1) Srinagar KMR (in brevity A.O) order passed u/s.143(3) of the Act date of order 19.03.2016.

M/s. Dickson Electronics, Srinagar Asstt Year 2013-14 2. Tersely we advert the fact of the case. That assessee is a franchise of Bharat Sachar Nigam Ltd.(in brevity BSNL). The assessee sold SIM-Card on behalf of BSNL. Copy of agreement is annexed herewith from page no. 182 to 205 of APB. Nature of transaction is the discount on sale of Sim-card to the parties on behalf of BSNL. The ld. AO had treated this discount as Commission.

On violation of section 194H read with section 40(a)(ia) of the Act, ld. AO added back amount of Rs.8,60,955 as taxable income with the total income of the assessee. In other issue the interest was added back at Rs.51861/- for the reason that assessee declared the interest income at 5,56,386/- against the interest income of 6,08,068/- earned in the year under consideration as per Form No. 26AS of Income Tax Rules, 1962. The interest amount was added back with the total income of the assessee. Aggrieved assessee filed an appeal before the CIT(A). The ld. CIT(A) upheld the order of the ld. AO. Being aggrieved assessee filed an appeal before us.

M/s. Dickson Electronics, Srinagar Asstt Year 2013-14 of sale bills are annexed in page no. 104 to 169 of APB. The assessee sold the goods @4% deduction. The ld. Counsel of the assessee prayed for deletion of the addition of Rs.8,60,955/-.

“2. As before the Authorities below, the assesse maintains that the PR was not liable to deduct tax at source under section 194H of the Act. The assesse has placed reliance on ‘Bharti Airtel Limited vs. DCIT’, 372 ITR 33 Karnataka, wherein, while holding that the contention precedent for deduction of tax at source concerning commission paid on sale of M/s. Dickson Electronics, Srinagar Asstt Year 2013-14 prepaid Sim Card to distributors, is that income shall have accrued and that where there is no accrual of income, tax is not taxable on discount allowed to distributor. The Ld. DR, on the other hand, has placed reliance on the decision in case of Idea Cellular Ltd. 325 ITR 148 Delhi on this issue. It is seen, that the judicial view of the various High Courts is divergent regarding the deductibility or otherwise of tax on discount allowed to distributor on sale of prepaid Sim Card. However, there is no decision by the Hon’ble Jurisdictional High Court, either way. That being so, all the cases having been taken into consideration and distinguished therein and the matter having decided in favour of assesse, respectfully following ‘Bharti Air tel Limited (supra), we hold, in accordance therewith, that no tax was liable on the discount allowed by BSNL to its distributors on sale of prepaid sim card,d and that that being so, no question of levy of any interest under section 201(1A) of the Act arises. Accordingly, the grievance of the assesse accepted and the levy of interest under section 201(1A) of the Act is cancelled.”

5.1 In this result the assessee had not violated the provisions of section 194H of the Act, so addition amounting to Rs.8,60,955/- is deleted.

5.2 Relating to interest amount of Rs.51,682/- for mismatch in the declared interest in books of assessee and the interest as per 26AS, the assessee was not able to explain the difference before the Bench. So, the addition made amount to Rs.51,682/- on account of undisclosed interest is sustained.

M/s. Dickson Electronics, Srinagar Asstt Year 2013-14 7. In the result, appeal of the assessee is partly allowed.

Order pronounced in the open court on 27.07.2022