K.S.JHAVERI,J. - (1.) All these appeals arise out of the judgments delivered by the Income Tax Appellate Tribunal. In some of the appeals, the assessee is the appellant and in some of the matters, the Department has come by way of appeals. However, time and again the matter was adjourned and all these appeals are clubbed in view of the fact that questions of law involved in all these appeals are somewhat identical.
(2.) The basic question which was put forth for our consideration is whether the arrangement which has been worked out between the assessee company and the distributor (Agency) claimed by the Income Tax Department are covered under the provisions of Sections 194 H and/or 194 J of the Income Tax Act.
(3.) To come out all these appeals, first of all, we will give the questions which were posed in different appeals: 3.1 D.B. Income Tax Appeal No. 205 of 2005 admitted on 30.08.2005. "(i) Whether in the facts and circumstances of the case the learned Tribunal was right and justified in holding that assessee was liable to withhold tax at source under Section 194H of the Income Tax Act, 1961 amounting to Rs. 19,74,842/- (including interest) in respect of sales to its distributors, which are on a principal to principal basis and wherein property in the goods is transferred to the distributors? (ii) Whether the Tribunal was justified in ignoring the statutory books of accounts, the auditors report and the certificate issued by the auditors and merely relying on the internal Management Information System records in coming to the conclusion on the nature of the dealings with the distributors? (iii) Whether on the facts and in the circumstances of the case the Tribunal erred in law in holding that interest under Sections 201 (1A) and 220 (2) of the Income Tax Act, 1961 should be levied on the appellant when the taxes due had already been paid by the distributor(s)/ when a valid stay of recovery has been obtained? " 3.2 D.B. Income Tax Appeal No. 206 of 2005 admitted on 31.08.2005. "(i) Whether in the facts and circumstances of the case the learned Tribunal was right and justified in holding that assessee was liable to withhold tax at source under Section 194H of the Income Tax Act, 1961 amounting to Rs. 42,43,729/- (including interest) in respect of sales to its distributors, which are on a principal to principal basis and wherein property in the goods is transferred to the distributors? (ii) Whether the Tribunal was justified in ignoring the statutory books of accounts, the auditors report and the certificate issued by the auditors and merely relying on the internal Management Information System records in coming to the conclusion on the nature of the dealings with the distributors? (iii) Whether on the facts and in the circumstances of the case the Tribunal erred in law in holding that interest under Sections 201 (1A) and 220 (2) of the Income Tax Act, 1961 should be levied on the appellant when the taxes due had already been paid by the distributor(s)/ when a valid stay of recovery has been obtained?" 3.3 D.B. Income Tax Appeal NO. 10 of 2007 admitted on 07.02.2007. "(a) Whether in the facts and circumstances of the case the learned Tribunal was justified in holding the appellant as an assessee in default under section 201 of the Act, for alleged failure to deduct tax at source under Section 194 H of the Act in respect of sales to its distributors, which are on a principal to principal basis and wherein property in the goods is transferred to the distributors? (b) Whether on the facts and circumstances of the case, selective reliance can be validly placed by the Tribunal on the management Information System records and other extraneous records on irrelevant considerations, ignoring statutory financial books of account in arriving at any conclusion with regard to the character of dealings between the Appellant and the distributors? (c) Whether on the facts and in the circumstances of the case the Tribunal erred in law in holding that interest under section 201(1A) of the Act should be levied on the Appellant when the taxes due had already been paid by the distributor(s)?" 3.4 D.B. Income Tax Appeal No. 55 of 2007 admitted on 26.10.2007. "(i) Whether the facts and circumstances of the case the learned Tribunal was right and justified in holding that assessee was liable to withhold tax at source under section 194H of the Income-tax Act, 1961 amounting to Rs. 19,74,842/ (including interest) in respect of sales of its distributors, which are on a principal to principal basis and where property in the goods is transferred to the distributors? (ii) Whether the Tribunal justified in ignoring the statutory books of accounts, the auditors report and the certificate issued by the auditors and merely relying on the internal Management Information System records in coming to the conclusion on the nature of the dealings with the distributors?" 3.5 D.B. Income Tax Appeal No. 6 of 2008 admitted on 11.03.2011. "(i) Whether on the facts and circumstances of the case the Tribunal erred in law in holding that the notice proposing penalty is time barred and consequently the order levying penalty under Section 271 C of the Act was void ab initio? (ii) Whether on the facts and in the circumstances of the case the Tribunal erred in law in upholding the levy of penalty under Section 271 C for the alleged failure of the appellant to deduct tax at source under Section 194H of the Act in respect of sale of products to its distributors?" 3.6 D.B. Income Tax Appeal No. 7/2008 admitted on 11.03.2011. "(i) Whether on the facts and circumstances of the case the Tribunal erred in law in holding that the notice proposing penalty is time barred and consequently the order levying penalty under Section 271 C of the Act was void ab initio? (ii) Whether On the facts and in the circumstances of the case the Tribunal erred in law in upholding the levy of penalty under Section 271 C for the alleged failure of the appellant to deduct tax at source under Section 194H of the Act in respect of sale of products to its distributors?" 3.7 D.B. Income Tax Appeal No. 540/2009 admitted on 11.03.2011. "(i) Whether on the facts and circumstances of the case the Tribunal erred in law in holding that the notice proposing penalty is time barred and consequently the order levying penalty under Section 271 C of the Act was void ab initio? (ii) Whether On the facts and in the circumstances of the case the Tribunal erred in law in upholding the levy of penalty under Section 271 C for the alleged failure of the appellant to deduct tax at source under Section 194H of the Act in respect of sale of products to its distributors?" 3.8 D.B. Income Tax Appeal No. 1 of 2014 admitted on 27.01.2014. "1. Whether on the facts and in circumstances of the case, the Tribunal erred in Taw in upholding the order of the CIT (A) treating the appellant as an assessee in default under section 201(1), for alleged failure to deduct TDS under section 194H of the Act in respect of discount. Allowed on pre-paid SIM cards and Talk time sold to pre-paid distributors by the appellant? 2. Whether against a deductor who fails to deduct the tax at source, the liability of payment of tax can also be fastened under section 201 apart from Liability of interest and penalty? 3. Whether, according to section 191 read with section 201, a deductor, who fails to deduct tax at source can be deemed to be an assessee in default without adverting to the issue and recording a finding that the assessee who is liable to pay tax directly had paid tax? 4. Whether on the facts and circumstances of the case, the Tribunal was correct in holding that the CIT(A) has no jurisdiction to set aside/restore the matter to the assessing officer. 5. Whether on the facts and in circumstances of the case, the Tribunal erred in Law in independently directing the AO to carry out such verification and delete the demand under section 201(1) of the Act in relation to income on which tax had been paid by the prepaid distributors?" 3.9 D.B. Income Tax Appeal No. 2 of 2014 admitted on 27.01.2014. "1. Whether on the facts and in circumstances of the case, the Tribunal erred in Taw in upholding the order of the CIT (A) treating the appellant as an assessee in default under section 201(1), for alleged failure to deduct TDS under section 194H of the Act in respect of discount. Allowed on pre-paid SIM cards and Talk time sold to pre-paid distributors by the appellant? 2. Whether against a deductor who fails to deduct the tax at source, the liability of payment of tax can also be fastened under section 201 apart from Liability of interest and penalty? 3. Whether, according to section 191 read with section 201, a deductor, who fails to deduct tax at source can be deemed to be an assessee in default without adverting to the issue and recording a finding that the assessee who is liable to pay tax directly had paid tax? 4. Whether on the facts and circumstances of the case, the Tribunal was correct in holding that the CIT(A) has no jurisdiction to set aside/restore the matter to the assessing officer. 5. Whether on the facts and in circumstances of the case, the Tribunal erred in Law in independently directing the AO to carry out such verification and delete the demand under section 201(1) of the Act in relation to income on which tax had been paid by the prepaid distributors?" 3.10 D.B. Income Tax Appeal No. 3/2014 admitted on 27.01.2014. "1. Whether on the facts and in circumstances of the case, the Tribunal erred in Taw in upholding the order of the CIT (A) treating the appellant as an assessee in default under section 201(1), for alleged failure to deduct TDS under section 194H of the Act in respect of discount. Allowed on pre-paid SIM cards and Talk time sold to pre-paid distributors by the appellant? 2. Whether against a deductor who fails to deduct the tax at source, the liability of payment of tax can also be fastened under section 201 apart from Liability of interest and penalty? 3. Whether, according to section 191 read with section 201, a deductor, who fails to deduct tax at source can be deemed to be an assessee in default without adverting to the issue and recording a finding that the assessee who is liable to pay tax directly had paid tax? 4. Whether on the facts and circumstances of the case, the Tribunal was correct in holding that the CIT(A) has no jurisdiction to set aside/restore the matter to the assessing officer. 5. Whether on the facts and in circumstances of the case, the Tribunal erred in Law in independently directing the AO to carry out such verification and delete the demand under section 201(1) of the Act in relation to income on which tax had been paid by the prepaid distributors?" 3.11 D.B. Income Tax Appeal No. 4/2014 admitted on 27.01.2014. "1. Whether on the facts and in circumstances of the case, the Tribunal erred in Taw in upholding the order of the CIT (A) treating the appellant as an assessee in default under section 201(1), for alleged failure to deduct TDS under section 194H of the Act in respect of discount. Allowed on pre-paid SIM cards and Talk time sold to pre-paid distributors by the appellant? 2. Whether against a deductor who fails to deduct the tax at source, the liability of payment of tax can also be fastened under section 201 apart from Liability of interest and penalty? 3. Whether, according to section 191 read with section 201, a deductor, who fails to deduct tax at source can be deemed to be an assessee in default without adverting to the issue and recording a finding that the assessee who is liable to pay tax directly had paid tax? 4. Whether on the facts and circumstances of the case, the Tribunal was correct in holding that the CIT(A) has no jurisdiction to set aside/restore the matter to the assessing officer. 5. Whether on the facts and in circumstances of the case, the Tribunal erred in Law in independently directing the AO to carry out such verification and delete the demand under section 201(1) of the Act in relation to income on which tax had been paid by the prepaid distributors?" 3.12 D.B. Income Tax Appeal No. 124/2015 admitted on 18.10.2016. "1. Whether in the facts and circumstances of the case, the Tribunal was justified in holding that whether the assessee is liable to deduct TDS under section 194-H of IT Act, as the relation between assessee and distributor is that of Principal to Agent? 2. Whether in the facts and circumstances of the case, the TDS is applicable under section 194- J of the IT Act on roaming charges paid for facility provided by service provider, as this interconnection is managed/controlled/monitored by human intervention?" 3.13 D.B. Income Tax Appeal No. 125/2015 admitted on 18.10.2016. "1. Whether in the facts and circumstances of the case, the Tribunal was justified in holding that whether the assessee is liable to deduct TDS under section 194-H of IT Act, as the relation between assessee and distributor is that of Principal to Agent? 2. Whether in the facts and circumstances of the case, the TDS is applicable under section 194- J of the IT Act on roaming charges paid for facility provided by service provider, as this interconnection is managed/controlled/monitored by human intervention?" 3.14 D.B. Income Tax Appeal No. 126/2015 admitted on 18.10.2016. "1. Whether in the facts and circumstances of the case, the Tribunal was justified in holding that whether the assessee is liable to deduct TDS under section 194-H of IT Act, as the relation between assessee and distributor is that of Principal to Agent? 2. Whether in the facts and circumstances of the case, the TDS is applicable under section 194- J of the IT Act on roaming charges paid for facility provided by service provider, as this interconnection is managed/controlled/monitored by human intervention?" 3.15 D.B. Income Tax Appeal No. 131/2015 admitted on 18.10.2016. "1. Whether in the facts and circumstances of the case, the Tribunal was justified in holding that whether the assessee is liable to deduct TDS under section 194-H of IT Act, as the relation between assessee and distributor is that of Principal to Agent? 2. Whether in the facts and circumstances of the case, the TDS is applicable under section 194- J of the IT Act on roaming charges paid for facility provided by service provider, as this interconnection is managed/controlled/monitored by human intervention?" 3.16 D.B. Income Tax Appeal No. 132/2015 admitted on 18.10.2016. "1. Whether in the facts and circumstances of the case, the Tribunal was justified in holding that whether the assessee is liable to deduct TDS under section 194-H of IT Act, as the relation between assessee and distributor is that of Principal to Agent? 2. Whether in the facts and circumstances of the case, the TDS is applicable under section 194- J of the IT Act on roaming charges paid for facility provided by service provider, as this interconnection is managed/controlled/monitored by human intervention?" 3.17 D.B. Income Tax Appeal No. 168/2015 admitted on 18.10.2016. "1. Whether in the facts and circumstances of the case, the Tribunal was justified in holding that whether the assessee is liable to deduct TDS under section 194-H of IT Act, as the relation between assessee and distributor is that of Principal to Agent? 2. Whether in the facts and circumstances of the case, the TDS is applicable under section 194- J of the IT Act on roaming charges paid for facility provided by service provider, as this interconnection is managed/controlled/monitored by human intervention?" 3.18 D.B. Income Tax Appeal No. 169/2015 admitted on 18.10.2016. "1. Whether in the facts and circumstances of the case, the Tribunal was justified in holding that whether the assessee is liable to deduct TDS under section 194-H of IT Act, as the relation between assessee and distributor is that of Principal to Agent? 2. Whether in the facts and circumstances of the case, the TDS is applicable under section 194- J of the IT Act on roaming charges paid for facility provided by service provider, as this interconnection is managed/controlled/monitored by human intervention?" 3.19 D.B. Income Tax Appeal No. 170/2015 admitted on 18.10.2016. "1. Whether in the facts and circumstances of the case, the Tribunal was justified in holding that whether the assessee is liable to deduct TDS under section 194-H of IT Act, as the relation between assessee and distributor is that of Principal to Agent? 2. Whether in the facts and circumstances of the case, the TDS is applicable under section 194- J of the IT Act on roaming charges paid for facility provided by service provider, as this interconnection is managed/controlled/monitored by human intervention?" 3.20 D.B. Income Tax Appeal No. 171/2015 admitted on 18.10.2016. "1. Whether in the facts and circumstances of the case, the Tribunal was justified in holding that whether the assessee is liable to deduct TDS under section 194-H of IT Act, as the relation between assessee and distributor is that of Principal to Agent? 2. Whether in the facts and circumstances of the case, the TDS is applicable under section 194- J of the IT Act on roaming charges paid for facility provided by service provider, as this interconnection is managed/controlled/monitored by human intervention?" 3.21 D.B. Income Tax Appeal No. 195/2015 admitted on 18.10.2016. "1. Whether in the facts and circumstances of the case, the Tribunal was justified in holding that whether the assessee is liable to deduct TDS under section 194-H of IT Act, as the relation between assessee and distributor is that of Principal to Agent? 2. Whether in the facts and circumstances of the case, the TDS is applicable under section 194- J of the IT Act on roaming charges paid for facility provided by service provider, as this interconnection is managed/controlled/monitored by human intervention?" 3.22 D.B. Income Tax Appeal No. 08/2016 admitted on 18.10.2016. "1. Whether in the facts and circumstances of the case, the Tribunal was justified in holding that whether the assessee is liable to deduct TDS under section 194-H of IT Act, as the relation between assessee and distributor is that of Principal to Agent? 2. Whether in the facts and circumstances of the case, the TDS is applicable under section 194- J of the IT Act on roaming charges paid for facility provided by service provider, as this interconnection is managed/controlled/monitored by human intervention?" 3.23 D.B. Income Tax Appeal No. 45/2016 admitted on 18.10.2016. "1. Whether in the facts and circumstances of the case, the Tribunal was justified in holding that whether the assessee is liable to deduct TDS under section 194-H of IT Act, as the relation between assessee and distributor is that of Principal to Agent? 2. Whether in the facts and circumstances of the case, the TDS is applicable under section 194- J of the IT Act on roaming charges paid for facility provided by service provider, as this interconnection is managed/controlled/monitored by human intervention?" 3.24 D.B. Income Tax Appeal No. 48/2016 admitted on 18.10.2016. "1. Whether in the facts and circumstances of the case, the Tribunal was justified in holding that whether the assessee is liable to deduct TDS under section 194-H of IT Act, as the relation between assessee and distributor is that of Principal to Agent? 2. Whether in the facts and circumstances of the case, the TDS is applicable under section 194- J of the IT Act on roaming charges paid for facility provided by service provider, as this interconnection is managed/controlled/monitored by human intervention?" 3.25 D.B. Income Tax Appeal No. 49/2016 admitted on 18.10.2016. "1. Whether in the facts and circumstances of the case, the Tribunal was justified in holding that whether the assessee is liable to deduct TDS under section 194-H of IT Act, as the relation between assessee and distributor is that of Principal to Agent? 2. Whether in the facts and circumstances of the case, the TDS is applicable under section 194- J of the IT Act on roaming charges paid for facility provided by service provider, as this interconnection is managed/controlled/monitored by human intervention?" 3.26 D.B. Income Tax Appeal No. 96/2016 admitted on 18.10.2016. "1. Whether in the facts and circumstances of the case, the Tribunal was justified in holding that whether the assessee is liable to deduct TDS under section 194-H of IT Act, as the relation between assessee and distributor is that of Principal to Agent? 2. Whether in the facts and circumstances of the case, the TDS is applicable under section 194- J of the IT Act on roaming charges paid for facility provided by service provider, as this interconnection is managed/controlled/monitored by human intervention?" 3.27 D.B. Income Tax Appeal No. 97/2016 admitted on 18.10.2016. "1. Whether in the facts and circumstances of the case, the Tribunal was justified in holding that whether the assessee is liable to deduct TDS under section 194-H of IT Act, as the relation between assessee and distributor is that of Principal to Agent? 2. Whether in the facts and circumstances of the case, the TDS is applicable under section 194- J of the IT Act on roaming charges paid for facility provided by service provider, as this interconnection is managed/controlled/monitored by human intervention?" 3.28 D.B. Income Tax Appeal No. 98/2016 admitted on 18.10.2016. "1. Whether in the facts and circumstances of the case, the Tribunal was justified in holding that whether the assessee is liable to deduct TDS under section 194-H of IT Act, as the relation between assessee and distributor is that of Principal to Agent? 2. Whether in the facts and circumstances of the case, the TDS is applicable under section 194- J of the IT Act on roaming charges paid for facility provided by service provider, as this interconnection is managed/controlled/monitored by human intervention?" 3.29 D.B. Income Tax Appeal No. 99/2016 admitted on 20.04.2017. "1. Whether in the facts and circumstances of the case, the Tribunal was justified in holding that whether the assessee is liable to deduct TDS under section 194H of the IT Act, as the relation between assessee and distributor is that of principal to agent. 2. Whether in the facts and circumstances of the case, the Tribunal has erred in law in deleting the demand under section 201(1) for non deduction of TDS under section 194H on commission payment to various distributors. 3. Whether in the facts and circumstances of the case, the TDS is applicable under section 194J on roaming charges paid for facility provided by service provider as this interconnection is managed/controlled monitored by human intervention. 4. Whether in the facts and circumstances of the case, TDS under section 194J is applicable on roaming charges paid for facilities provided by service providers. 5. Whether in the facts and circumstances of the case, the Tribunal has erred in deleting the interest under section 201(1A) on the tax demand raised under section 201(1) of the Act." 3.30 D.B. Income Tax Appeal No. 100/2016 admitted on 20.04.2017. "1. Whether in the facts and circumstances of the case, the Tribunal was justified in holding that whether the assessee is liable to deduct TDS under section 194H of the IT Act, as the relation between assessee and distributor is that of principal to agent. 2. Whether in the facts and circumstances of the case, the Tribunal has erred in law in deleting the demand under section 201(1) for non deduction of TDS under section 194H on commission payment to various distributors. 3. Whether in the facts and circumstances of the case, the TDS is applicable under section 194J on roaming charges paid for facility provided by service provider as this interconnection is managed/controlled monitored by human intervention. 4. Whether in the facts and circumstances of the case, TDS under section 194J is applicable on roaming charges paid for facilities provided by service providers. 5. Whether in the facts and circumstances of the case, the Tribunal has erred in deleting the interest under section 201(1A) on the tax demand raised under section 201(1) of the Act." 3.31 D.B. Income Tax Appeal No. 101/2016 admitted on 20.04.2017. "1. Whether in the facts and circumstances of the case, the Tribunal was justified in holding that whether the assessee is liable to deduct TDS under section 194H of the IT Act, as the relation between assessee and distributor is that of principal to agent. 2. Whether in the facts and circumstances of the case, the Tribunal has erred in law in deleting the demand under section 201(1) for non deduction of TDS under section 194H on commission payment to various distributors. 3. Whether in the facts and circumstances of the case, the TDS is applicable under section 194J on roaming charges paid for facility provided by service provider as this interconnection is managed/controlled monitored by human intervention. 4. Whether in the facts and circumstances of the case, TDS under section 194J is applicable on roaming charges paid for facilities provided by service providers. 5. Whether in the facts and circumstances of the case, the Tribunal has erred in deleting the interest under section 201(1A) on the tax demand raised under section 201(1) of the Act. 3.32 D.B. Income Tax Appeal No. 102/2016 admitted on 20.04.2017. "1. Whether in the facts and circumstances of the case, the Tribunal was justified in holding that whether the assessee is liable to deduct TDS under section 194H of the IT Act, as the relation between assessee and distributor is that of principal to agent. 2. Whether in the facts and circumstances of the case, the Tribunal has erred in law in deleting the demand under section 201(1) for non deduction of TDS under section 194H on commission payment to various distributors. 3. Whether in the facts and circumstances of the case, the TDS is applicable under section 194J on roaming charges paid for facility provided by service provider as this interconnection is managed/controlled monitored by human intervention. 4. Whether in the facts and circumstances of the case, TDS under section 194J is applicable on roaming charges paid for facilities provided by service providers. 5. Whether in the facts and circumstances of the case, the Tribunal has erred in deleting the interest under section 201(1A) on the tax demand raised under section 201(1) of the Act." 3.33 D.B. Income Tax Appeal No. 103/2016 admitted on 20.04.2017. "1. Whether in the facts and circumstances of the case, the Tribunal was justified in holding that whether the assessee is liable to deduct TDS under section 194H of the IT Act, as the relation between assessee and distributor is that of principal to agent. 2. Whether in the facts and circumstances of the case, the Tribunal has erred in law in deleting the demand under section 201(1) for non deduction of TDS under section 194H on commission payment to various distributors. 3. Whether in the facts and circumstances of the case, the TDS is applicable under section 194J on roaming charges paid for facility provided by service provider as this interconnection is managed/controlled monitored by human intervention. 4. Whether in the facts and circumstances of the case, TDS under section 194J is applicable on roaming charges paid for facilities provided by service providers. 5. Whether in the facts and circumstances of the case, the Tribunal has erred in deleting the interest under section 201(1A) on the tax demand raised under section 201(1) of the Act." 3.34 D.B. Income Tax Appeal No. 104/2016 admitted on 20.04.2017. "1. Whether in the facts and circumstances of the case, the Tribunal was justified in holding that whether the assessee is liable to deduct TDS under section 194H of the IT Act, as the relation between assessee and distributor is that of principal to agent. 2. Whether in the facts and circumstances of the case, the Tribunal has erred in law in deleting the demand under section 201(1) for non deduction of TDS under section 194H on commission payment to various distributors. 3. Whether in the facts and circumstances of the case, the TDS is applicable under section 194J on roaming charges paid for facility provided by service provider as this interconnection is managed/controlled monitored by human intervention. 4. Whether in the facts and circumstances of the case, TDS under section 194J is applicable on roaming charges paid for facilities provided by service providers. 5. Whether in the facts and circumstances of the case, the Tribunal has erred in deleting the interest under section 201(1A) on the tax demand raised under section 201(1) of the Act." 3.35 D.B. Income Tax Appeal No. 105/2016 admitted on 20.04.2017. "1. Whether in the facts and circumstances of the case, the Tribunal was justified in holding that whether the assessee is liable to deduct TDS under section 194H of the IT Act, as the relation between assessee and distributor is that of principal to agent. 2. Whether in the facts and circumstances of the case, the Tribunal has erred in law in deleting the demand under section 201(1) for non deduction of TDS under section 194H on commission payment to various distributors. 3. Whether in the facts and circumstances of the case, the TDS is applicable under section 194J on roaming charges paid for facility provided by service provider as this interconnection is managed/controlled monitored by human intervention. 4. Whether in the facts and circumstances of the case, TDS under section 194J is applicable on roaming charges paid for facilities provided by service providers. 5. Whether in the facts and circumstances of the case, the Tribunal has erred in deleting the interest under section 201(1A) on the tax demand raised under section 201(1) of the Act." 3.36 D.B. Income Tax Appeal No. 106/2016 admitted on 18.10.2016. "1. Whether in the facts and circumstances of the case, the Tribunal was justified in holding that whether the assessee is liable to deduct TDS under section 194-H of IT Act, as the relation between assessee and distributor is that of Principal to Agent? 2. Whether in the facts and circumstances of the case, the TDS is applicable under section 194- J of the IT Act on roaming charges paid for facility provided by service provider, as this interconnection is managed/controlled/monitored by human intervention?" 3.37 D.B. Income Tax Appeal No. 107/2016 admitted on 26.07.2016. "1. Whether in the facts and circumstances of the case, the Tribunal was justified in holding that whether the assessee is liable to deduct TDS under section 194-H of IT Act, as the relation between assessee and distributor is that of Principal to Agent? 2. Whether in the facts and circumstances of the case, the TDS is applicable under section 194- J of the IT Act on roaming charges paid for facility provided by service provider, as this interconnection is managed/controlled/monitored by human intervention?" 3.38 D.B. Income Tax Appeal No. 108/2016 admitted on 26.07.2016. "1. Whether in the facts and circumstances of the case, the Tribunal was justified in holding that whether the assessee is liable to deduct TDS under section 194-H of IT Act, as the relation between assessee and distributor is that of Principal to Agent? 2. Whether in the facts and circumstances of the case, the TDS is applicable under section 194- J of the IT Act on roaming charges paid for facility provided by service provider, as this interconnection is managed/controlled/monitored by human intervention?" 3.39 D.B. Income Tax Appeal No. 199/2016 admitted on 08.11.2016. "1. Whether in the facts and circumstances of the case, Tribunal was justified in holding that the provisions of section 194J are applicable on roaming charges paid for facilities provided by the Service Providers. 2. Whether in the facts and circumstances of the case, the Tribunal was justified in law in holding the payment of roaming charges to other telecom operator is subject to TDS under section 194J of the Act as fees for technical services, and accordingly holding that assessee is in default under section 201 read with section 194J of the Act." 3.40 D.B. Income Tax Appeal No. 200/2016 admitted on 20.04.2017. "1. Whether in the facts and circumstances of the case, the Tribunal was justified in holding that whether the assessee is liable to deduct TDS under section 194H of the IT Act, as the relation between assessee and distributor is that of principal to agent. 2. Whether in the facts and circumstances of the case, the Tribunal has erred in law in deleting the demand under section 201 (1) for non deduction of TDS under section 194H on commission payment to various distributors. 3. Whether in the facts and circumstances of the case, TDS under section 194J is applicable on roaming charges paid for facilities provided by service providers." 3.41 D.B. Income Tax Appeal No. 204/2016 admitted on 20.04.2017. "1. Whether in the facts and circumstances of the case, the Tribunal was justified in holding that whether the assessee is liable to deduct TDS under section 194H of the IT Act, as the relation between assessee and distributor is that of principal to agent. 2. Whether in the facts and circumstances of the case, the Tribunal has erred in law in deleting the demand under section 201 (1) for non deduction of TDS under section 194H on commission payment to various distributors. 3. Whether in the facts and circumstances of the case, TDS under section 194J is applicable on roaming charges paid for facilities provided by service providers." 3.42 D.B. Income Tax Appeal No. 209/2016 admitted on 20.04.2017. "1. Whether in the facts and circumstances of the case, the Tribunal was justified in holding that whether the assessee is liable to deduct TDS under section 194H of the IT Act, as the relation between assessee and distributor is that of principal to agent. 2. Whether in the facts and circumstances of the case, the Tribunal has erred in law in deleting the demand under section 201 (1) for non deduction of TDS under section 194H on commission payment to various distributors. 3. Whether in the facts and circumstances of the case, TDS under section 194J is applicable on roaming charges paid for facilities provided by service providers." 3.43 D.B. Income Tax Appeal No. 210/2016 admitted on 28.03.2017. "1. Whether in the facts and circumstances of the case, the Tribunal was justified in holding that whether the assessee is liable to deduct TDS under section 194H of the IT Act, as the relation between assessee and distributor is that of principal to agent. 2. Whether in the facts and circumstances of the case, the Tribunal has erred in law in deleting the demand under section 201 (1) for non deduction of TDS under section 194H on commission payment to various distributors. 3. Whether in the facts and circumstances of the case, TDS under section 194J is applicable on roaming charges paid for facilities provided by service providers." 3.44 D.B. Income Tax Appeal No. 217/2016 admitted on 20.04.2017. "1. Whether in the facts and circumstances of the case, the Tribunal was justified in holding that the provisions of section 194J are applicable on roaming charges paid for facilities provided by the Service Providers. 2. Whether in the facts and circumstances of the case, the Tribunal was justified in law in holding the payment of roaming charges to other telecom operator is subject to TDS under section 194J of the Act as fees for technical services, and accordingly holding that assessee is in default under section 201 read with section 194J of the Act. 3. Whether in the facts and circumstances of the case, the Tribunal was justified in holding that the provisions of section 194H are applicable in the case of respondent assessee despite of the fact that the different between the MRP and dealers price is nothing but "Commission". 4. Whether in the facts and circumstances of the case, the Tribunal was justified in law in deleting the order of demand under section 201 (1)/201 (A) for non deduction of TDS under section 194H on payment made for commission by the assessee to its dealers channel partners. 5. Whether in the facts and circumstances of the case, the assessee was in default under section 201(1) for non deduction of tax at source under section 194H in respect of commission payments." Contention of Mr. Ajay Vohra and Mr. Anant Kasliwal appearing on behalf of assessee Hindustan Coca Cola Beverages Pvt. Ltd., and M/s Vodafone Digilink Ltd., Mr. Jhanwar appearing on behalf of M/s Bharti Hexacom Ltd., Mr. N.M. Ranka, senior counsel with Mr. N.K. Jain appearing on behalf of Tata Teleservices Ltd. and Mr. Akhil Simlote on behalf of assessee Idea Cellular Ltd.;