T.R. MEENA, A.M. The revenue has filed the present Misc. applications on 25/3/2015 against the order of the ITAT, Jaipur Bench, Jaipur dated 13/02/2015 passed in S.A. No. 01 & 02/JP/2015. M.A. No. 20 & 21/JP/2015 ACIT (TDS) Vs. Vodafone Digilink Ltd. 2

2. The revenue claimed that the ld ITO (TDS) has created total demand for F.Y. 2012-13 and 2013-14 of Rs. 5,68,95,553/- on account of non-deduction of TDS on roaming charges and prepaid commission paid to distributors by order U/s 201(1) and 201(1A). The appeal of the assessee has been dismissed by the ld CIT(A). The Honble ITAT, Jaipur bench, Jaipur has allowed the stay petitions of the assessee by holding that the appellant had paid substantial amount against the total demand created by the ITO TDS-2, Jaipur on the same issue. The Honble ITAT has contended that the Honble Supreme Court has granted interim stay on recovery against tax on account of roaming charges vide order dated 28/08/2011. Therefore, the Honble ITAT, Jaipur Bench, Jaipur has allowed the stay against the entire remaining unpaid demand till the disposal of the appeal before the ITAT or 180 days from the date of order whichever is earlier. The ld ACIT, TDS, Jaipur has further submitted as under:- a) Honble ITAT has based this decision on the fact that Honble Supreme Court has granted interim stay on recovery against tax on account of roaming charges vide order dated 28/01/2011 and has stayed the entire demand in the present case based on this judgment. This is M.A. No. 20 & 21/JP/2015 ACIT (TDS) Vs. Vodafone Digilink Ltd. 3 erroneous considering the fact that in A.Y. 2012-13 this is not an issue at all while for both the year almost 85% of the demand is on account of non-deduction of TDS on prepaid commission paid to distributors. b) With regard to the demand on the issue of non deduction of TDS on commission paid to distributors, it is important to mention that the ld ITAT, Jaipur has itself dismissed the appeal of the assessee on the same issue in earlier years on merit vide order No. ITA No. 250 to 252/JP/2012 for the A.Y. 2007-08 to 2009-10 and departmental appeal allowed vide No. 239/JP/2012 for the A.Y. 2009-10 dated 29/08/2013. Since the Honble ITAT Jaipur has taken a considered view in earlier years, that assessee has committed default U/s 201(1) for deduction of TDS in prepaid commission paid to distributors. Hence granting stay of demand on this very issue is not in consonance with their own decision. Approval for filing of Miscellaneous Application is accorded by worthy CIT (TDS), Jaipur vide letter No. 2978 dated 23/03/2015. Further he prayed that the Honble ITAT, Jaipur Bench, Jaipur reconsider the stay on demand granted for six months and revoke the same. Alternatively, the assessee may be asked to pay the entire demand corresponding to the issue on non deduction of TDS on prepaid commission paid to distributors on which ld ITAT has already decided M.A. No. 20 & 21/JP/2015 ACIT (TDS) Vs. Vodafone Digilink Ltd. 4 the issue against the assessee and despite this order neither having been revised nor stayed, the decision is not being followed by the assessee in subsequent years.

3. At the outset, the ld AR of the assessee has argued that both the issues are covered by the Honble Bench decision vide order dated 12/06/2015 in case of M/s Bharti Hexacom Limited Vs. ITO, TDS-II, Jaipur in ITA No. 656/JP/2010 and held that TDS is not liable to be deducted on commission payment and roaming charges, therefore, M.A. filed by the revenue may be dismissed.

4. We have heard the rival contentions of both the parties and perused the material available on the record. The Coordinate Bench vide order dated 12/6/2015 in the case of M/s Bharti Hexacom Limited Vs. ITO, TDS-II, Jaipur in ITA No. 656/JP/2010 has held that no TDS is liable to be deducted on commission payment and roaming charges paid by the assessee. The assessees case has been already fixed and adjourned for short date on the request of the revenue i.e. for 30/09/2015. Therefore, both the issues will be addressed in the appeal itself. The revenues M.As. are not maintainable on given facts and M.A. No. 20 & 21/JP/2015 ACIT (TDS) Vs. Vodafone Digilink Ltd. 5 circumstances. Therefore, we dismiss the M.A. applications filed by the revenue.

5. In the result, both the MA petitions are dismissed. Order pronounced in the open court on 21/09/2015. Sd/- Sd/- yfyr dqekj Vh-vkj-ehuk (Laliet Kumar) (T.R. Meena) U;kf;d lnL;@Judicial Member ys[kk lnL;@Accountant Member Tk;iqj@Jaipur fnukad@Dated:- 21 st September, 2015 *Ranjan vknsk dh izfrfyfi vxzsfkr@Copy of the order forwarded to:

1. vihykFkhZ@The Appellant- The ACIT, TDS, Jaipur.

2. izR;FkhZ@ The Respondent- Vodafone Digilink Ltd., Jaipur

3. vk;dj vk;qDr@ CIT

4. vk;dj vk;qDr@ CIT(A)

5. foHkkxh; izfrfuf/k] vk;dj vihyh; vf/kdj.k] t;iqj@DR, ITAT, Jaipur

6. xkMZ QkbZy@ Guard File (M.A. 20 & 21/JP/2015) vknskkuqlkj@ By order, lgk;d iathdkj@Asst. Registrar