2012 (7) TMI 424 - AT - Income Tax

Discount versus commission - Marketing Expenses including Incentive and Discount - discount had been given by the appellant to persons who had booked the flat/building through the appellant and the commission which the assessee received from the builder, is passed on as a part of such commission to the original persons who booked the flat Held that - Purchasers received discount in the purchase price. - There is nothing to suggest that the purchasers of flats rendered any service to the assessee rather the assessee rendered services to the intending purchasers - provisions of section 194H are not attracted while making payments to the aforesaid intending purchasers of flats - provisions of sec. 40a(ia) of the Act are not applicable - appeal is dismissed.

Summary

Issues:
1. Disallowance of addition made by Assessing Officer under 'Marketing Expenses' as commission.
2. Whether the discount provided by the assessee to buyers constitutes commission.
3. Applicability of section 194H and 40a(ia) of the Income-tax Act.

Issue 1: Disallowance of addition made by Assessing Officer under 'Marketing Expenses' as commission

The Assessing Officer (AO) disallowed an amount claimed by the assessee under 'Marketing Expenses' as commission, totaling Rs. 51,37,584, stating that it was not actually discount but commission. The AO observed that the assessee failed to prove that the expenditure was incurred solely for business purposes. Despite the assessee's explanation and evidence provided, the AO disallowed the amount under section 40a(ia) of the Act due to non-deduction of tax at source under section 194H.

Issue 2: Whether the discount provided by the assessee to buyers constitutes commission

The Commissioner of Income Tax (Appeals) (CIT(A)) allowed the claim of the assessee, stating that the discount provided by the assessee to buyers who booked flats through the assessee did not constitute commission. The CIT(A) found that the buyers did not render any service to the assessee, and there was no principal-agent relationship between them. As per the CIT(A), the discount offered could not be treated as commission, and therefore, the provisions of section 194H were not applicable. The High Court also upheld this finding, emphasizing that the buyers paid a discounted price and did not provide any services to the assessee.

Issue 3: Applicability of section 194H and 40a(ia) of the Income-tax Act

The Tribunal analyzed the nature of the transactions where the assessee provided discounts to buyers who booked flats through the assessee. It was established that the buyers did not render any service to the assessee, and there was no principal-agent relationship. Therefore, the Tribunal concluded that the provisions of section 194H were not attracted in this case. Consequently, the provisions of section 40a(ia) were also deemed inapplicable, leading to the dismissal of the appeal by the Revenue.

In conclusion, the Tribunal dismissed the appeal filed by the Revenue against the order of the CIT(A), upholding that the discounts provided by the assessee to buyers did not constitute commission. The Tribunal found that there was no service rendered by the buyers to the assessee and no principal-agent relationship existed, leading to the inapplicability of sections 194H and 40a(ia) of the Income-tax Act.