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2015 (11) TMI 1133 - AT - Income TaxTDS u/s.194H - payment in the nature of Commission - difference between the MRP and the price that the franchisees pay to the Assessee - CIT(A) deleted the disallowance and held that the relationship between the Assessee and its franchisee was on a principal to principal basis and was not in the nature of relationship between principal and agent - Held that - Passing of title in the goods is important and determinative of the question whether franchisee was acting as agent or acting on a principal to principal basis of the Assessee. It is an undisputed fact that as per the terms of the agreement between the Assessee and its franchisee property in goods was to pass on delivery and the risk of ownership (in the form of the franchisee not being to sell the product or damage to the product) was that of the franchisee. When that is the factual position in the case we are of the view that the decision of the Hon ble Delhi High Court in the case of CIT Vs. Mother dairy India 2012 (2) TMI 80 - DELHI HIGH COURT was squarely applicable to the case of the Assessee. We therefore concur with the view of the CIT(A) and dismiss these appeals by the revenue. - Decided in favour of assessee.
Issues Involved:
1. Whether the difference between the Maximum Retail Price (MRP) and the price paid by franchisees to the Assessee constitutes "commission" under Section 194H of the Income Tax Act, 1961. 2. Whether the Assessee was liable to deduct tax at source on the said difference under Section 194H. 3. Whether the relationship between the Assessee and its franchisees was that of principal to principal or principal to agent. Issue-wise Detailed Analysis: 1. Definition of "Commission" under Section 194H: Section 194H mandates the deduction of tax at source on any income by way of commission or brokerage. The term "commission" includes any payment received or receivable by a person acting on behalf of another for services rendered, excluding professional services, or for any services in the course of buying and selling goods. The Assessee argued that the difference between the MRP and the price paid by the franchisees was a discount or margin, not commission. The Revenue contended it was commission, necessitating tax deduction at source. 2. Relationship Between Assessee and Franchisees: The Assessee contended that the relationship with its franchisees was on a principal to principal basis, involving outright sale of products. Key clauses of the agreement indicated that franchisees purchased the products and bore the risk of unsold or damaged stock. The Assessee highlighted that the franchisees were responsible for obtaining licenses and maintaining storage, and the agreement explicitly stated that the franchisees were not agents, servants, or employees of the Assessee. 3. Judicial Precedents and CIT(A) Findings: The Assessee relied on decisions from the Delhi ITAT in cases involving similar facts, where it was held that Section 194H was not applicable. The CIT(A) agreed with the Assessee, noting that the relationship was principal to principal, not principal to agent. The CIT(A) also referenced the Delhi High Court's decision in CIT vs. Mother Dairy India Ltd., which held that the transfer of property in goods to the concessionaire indicated a principal to principal relationship, making Section 194H inapplicable. 4. Analysis of Agreement Clauses: The AO pointed to several clauses in the agreement suggesting an agency relationship, such as deposits paid by franchisees, the right of the Assessee to fix margins, and the ability to inspect premises. However, the CIT(A) and the Tribunal found these clauses were meant to ensure quality control and protect the Assessee's goodwill, not to establish an agency relationship. 5. Tribunal's Conclusion: The Tribunal concurred with the CIT(A) that the relationship between the Assessee and its franchisees was principal to principal. The Tribunal emphasized the importance of the transfer of title and risk to the franchisees upon delivery of goods. The Delhi High Court's ruling in Mother Dairy India Ltd. was deemed directly applicable, reinforcing that the difference between MRP and the price paid by franchisees was not commission. Final Judgment: The appeals by the Revenue were dismissed, upholding the CIT(A)'s decision that the Assessee was not liable to deduct tax at source under Section 194H on the difference between the MRP and the price paid by franchisees. Order Pronounced: The judgment was pronounced in open court on 20.10.2015.
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