2016 (11) TMI 718 - HC - Income Tax

TDS u/s 194H - whether Payment received by a person from another, for services rendered, constitutes commission ? - Held that - Beer was sold by the respondent-assessee to the APBCL, and the APBCL had, in turn, sold the beer, purchased by them from the respondent-assessee, to retail dealers. Both these transactions were independent of each other, and were on a principal to principal basis. No services were rendered by the retail dealer to the respondent-assessee, and the incentive given by the respondent-assessee, to the retailers as trade discount, was only to promote their sales. The Tribunal rightly held that in the absence of relationship of a principal and agent, and as there was no direct relationship between the respondent-assessee and the retailer, the discount offered by the respondent-assessee to the retailers could only be treated as sales promotion expenses, and not as commission, as no services were rendered by the retailers to the respondent-assessee.

Summary

Issues:
Assessment of interest under section 201(1A) of the Income-tax Act for default in tax deduction at source on trade schemes and discounts.

Analysis:
The respondent-assessee, engaged in the manufacture and sale of beer, was assessed for default in tax deduction under section 201(1) and interest under section 201(1A) of the Act. The assessing authority held that discounts, not reflected in invoices, constituted payments for services rendered in the sale of goods, falling under section 194H of the Act. The Commissioner of Income-tax (Appeals) affirmed this, emphasizing the principal-agent relationship and services provided by del-credere agents. The Tribunal examined the nature of payments, emphasizing the promotion of sales through incentives to retail dealers via del-credere agents, concluding that the discounts were sales promotion expenses, not commission attracting section 194H.

The Tribunal's analysis included references to legal precedents, such as the Supreme Court judgment in Bhopal Sugar Industries Ltd. v. STO, highlighting the essence of a "Contract of Agency" and the indemnification of agents by principals. Additionally, the Tribunal cited the Gujarat High Court case of Ahmedabad Stamp Vendors Association v. UOI, emphasizing the essential element of agency to characterize payments as commission. The Tribunal disagreed with the Commissioner's view that discounts should reduce selling prices, citing the Bombay High Court case of Harihar Cotton Pressing Factory v. CIT.

Further, the Tribunal referred to the Visakhapatnam Bench's decision in Addl. CIT v. Pearl Bottling P. Ltd., where discounts to retailers were not deemed commission due to a principal-to-principal relationship. The Tribunal emphasized the absence of direct services by retail dealers to the assessee, treating the discounts as sales promotion expenses. The Tribunal's interpretation of section 194H and the nature of payments aligned with the legal principles established in the cited judgments.

In the final judgment, the High Court upheld the Tribunal's decision, noting that the transactions between the assessee, APBCL, and retail dealers were on a principal-to-principal basis. The court affirmed that the discounts offered were sales promotion expenses, not commission, as no direct services were provided by retailers to the assessee. The court found no substantial question of law or error necessitating interference with the Tribunal's order under section 260A of the Act, ultimately dismissing the appeals and miscellaneous petitions without costs.