2012 (2) TMI 80 - HC - Income Tax

Non-deduction of tax at source - dairy business - milk sold to concessionaires Revenue contending concessionaires to be agents and assessed difference between MRP of the product & purchase price to be commission TDS u/s 194H - Held that - In present case, concessionaire becomes the owner of the milk and the products on taking delivery of the same from the Dairy. He thus purchased the milk and the products from the Dairy and sold them at the MRP. The difference between the MRP and the price which he pays to the Dairy is his income from business. It cannot be categorized as commission. The Dairy may have fixed the MRP but ownership of products vests and is transferred to the concessionaires. The sale is subject to conditions, and stipulations. This by itself does not show and establish principal and agent relationship. The supervision and control required in case of agency is missing. It is irrelevant that the concessionaires were operating from the booths owned by the Dairy and were also using the equipment and furniture provided by the Dairy Decided against the Revenue.

Issues Involved:
1. Whether the relationship between the assessee and the concessionaires is that of principal-to-principal or principal-to-agent.
2. Applicability of Section 194H of the Income Tax Act regarding tax deduction at source on payments made to concessionaires.
3. Relevance of the Delhi Milk Scheme (DMS) case to the current case.

Detailed Analysis:

1. Principal-to-Principal vs. Principal-to-Agent Relationship:

The primary issue revolves around the nature of the relationship between the assessee (M/s Mother Dairy India Ltd. and Mother Dairy Food Processing Ltd.) and their concessionaires. The assessee contended that the relationship was principal-to-principal, asserting that the concessionaires purchased the products outright and bore all risks associated with the goods. The concessionaires paid for the products upon delivery, and any unsold or damaged goods were their responsibility.

The Assessing Officer (AO) and CIT(Appeals) disagreed, citing clauses in the agreement that suggested the assessee retained significant control over the concessionaires, such as the right to inspect booths, control over pricing, and references to payments as "commission" in internal circulars. They concluded that the relationship was principal-to-agent, necessitating tax deduction under Section 194H.

The Tribunal, however, reviewed the agreement and upheld the assessee's stance, noting that the property in the goods transferred to the concessionaires upon delivery, making them owners of the goods. The Tribunal emphasized that the terms ensuring the maintenance of booths and equipment were protective measures and did not alter the fundamental nature of the relationship to that of principal and agent.

2. Applicability of Section 194H:

Section 194H of the Income Tax Act mandates tax deduction at source on payments classified as commission. The AO argued that the payments to concessionaires fell under this category, thus requiring tax deduction. However, the Tribunal observed that the difference between the purchase price and the MRP, retained by the concessionaires, was their business income and not commission.

The Tribunal's decision was based on the fact that the concessionaires bore the risk of unsold goods and could not return them to the assessee, indicating a sale rather than a commission-based transaction. The Tribunal concluded that Section 194H was not applicable as the relationship was principal-to-principal.

3. Relevance of the Delhi Milk Scheme (DMS) Case:

The Revenue relied on the Delhi High Court's judgment in the DMS case, where the relationship was deemed principal-to-agent, and Section 194H was applied. However, the Tribunal distinguished the present case from DMS, noting critical differences in the agreements. In the DMS case, unsold goods were returned to DMS, and daily cash collections were handed over, indicating an agency relationship. No such conditions existed in the agreements of the current case.

The Tribunal highlighted that the agreements in the present case were consistent and not redrafted, unlike in the DMS case. Thus, the Tribunal and subsequently the High Court concluded that the DMS judgment was not applicable.

Conclusion:

The High Court upheld the Tribunal's findings, affirming that the relationship between the assessee and the concessionaires was principal-to-principal. Consequently, Section 194H did not apply, and there was no requirement for tax deduction at source on the payments made to the concessionaires. The appeals by the Revenue were dismissed, with no substantial question of law arising from the Tribunal's order. The identical facts and agreements in the case of Mother Dairy Food Processing Ltd. led to a similar dismissal of the Revenue's appeals.

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