2014 (7) TMI 93 - HC - Income Tax

TDS on Payments made to agents for procuring advertisements - Trade discount OR commission Applicability of provisions of Chapter XVIIB Held that - The format agreement and one of the agreements executed between advertising agencies, which had not been registered with INS and the assessee had lot of difference between the terms and conditions in the agreements - the assessee had entered into agreements with the advertising agencies which had not registered with INS, were to be governed by the terms and conditions stipulated in the agreements executed between such agencies and the respondent-assessee, and in which case the question of looking into format agreement (Appendix-IV) would not arise. Tribunal was of the view that the Appendix-IV executed by the assessee with the accredited agencies and the agreements executed between unregistered advertising agencies and the assessee - the Tribunal has not considered all the aspects/questions in proper perspective the matter is remitted back to the Tribunal for adjudication Decided in favour of Revenue.

Summary

Issues:
1. Interpretation of trade discount vs. commission for payments made to agents for procuring advertisements.
2. Compliance with rules and regulations governing accreditation of advertising agencies.
3. Determination of relationship between principal and agent in agreements.

Analysis:
1. The High Court heard income tax appeals challenging the Tribunal's order allowing all appeals by the respondent-assessee for the assessment years 2002-03 to 2004-05. The revenue raised a substantial question of law regarding the nature of payments made to agents for procuring advertisements, questioning whether they constituted a trade discount or a commission, and if Chapter XVIIB provisions applied.

2. The Court noted the Tribunal's assumption that all advertising agencies the assessee dealt with were registered with the Indian Newspaper Society (INS) under the Rules and Regulations Governing Accreditation of Advertising Agencies. However, the assessee's counsel admitted that not all agencies were registered with INS, and agreements with unregistered agencies did not follow the prescribed format agreements under the Rules.

3. Upon reviewing the format agreement (Appendix-IV) and actual agreements with unregistered agencies, the Court found significant differences in terms and conditions. It emphasized that agreements with unregistered agencies should be governed by their terms, not the format agreement. The Court directed the Tribunal to consider the agreements' terms, determine the relationship between principal and agent, and address the substantial question of law based on these factors.

4. The Court set aside the Tribunal's order, restoring the appeals for fresh consideration. It instructed the Tribunal to review the case in light of the Court's observations, relevant judgments, including one from the Allahabad High Court, and the terms of the format agreement and agreements with unregistered agencies. The assessee was required to provide information on accredited and unregistered advertising agencies, and both parties could submit necessary materials for the Tribunal's consideration.

5. The Court left all contentions open, urging the Tribunal to expedite the proceedings and resolve the appeals within a year from the date of the order. The judgment emphasized the need for a thorough examination of the agreements, adherence to rules and regulations, and a clear determination of the nature of payments made to agents for procuring advertisements.