9911796707
|
Home
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2015 (5) TMI 796 - HC - Income TaxTDS 194H - commission or discount - discount allowed by the appellant to the distributors in respect of starter packs and recharge coupons for its prepaid service - whether amounted to payment by the appellant of commission or brokerage within the meaning of section 194H ? - Held that - The agreement between the assessee, who has been referred to therein as HTEL and Poddar Communications, who has been referred to in the agreement as the Service Provider provides that the service provider has been appointed by HTEL on the terms and conditions contained therein which include (a) that the service provider shall keep the premises open for the purpose of rendering and performing services during the office hours; (b) he shall maintain at least one telephone line and email connectivity; (c) he shall maintain minimum support staff; (d) he shall not correct, amend or remove any signets from the products of the assessee; (e) he shall keep the assessee informed as regards any infringement or violation of the intellectual property rights of the assessee; (f) he shall maintain the branch image of HTEL and shall not do anything which may tarnish or spoil or reduce the value of the assessee; (g) he shall keep the assessee informed as regards feed back received from the customers and shall also keep the assessee informed as regards the purchases and inventory; (h) he shall pay the service tax to the assessee as may be assessed and levied from time to time;(i) he shall not enter into any agreement with any third party which may be considered to be in competition of the business of the assessee; (j) he shall comply with all instructions and directions of the assessee; and (k) he shall not transfer or assign or sub-licence any of its rights and obligations. In consideration of the service to be rendered by him, he shall get a commission at the rates as per the policy to be adopted by the assessee from time to time. The terms and conditions noticed above leave no manner of doubt that the relationship between Poddar Communications and the assessee appearing from the agreement relied upon by Mr. Khaitan is that of an agent and principal. Poddar Communications appears to have been employed to act on behalf of the assessee for the purpose of feeding the retailers and through them to sell the services to the consumers. Thus the appellant was a person responsible for paying commission and, therefore, the provisions of Section 194H were attracted and the Tribunal was justified in taking the view as they did. - Decided against assesse.
Issues Involved:
1. Whether the discount allowed by the appellant to the distributors in respect of starter packs and recharge coupons for its prepaid service amounted to payment of commission or brokerage within the meaning of section 194H of the Income Tax Act, 1961. 2. Whether the appellant, in respect of the sale of starter packs and recharge coupons for prepaid service, was a person "responsible for paying" within the meaning of section 194H and could be proceeded against under section 201. Issue-wise Detailed Analysis: Issue 1: Discount as Commission or Brokerage under Section 194H The primary question was whether the discount given by the appellant to the distributors constituted commission or brokerage under section 194H of the Income Tax Act, 1961. The appellant argued that the relationship between the assessee and the buyers was on a principal-to-principal basis and not that of principal and agent. Various clauses of the agreement were highlighted to support this claim, such as the buyer's obligations to ensure timely payments, bear all operating expenses, and not create third-party obligations without prior written consent from HTEL. The appellant cited several judgments to bolster their argument: - Daruvala Bros.(P)Ltd. v. CIT: It was held that the agreement was not an agency agreement but a sale agreement, supporting the appellant's claim that the transactions were on a principal-to-principal basis. - The Bhopal Sugar Industries Ltd. Vs. Sales Tax Officer Bhopal: Emphasized that the nature of the transaction should be determined by the terms of the agreement and the intention of the parties. - Moped India Limited Vs Assistant Collector of Central Excise: The court found that the relationship was on a principal-to-principal basis, and the discount allowed was trade discount, not commission. - Bharti Airtel Ltd. Vs. Deputy Commissioner of Income-Tax: The Karnataka High Court ruled that the relationship between the assessee and the distributor was principal-to-principal, and the discount did not constitute commission. However, the Revenue countered with judgments that took a contrary view: - C.I.T. Vs. Idea Cellular Ltd.: The Delhi High Court held that the discount given to distributors was commission, as the legal relationship was established between the assessee and the ultimate consumer/subscriber, facilitated by the distributors. - C.I.T Vs. Director, Prasar Bharti: The Kerala High Court found that the payment constituted commission within the meaning of section 194H. - Vodafone ESSAR Cellular Ltd. Vs. Assistant Commissioner of Income- Tax(TDS): The Kerala High Court ruled that the distributor acted on behalf of the assessee, and the discount was commission. - Bharati Cellular Limited Vs. Assistant Commissioner of Income-Tax and Another: The Calcutta High Court held that the franchisee acted as an agent for the assessee, and the discount was commission. The court concluded that the relationship between the appellant and the service provider was that of principal and agent, not principal-to-principal. The terms and conditions of the agreement indicated that the service provider acted on behalf of the assessee, making the discount a commission under section 194H. Issue 2: Responsibility for Paying under Section 194H The second question was whether the appellant was a person "responsible for paying" within the meaning of section 194H and could be proceeded against under section 201. The appellant contended that since no payment was made to or credited to the accounts of the distributors, they were not responsible for paying commission. The court, however, found that the appellant was indeed responsible for paying commission as per the terms of the agreement. The relationship between the appellant and the distributors was that of principal and agent, making the appellant liable under section 194H. The Tribunal's view was upheld, and the appellant was deemed responsible for deducting tax at source on the commission. Conclusion: The court answered both questions in favor of the Revenue: 1. The discount allowed by the appellant to the distributors amounted to payment of commission within the meaning of section 194H. 2. The appellant was a person responsible for paying commission and, therefore, the provisions of section 194H were attracted. The appeal was dismissed, and the Tribunal's directions remained operative.
|
