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TMI Blog2015 (9) TMI 187X X X X Extracts X X X X X X X X Extracts X X X X ..... co Cola (2007 (8) TMI 12 - SUPREME COURT OF INDIA ) AR also submitted that the payees to whom the amounts have been paid have already included the payments received from Assessee in their income and have also paid the taxes on the same and therefore there is no violation of the provisions of s. 201(1) of the Act and in support of this contention the assessee placed copy of the confirmations of the parties but however we find that there is no finding of AO or CIT(A) on the same. We are therefore of the view that the issue needs to be reexamined and decided. Therefore remit the issue to the file of AO to decide the issue afresh in the light of the foregoing - Decided in favour of assessee for statistical purposes - I.T.A. Nos. 944 to 946/AHD/2012 - - - Dated:- 21-8-2015 - SHRI RAJPAL YADAV AND SHRI ANIL CHATURVEDI, JJ For The Appellant : Shri Sunil H. Talati, A.R. For The Respondent: Shri D.C. Mishra, Sr. D.R. PER ANIL CHATURVEDI, ACCOUNTANT MEMBER 1. These 3 appeals filed by the Assessee are against the order of CIT(A)-V, Baroda dated 14.02.2012 for A.Ys. 2008-09, 2009-10 2010-11. 2. Before us, at the outset the ld. A.R. submitted that though the appea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mmission paid on of attaining certain volume in sales. The second is reimbursement of rate difference by way of credit notes. This is required to be done because company, as per its policy, is dispatching goods to its distributors/consignment agents on certain fixed rates whereas in the bills issued by the distributors/consignment agents to actual consumers market rate is being charged. The company is later on reimbursing the difference because distributors/consignment agents are only agents of the company. As has been explained by the appellant company this arrangement is allowing the actual consumers to claim certain tax benefits which would not be allowable in case of direct billing by the company. Claim of the appellant that it is dealing with distributors/consignment agents is on principal to principal basis is not borne out from the agreement between the appellant and the consignment agent. The appellant retains all rights in respect of the goods lying with the consignment agents. Consignment agent is not allowed to pledge the stock and the company can transfer any stock lying with the consignment agent to other consignment agent if the same is not sold within 30 days. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... essee gives various types of commission, discount and incentive to the distributors on their sales performance since last more than 20 years. On the commission amount which is paid distributors which is based at fixed rate per kg on the sales, the Assessee is regularly deducting TDS. Assessee also pays overriding commission and on which also the TDS is deducted by the Assessee. On the discounts (rate difference) (back to back) which is given by the Assessee no TDS is deducted and the department has also not objected to it. Revenue s objection is only with respect to the discount/incentive (target) which has been paid by the Assessee. It is submitted that Assessee issues credit note for certain sales target to the distributor on the quantity which are booked as discount and is not in the nature of commission on sales but is in the nature of extra discount on price due to achieving bigger target. He pointed to the sample copies of the credit notes which were raised during the year in support of his contention that the amount was not in the nature of commission but was in the nature of discount. He further placed reliance on the decision of Ahmedabad Tribunal in the case of Gujarat Fl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ase is with respect to deduction of TDS on the payment of discount and rebate given by the Assessee to the consignment agent. Before us, it is Assessee s submission that it has paid various types of commissions and discounts to the distributors since last several years namely commission, overriding commission, discount (rate difference) discount (back to back), discount/incentives (target). It is further submitted that on the commission on overriding commission which has been paid by the Assessee, the TDS at the applicable rates were deducted and deposited with the Government authorities. With respect to the discount (rate difference) and discount (back to back) Assessee has not deducted TDS and the same is also not disputed by the Department. The only dispute is with respect to the discount/incentives (target). It is Revenue s contention that the discount/incentive given by the Assessee is in the nature of commission and therefore provisions of Section 194H are applicable and therefore Assessee is liable to deduct TDS. On the other hand, it is Assessee s contention that the amount which is paid to the distributors is in the nature of extra discount which is paid on the basis of th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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