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TMI Blog2021 (2) TMI 233X X X X Extracts X X X X X X X X Extracts X X X X ..... (105) ITD 129 and Hindustan Coca Cola Beverages (P) Ltd. V/s. ITO (ITAT, JP) while deleting addition made on the payment made by the assessee towards the commission paid to news paper vendors without deduction of TDS u/s. 40 (a) (ia) of I.T. Act, 1961? B. Whether the Hon'ble ITAT was right in not appreciating the CBDT circular no.715 dated 08/08/1995 and CBDT circular No.619 dated 04/12/1991 while deleting the addition made to Rs. 2,76,00,979/- towards payments of commission to Advertising Agents where TDS was not deducted under section 40(a)(ia) r.w. s.194C, wherein it was clarified that when commission or brokerage is retained by the agents and not remitted to the principal, it amounts to constructive payments of the same to him by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ome Tax Appellate Tribunal (ITAT) which has, by its order dated 7/10/2015, dismissed the Revenue's appeal and upheld the order made by the Commissioner (Appeals). Hence, the present appeal on the aforesaid substantial questions of law. 6. Ms. Linhares, the learned Counsel for the Revenue submits that the view taken by the Commissioner (Appeals) and the ITAT, is contrary to the law laid down by the Kolkota Bench of the ITAT in ACIT vs. Bharti Cellular Ltd. 105 ITD 129 (Kolkota) and Jaipur Bench of the ITAT in Hindustan Coca Cola Beverages P. Ltd. vs. Commissioner of Income- Tax [2018] 402 ITR 539 (Raj). In these decisions, it has been held that any payment made by the Assessee towards commission to the newspaper vendors or advertising a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... llular Ltd. (supra) is at variance with the view taken by the Karnataka High Court in the case of Bharti Airtel Ltd. vs. Deputy CIT [2015] 372 ITR 33 (Karn). He submits that the view taken by the Karnataka High Court has been accepted and followed by this Court in CIT (TDS), Pune vs. M/s. Vodafone Cellular Ltd. ITA Nos.1152, 1274 & 1995 of 2017 with ITA Nos. 571 & 1266 of 2018 decided on 27/1/2020. and The CIT (TDS) Pune vs. M/s. Idea Cellular Ltd .ITA No.1129/2017 decided on 13/1/2020. He submits that in any case, the view taken by the Commissioner (Appeals) and the ITAT, is quite consistent with the law laid down by the Gujarat High Court in the case of Ahmedabad Stamp Vendors Association vs. Union of India [2002] 257 ITR 202 (Guj HC). w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... emphasis has to be on the real nature of transactions. He submits that the Commissioner (Appeals) and the ITAT have recorded concurrent findings of fact that the Assessee did not pay any commission to the newspaper vendors or the advertising agencies, but what was extended was only the trade discount, quite consistent with the industry practice in such matters. He submits that there is no perversity in the findings of fact recorded concurrently by the two authorities and no substantial question of law has been framed on the aspect of any alleged perversity. He submits that this is yet another reason as to why the present appeal may be dismissed. 11. The rival contentions now fall for our determination. 12. Ms. Linhares, in support of her ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al-to-principal basis. There was no commission paid by the Assessee to the newspaper vendors, but the Assessee merely extended a trade discount to the newspaper vendors. The newspaper vendors were, thus, not agents of the Assessee in the facts and circumstances of the present case. The circumstance that the Assessee would repurchase the unsold papers, was not sufficient to conclude that there was no concluded sale in the favour of the newspaper vendors, in the first instance. The findings of fact on this aspect, as concurrently recorded, do not suffer from any perversity, to raise any substantial question of law and warrant interference with the same. 15. This is yet another reason as to why the first substantial question of law cannot, in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he matter. 18. Besides, both the Commissioner (Appeals), as well as the ITAT, have concurrently recorded findings of fact that the dealings between the Assessee and the advertising agencies were on a principalto- principal basis and, therefore, there was no element of commission involved. Since there was no element of commission involved or paid by the Assessee to such agencies there was no question of any deduction of tax at source on such amounts. No perversity was pointed out in such concurrent findings of fact, to warrant any interference with the same in this appeal. Therefore, even the second substantial question of law is required to be answered against the Revenue and in favour of the Assessee in this matter. 19. Resultantly, both ..... X X X X Extracts X X X X X X X X Extracts X X X X
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