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TMI Blog2021 (8) TMI 1005X X X X Extracts X X X X X X X X Extracts X X X X ..... or selling of goods or in relation to any transaction relating to any assets, valuable articles or thing. Therefore, to fall within the explanation to Section 194H, the commission payment must have been received by a person who is acting on behalf of the assessee. As rightly observed by the Tribunal, the doctors were not bound to prescribe the medicines as suggested by the assessee. As such there was no legal compulsion on the part of the doctors to prescribe a particular medicine suggested by the assessee, and therefore, the doctors could not be said to have acted as the agent of the assessee. In absence of the existence of the element of agency between the assessee and the doctors, the provisions contained in Section 194H of the Act co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 270/Ahd/2017, 1271/Ahd/2017 were filed by the respondent Assessee against the said three orders, before the Tribunal. 3. The brief facts giving rise to the present appeals are that the respondent Assessee is a limited Company engaged in the business of manufacturing and trading of pharmaceuticals. A survey under Section 133A of the Act was carried out at the premises of the assessee on 10.10.2013. As per the case of the appellant Department, during the course of the said survey proceedings various E-mails were found, suggesting that the services provided to the doctors such as taxi services, booking of air-tickets, cost of souvenir and cost of registration for the conference for doctors, etc., and certain facilities provided to the docto ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ads. The CIT (Appeals) held that the expenses incurred on other stakeholders i.e. stockiests, dealers, field staff etc., did not fall within the definition of the term commission . Being aggrieved by the said orders passed by the CIT (Appeals), the appellant - Department and the respondent assessee preferred the appeals before the Tribunal as stated herein above. The Tribunal vide the impugned order dated 26.11.2020 partly allowed the appeals of the respondent - assessee and dismissed the appeals filed by the appellant Department. Hence, the present appeals have been filed by the appellant under Section 260A of the said Act. 5. The appellant in all the appeals has proposed the following substantial questions of law in the memorandum of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... committed to increase the business support of the assessee - company by rendering their services in the form of prescribing the medicines of the assessee company over a period of time and there was a contract between the assessee company and the doctors. According to Mr.Bhatt the Tribunal had also committed an error in holding that there was no element of agency, ignoring the documentary evidence adduced by the Department establishing the unwritten agreement of agency between the assessee and the doctors. He further submitted that there was no reason for the Tribunal to disallow the findings of facts recorded by the assessing officer and the CIT (Appeals), who had treated the expenditure incurred on the doctors as commission , and had acco ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... other profession as is notified by the Board for the purposes of section 44AA; (iii) the expression securities shall have the meaning assigned to it in clause (h) of section 2 of the Securities Contracts (Regulation) Act, 1956 (42 of 1956) ; (iv) where any income is credited to any account, whether called Suspense account or by any other name, in the books of account of the person liable to pay such income, such crediting shall be deemed to be credit of such income to the account of the payee and the provisions of this section shall apply accordingly. 9.From the bare reading of the said section, it clearly transpires that the assessee, who is not an individual or HUF, and who is responsible for paying to a resident, any ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , etc., for attending the regional conferences or scientific conferences were required to be treated as the commission received or receivable as contemplated under Section 194H of the said Act. It is difficult to accept the said submission made by the learned Sr. Counsel Mr.Bhatt. As rightly held by the Tribunal, the Explanation to Section 194H of the said Act cannot be interpreted so widely as to include any payment receivable, directly or indirectly for the services in the course of buying or selling of goods. To fall within the Explanation, the payment received or receivable directly or indirectly has to be by a person acting on behalf of the assessee for the services rendered, not being professional services or for the services in the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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