Hindustan Coca Cola Beverages Pvt. Ltd vs. CIT (Rajasthan High Court)- 4 Dec 2017
Some of important discussion pointers of the case (for easy reference):
1- The basic question which was put forth for our consideration is whether the arrangement which has been worked out between the assessee company and the distributor (Agency) claimed by the Income Tax Department are covered under the provisions of Sections 194 H and/or 194 J of the Income Tax Act.?
2- While considering provisions of Section 194H and 201(1) read with 1A, the Allahabad High Court came to the following conclusion:
“84. …. Thus, from a combined reading of Section 190, 191, 192, 198, 200, 201, 203 and 204 of the Act, it is clear that as soon as tax is deducted at source by the person responsible to make the payment, the liability of the Assessee to pay the tax gets discharged. If the tax is not deducted, it remains payable by the Assessee direct as provided under Section 191 of the Act. Further, the liability to pay interest under Section 201(1A) is on the person who fails to deduct the tax at source is absolute and is upon the person responsible for deducting tax at source till the date it was actually paid.”
3- The matter of the fact was the commission was never paid to such distributor and it was lying unpaid in the books of account,
4- ...........“89. In view of the foregoing discussions, we are of the considered opinion that in a case where tax has not been deducted at source, the short deducted tax cannot be realised from the deductor and the liability to pay such tax shall continue to be with the assessee direct, whose income is to be charged and a person who fails to deduct the tax at source, at best is liable for interest and penalty only. The above issues thus, are decided in favour of the petitioner.”
5- In our considered opinion, Section 194H pre-supposes the payment to be made to the third party namely, Distributor or the Agency and if on a close scrutiny of Section 182, Distributor is not an agent, therefore, in our considered opinion, the provisions of Section 194H have wrongly been invoked, and therefore, the first issue is answered in favour of assessee and against the Department,
For reading full text of the case please refer - http://itatonline.org/archives/hindustan-coca-cola-beverages-pvt-ltd-vs-cit-rajasthan-high-court-s-194h-2011-an-obligation-to-deduct-tds-u-s-194h-arises-only-if-the-relationship-is-that-of-principal-and-agent-and-if-a-pa/hind-coca-cola-194h-tds/
Some of important discussion pointers of the case (for easy reference):
1- The basic question which was put forth for our consideration is whether the arrangement which has been worked out between the assessee company and the distributor (Agency) claimed by the Income Tax Department are covered under the provisions of Sections 194 H and/or 194 J of the Income Tax Act.?
2- While considering provisions of Section 194H and 201(1) read with 1A, the Allahabad High Court came to the following conclusion:
“84. …. Thus, from a combined reading of Section 190, 191, 192, 198, 200, 201, 203 and 204 of the Act, it is clear that as soon as tax is deducted at source by the person responsible to make the payment, the liability of the Assessee to pay the tax gets discharged. If the tax is not deducted, it remains payable by the Assessee direct as provided under Section 191 of the Act. Further, the liability to pay interest under Section 201(1A) is on the person who fails to deduct the tax at source is absolute and is upon the person responsible for deducting tax at source till the date it was actually paid.”
3- The matter of the fact was the commission was never paid to such distributor and it was lying unpaid in the books of account,
4- ...........“89. In view of the foregoing discussions, we are of the considered opinion that in a case where tax has not been deducted at source, the short deducted tax cannot be realised from the deductor and the liability to pay such tax shall continue to be with the assessee direct, whose income is to be charged and a person who fails to deduct the tax at source, at best is liable for interest and penalty only. The above issues thus, are decided in favour of the petitioner.”
5- In our considered opinion, Section 194H pre-supposes the payment to be made to the third party namely, Distributor or the Agency and if on a close scrutiny of Section 182, Distributor is not an agent, therefore, in our considered opinion, the provisions of Section 194H have wrongly been invoked, and therefore, the first issue is answered in favour of assessee and against the Department,
For reading full text of the case please refer - http://itatonline.org/archives/hindustan-coca-cola-beverages-pvt-ltd-vs-cit-rajasthan-high-court-s-194h-2011-an-obligation-to-deduct-tds-u-s-194h-arises-only-if-the-relationship-is-that-of-principal-and-agent-and-if-a-pa/hind-coca-cola-194h-tds/
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