TMI Blog2000 (5) TMI 166X X X X Extracts X X X X X X X X Extracts X X X X ..... ore total tax liability under section 194H was asked to be paid. He further submitted that section 204 clearly indicates the meaning of 'Person responsible for paying' and there is no ambiguity. In view of the same section 194H is clearly applicable in this case. Learned AR of the assessee, on the other hand, entirely relied on the order of the CIT(A) and his candid argument were hovering around the said order. 3. The assessee publishes, inter alia, a newspaper in the name and style of 'The SAMAJ' which was bequeathed by its founder Pt. Gopanbandhu Dash. The assessee has sold newspapers at a discounted price to its sales agents and also received payment from advertising agencies after deduction of their charges. The Assessing Officer has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... les his accounts of newspapers lifted during a month between 10th and 20th of the next month, he has to make payment for the entire quantity of newspaper lifted irrespective of the papers actually sold. This is in our view abundantly disproves the Assessing Officer's contention that the sale proceeds are collected by the Agents through the hawkers from the customers and, then passed on to the publisher. The arrangement, so made between the assessee and the agents would in our view be governed by the provisions: of Sales of Goods Act and not by the laws of Agency. 5. An, agent has been defined in section 182 of the Indian Contract Act as a person employed to do any act for another or to represent another in dealings with third persons. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h Court had held that the transaction between the Government and Ghasiram was one of sale and purchase and not of agency. The property in the goods, it was held, passed on to the retailer (Ghasi Ram) and he did not hold the property as an agent in trust for the Government. 7. Hon'ble Kerala High Court has held in the case of Dy. Commissioner of Agricultural Income-tax and Sales-tax v. Alwaye Agencies 1974 Tax L.R. 2281 that the assessee was appointed as a distributor for sale of Sodium Hydrosulphite within the area of Kerala State and the appointment was subject to several conditions and restrictions imposed by the manufacturer. So that was a contract of one of sale and not of Agency. 8. In the case of Sri Tirumala Venkateswara Timber ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aid decisions of Hon'ble Calcutta-and Kerala High Courts and Hon'ble Supreme Court are squarely applicable to the assessee and the arrangement between the assessee and the agents cannot but be treated as a contract of sale. 10. It is observed that the 'commission' is a recompense or allowance, for service or Tabour rendered by the payee in discharging certain functions such as, for instance of an agent, factor, broker or any other person who manages the affairs or undertakes to do some work or renders some service to another. Where there is an agreement for s I there being no element of agency, the payment cannot be deemed to be commission as envisaged in section 194H of the Income-tax Act. It is also further observed that mere use of the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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