TMI Blog2016 (1) TMI 678X X X X Extracts X X X X X X X X Extracts X X X X ..... ) cannot arise. The scope and effect of section 194H (w.e.f. 01/06/2001), section 194H as also amendment of section 197 made by the Finance Act 2001 have been elaborated in departmental circular no.14 of 2001. Further, the scope and effect of the amendment made in opening portion of section 194H by the Finance Act, 2002 have been further elaborated in departmental circular no.8 of 2002 dated 27/08/2002. In view of the above discussions, we quash the impugned demands under section 201(1) and 201(1A) r.w.s. 194H. - Decided in favour of assessee. - ITA NOs.3156, 3157/Mum/2014 - - - Dated:- 6-11-2015 - Shri Joginder Singh, Judicial Member, and Shri Rajesh Kumar, Accountant Member For The Revenue : Shri Vijay Kumar Soni-DR For The Assessee : Shri Alok Bairagra ORDER Per Joginder Singh (Judicial Member) Both these appeals are by the Revenue, aggrieved by the impugned orders dated 14/02/2014 of the ld. First Appellate Authority, Mumbai. The only ground raised in this appeal pertains to allowing bank guarantee commission and thus non-deduction of tax at source on such charges paid to Bank u/s 194H of the Act and further deleting the addition u/s 201 (1)/2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r brokerage includes any payment received or receivable, directly or indirectly, by a person acting on behalf of another person for services rendered (not being professional services) or for any services in the course of buying or selling of goods or in relation to any transaction relating to any asset, valuable article or thing, not being securities; (ii) the expression professional services means services rendered by a person in the course of carrying on a legal, medical, engineering or architectural profession or the profession of accountancy or technical consultancy or interior decoration or such 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. 2.2. A plain re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r shows that they are to be understood in the same sense. 2.5. Let us now deal with legal connotations of these two expressions, namely commission and brokerage . The Law Lexicon (Edited by Justice Y.V. Chandrachud; 1997 Edn.) observes that in commercial law, commission is a compensation to a factor or other agent for services to be rendered in making a sale or otherwise; a sum allowed as compensation to a servant, factor or agent who manages the affairs of others, in recompense for his services. According to the given definition, It is an allowance, recompense or reward made to agents, factors and brokers and others for effecting sales and carrying out business transactions. It is generally calculated as a certain percentage on the amount of the transactions on the profits to the principal. The expression brokerage is defined as fees or commission given to or charged by a broker . In turn a broker is defined as a middleman or agent who, for a commission on the value of transaction, negotiates for others the purchase or sale of books, bonds or commodities, or property of any kind, or who attends to the doing of something for another. 2.6. In the light of the above ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... given an inclusive definition, but Their Lordships were of the view that there could be no other meaning of processing besides what is stated as included in that expression and that Though include is generally used in interpretation clause as a word of enlargement, in some cases context might suggest a different intention . Their Lordships then concluded that though the expression used in the definition clause is includes , it seems to us that the word includes has been used here in the same sense of means ; this is the only construction that the word can bear in this context . In other words, an inclusive definition, as Their Lordships noted, does not necessarily always extend the meaning of an expression. When inclusive definition contains ordinary normal connotations of an expression, in our considered view, even an inclusive definition has to be treated as exhaustive. That is the situation in the case before us as well. Even as definition of expression commission or brokerage , in Explanation to Section 194 H, is stated to be exclusive, it does not really mean anything other than what has been specifically stated in the said definition. Therefore, as held by the co ..... X X X X Extracts X X X X X X X X Extracts X X X X
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