TMI Blog2017 (11) TMI 1112X X X X Extracts X X X X X X X X Extracts X X X X ..... UDGMENT 1. By way of this appeal, the appellant has assailed the judgment and order of the tribunal whereby tribunal has dismissed the appeal of the assessee. 2. This court while admitting the appeal on 5.9.2013 framed following substantial questions of law:- (i) Whether in the facts circumstances of the case even if it held to be a service, it is a service of the kind mentioned in clause (i) to (vii) of Section 65 (105) (zzb)? (ii) Whether in the facts circumstances of the case, the transaction of purchase sale of liquor falls within the ambit of service u/s 65(19) read with 65(105) (zzb) of the Act? 3. The facts of the case are that the appellant a Government of Rajasthan Undertaking, registered under the Companies Act, 1956 is entrusted by the State Government with the business of purchase of IMFL and Beer (liquor) from manufacturers, transport of liquor to various depots of the appellant and for further sale thereon to various licensee (i.e. with the wholesale trade in liquor), with a view to regulate supply of liquor through conferring the exclusive privilege of purchase and sale in the wholesale thereof upon the appellant. As a consequence of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eparation, display or exhibition of advertisement and includes an advertising consultant; (3a) aircraft has the meaning assigned to it in clause (1) of section 2 of the Aircraft Act, 1934 (22 of 1934); (3b) aircraft operator means any person which provides the service of transport of goods or passengers by aircraft;] (3c) airport has the meaning assigned to it in clause (b) of section 2 of the Airports Authority of India Act, 1994 (55 of 1994); (3d) airports authority means the Airports Authority of India constituted under section 3 of the Airports Authority of India Act, 1994 (55 of 1994) and also includes any person having the charge of management of an airport or a civil enclave;] (4) air travel agent means any person engaged in providing any service connected with the booking of passage for travel by air; (5) Appellate Tribunal means the Customs, Excise and Service Tax Appellate constituted under section 129 of the Customs Act, 1962 (52 of 1962); (6) architect means any person whose name is, for the time being, entered in the register of architects maintained under section 23 of the Architect Act,1972 (20 of 1972) and also ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation, Tax Case No.6/2009 decided on 2.5.2013 wherein it has been observed as under:- 9. It is not disputed that if the Corporation was engaged in sale and purchase of liquor for the State, then no service tax was payable. 10. The Tribunal has recorded a finding of fact that the Corporation was engaged in purchase and sale of liquor and could not be considered as clearing and forwarding agent for the State Government. It is finding of fact. No illegality in the finding has been pointed out. 7. Taking into consideration the issue was held in favour of the assessee. Even otherwise, the controversy also covered by decision of this court in M/s. Hindustan Coca Cola Beverages Pvt. Ltd. vs. Commissioner of Income Tax-III, Jaipur DBITA No.205/2005 alongwith other connected matters decided on 11.7.2017 wherein it has been held as under:- 44. Now, the first question which has come up for our consideration is, whether in the facts and circumstances of the case the learned Tribunal was right and justified in holding that assessee was liable to withhold tax at source under S. 194H of the Income Tax Act, 1961 amounting to ₹ 19,74,842/- (including interest) in respec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Distributor is on Principal to Principal basis and the responsibility is on the basis of agreement entered into between the parties. (ii) Regarding MRP, the findings which are arrived at is a price which has been fixed by the assessee company and other expenses, namely; commission given to the retailer and everything is to be managed by the Distributor. In that view of the matter, the restrictions which are put forward will not decide the relation-ship of Principal and Agent. (iii) The Distributor has all rights to reduce his margin. He can increase the margin of retailer and will reduce the margin from 10% to anything between 1% to 10%. There is no restriction by the assessee to give commission amount to the retailer. (iv) Regarding area of operation, it is the business policy of the assessee to give Distributor-ship for a particular area. Only on that basis, it will be erroneous to held that it is on Principal to Principal basis. For deciding the relation-ship on Principal to Principal basis, the criteria will not be of area of operation but agreement entered into between the parties. (v) Regarding the change in price it is always between the assessee or the company and ..... X X X X Extracts X X X X X X X X Extracts X X X X
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