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Facts
The assessee company made payments under the head 'Franchisee Expenses'. The AO held that these payments were for using trade marks and for operating support, thus falling under Section 194J of the Income Tax Act, and consequently, the assessee was liable for TDS. The CIT(A) deleted the additions made by the AO.
Held
The Tribunal held that the payments made by the assessee were not in the nature of royalty or fees for technical services as contemplated under Section 194J of the Income Tax Act. Therefore, the assessee was not in default for not deducting TDS on these payments.
Key Issues
Whether the 'Franchise Expenses' paid by the assessee company are subject to TDS under Section 194J of the Income Tax Act, 1961, as royalty or fees for technical services.
Sections Cited
201, 201(1A), 194J, 133A(2A), 143(3), 44AA, 28, 192, 147
AI-generated summary — verify with the full judgment below
Income Tax Appellate Tribunal, JAIPUR BENCHES,”B” JAIPUR
Before: DR. S. SEETHALAKSHMI, JM & SHRI RATHOD KAMLESH JAYANTBHAI, AM vk;dj vihy la-@ITA. No. 79 to 81/JPR/2025
ORDER PER: RATHOD KAMLESH JAYANTBHAI, AM Because the revenue was dissatisfied with the finding given in the order of the Learned Commissioner of Income Tax (Appeals)-4, Jaipur [ for short CIT(A) ] dated 11.12.2024 & 12.12.2024 for the assessment years 2013-14 to 2015-16 these appeals were filed. That order of the ld. CIT(A) arises because the assessee has challenged orders dated 19.03.2020, 19.03.2021 & 06.01.2022 passed under section 201(1)/201(1A) of the Income the Revenue has raised the following grounds of appeal:-
1. Whether on the facts and in circumstances of the case in law, the ld. CIT(A) has erred in deleting the addition of Rs. 59,11,080/- made u/s 201(1) along with interest u/s 201(1A) of Rs. 42,55,977/- in respect of payments of Rs. 5,91,10,794/- made to three concerns namely M/s Saraya Distilleries Ltd., Pay Fair Enterprise and United Spirits Ltd. under the head “Franchise Expenses” holding that the impugned payments made by the assessee company does not come in the ambit of section 194J of the Income Tax Act, 1961.” the Revenue has raised the following grounds of appeal:-
1. Whether on the facts and in circumstances of the case in law, the ld. CIT(A) has erred in deleting the addition of Rs. 77,55,945/- made u/s 201(1) along with interest u/s 201(1A) of Rs. 69,62,350/- in respect of payments of Rs. 7,73,59,458/- made to three concerns namely M/s Saraya Distilleries Ltd., Pay Fair Enterprise and United Spirits Ltd. under the head “Franchise Expenses” holding that the impugned payments made by the assessee company does not come in the ambit of section 194J of the Income Tax Act, 1961.”
Revenue has raised the following grounds of appeal:-
1. Whether on the facts and in circumstances of the case in law, the ld. CIT(A) has erred in deleting the addition of Rs. 1,15,48,373/- made u/s 201(1) along with interest u/s 201(1A) of Rs. 1,01,62,568/- in respect of payments of Rs. 11,54,83,725/- made to three concerns namely M/s to 81/JPR/2025 Alwar Malt and Agro Foods Manufactures Co. Ltd., Alwar. Saraya Distilleries Ltd., Pay Fair Enterprise and United Spirits Ltd. under the head “Franchise Expenses” holding that the impugned payments made by the assessee company does not come in the ambit of section 194J of the Income Tax Act, 1961.”
2.4 As is evident from the grounds of appeal that the issue raised in all these bunch of appeal are identical and of the same assessee, we have heard these cases together with the consent of the parties and have decided to dispose these appeals by common order.
With the consent of the parties the facts of the case is considered as lead case. The brief facts of the case in as culled out from the records are that a TDS survey u/s 133A(2A) of Income-tax Act 1961 was conducted on 26.02.2016 at the business premises of assessee, i.e. M/s Alwar Malt and Agro Foods Manufacturing Co. Ltd (AMAF), Alwar TAN-JPRA02369D. While survey, it was found that the assessee company has two directors viz. (1) Sh. Vishal Yadav (2) Smt. Kavita Yadav. The assessee company is engaged in business of manufacturing of IMFL (Indian Made Foreign Liquor) using brands of M/s United Spirit Limited (USL), Saraya Distilleries Ltd. and May Fair Enterprises.
3.1. The assessee company in financial year 2012-13 and in earlier years also has debited the accounts of M/s United Spirit Limited (USL), Saraya Distilleries Ltd., May Fair Enterprises and M/s John Distilleries Ltd., respectively in its books of accounts on account of franchisee expenses/tie-up manufacturing account/margin money transferred for franchise/Tie-up agreement. 3.2 In the financial year under consideration i.e. F.Y. 2012-13, the assessee deductor M/s Alwar Malt and Agro Foods Manufacturers Company Ltd. has made payments under the head 'Franchisee Expenses' amounting to Rs. 5,91,10,794/-. The assessee deductor vide letter No. 1323 dated 4.12.2019 was asked to produce the details of TDS/TCS deposited/collected on such payment and give reasons for non deduction/collection of TDS/TCS on the same. The assessee deductor has submitted its reply on 26.12.2019. 3.3 Ld. AO noted that the assessee deductor has made payment of Rs. 32,65,406/- to M/s Saraya Distilleries Ltd., Rs. 51,81,557/- to May Fair Enterprises & Rs. 5,06,63,831/- to United Spirits Ltd., totaling to Rs. 5,91,10,794/- during the F.Y. 2012-13 to 81/JPR/2025 Alwar Malt and Agro Foods Manufactures Co. Ltd., Alwar. on which TDS was to be deducted @ 10% as per the provision of section 194J of the IT Act, 1961 but no TDS on the above payments were made, therefore the TDS liability comes to Rs.59,11,080/- on such account in the F.Y. 2012-13. It is seen that the assessee deductor has executed an agreement with the above-mentioned parties for manufacturing and bottling of IMFL, the agreement made in this regard. Considering the terms of the agreement, ld. AO noted that the payments were made to use the trade mark in respect of IMFL brand of M/s Saraya Distilleries Ltd, May Fair Enterprises and United Spirits Ltd., and thereby also get operating support from the parties. Based on that ld. AO noted the assessee made payments to these parties on account of Business Profit transferred are covered as per the provision of section 194J of the Act. Therefore, that payments made for using of Trade Mark are of the nature of Royalty payments and the payments made for getting operating support are of the nature of "Fees for professional services/fees for technical services". Having noted that ld. AO based on the separate Trading and Profit & Loss account(s) of M/s Saraya Distilleries Ltd, May Fair Enterprises and United Spirits Ltd., found that the assessee to 81/JPR/2025 Alwar Malt and Agro Foods Manufactures Co. Ltd., Alwar. transferred the profit of Rs.5,91,10,794/-10 these concerns. But in the Audited financial statement, the assessee has shown as "FRANCHISE Expenses of said profit. Therefore, ld. AO noted the assessee deductor company has made the payments to M/s Saraya Distilleries Ltd. amounting to Rs. 48,18,150/-, M/s May Fair Enterprises amounting to Rs. 31,54,532/- and M/s United Spritis Ltd., amounting to Rs. 1,51,60,427/- during the period under consideration, which are covered under the provisions of section 194J of the IT Act, 1961 and had failed to deduct the TDS as required under the Act. 3.4 As the assessee deductor has made payment of Rs. M/s Saraya Distilleries Ltd. amounting to Rs. 32,65,406/ M/s May Fair Enterprises amounting to Rs 51,81,557/- and M/s United Spritis Ltd., amounting to Rs. 5,06,63.831/-during the F.Y. 2012-13 on which the TDS was to be deducted 10% as per the provision of section 194J of the IT Act, 1961 but no TDS were made and thereby he computed TDS liability for Rs. 59,11,080/- on such account in the year under consideration and thereby the assessee was considered as the assessee in default as per the provision of section 201(1) of the Act. Having done so ld. AO noted as per to 81/JPR/2025 Alwar Malt and Agro Foods Manufactures Co. Ltd., Alwar. provision of section 201(1A) of the Act if any such Person, Principal Officer or Company as is referred to in that section does not deduct the whole or any part of the tax or fails to pay the tax as required under this Act, it should be liable to pay simple interest of the rate of 1% for every month or part of the month on the amount of such tax from the date on which the such tax was deductible and thereby such interest was worked out at Rs. 42,55,977/-.
Aggrieved by the above order of the ld. AO the assessee preferred an appeal before the ld. CIT(A). After perusing the submissions of the assessee, the ld. CIT(A) has allowed the appeal of the assessee by observing as under:-
“4.2 I have considered the facts of the case and written submissions of the appellant as against the observations/findings of the AO in the order for the year under consideration. The contentions/submissions of the appellant are being discussed and decided as under:- The facts of the issue in the present appeal are similar or pari- materia to the facts of the issue in the appeals of assessment year 2009-10 to 2012-13 and lastly of assessment year 2014-15 which stand adjudicated already. The findings of the appeal order for the referred earlier assessment years are applicable mutatis-mutandis to the present appeal. Respectfully following the earlier appeal orders, it is hereby held that the impugned payment made by the appellant company does not come in the ambit of section 194J of the Act. Accordingly, the tax demand of Rs. 59,11,080 u/s 201 of the Act and of Rs. 42,55,977 u/s 201(1A) of the Act is hereby directed to be deleted. Accordingly, these grounds of appeal are hereby allowed. to 81/JPR/2025 Alwar Malt and Agro Foods Manufactures Co. Ltd., Alwar.
5. In the result, the appeal of the appellant is allowed.”
5. Feeling dissatisfied with the above order of the ld. CIT(A) the revenue preferred the appeal against that finding so recorded by the ld. CIT(A). Revenue vide their solitary ground challenged the finding of the ld. CIT(A) while deleting the liability of TDS of Rs. 59,11,080/- made u/s 201(1) along with interest u/s 201(1A) of Rs. 42,55,977/- in respect of payments of Rs. 5,91,10,794/- made to three concerns namely M/s Saraya Distilleries Ltd., Pay Fair Enterprise and United Spirits Ltd., under the head “Franchise Expenses” holding that the impugned payments made by the assessee company does not come in the ambit of section 194J of the Income Tax Act, 1961.
Apropos to that ground so raised by the revenue the ld. DR vehemently argued that the assessee has paid the franchisee fees and by as per the detailed discussion so recorded by the ld. AO the assessee should be considered as the assessee in default in not considering them liable to deduct the TDS as per the extensive provision of section 194J of the Act. Ld. DR vehemently argued that the ld. CIT(A) has granted the relief based on the decision given in the year 2009-10 and revenue has not to 81/JPR/2025 Alwar Malt and Agro Foods Manufactures Co. Ltd., Alwar. challenged that order as the those year the tax effect was low and based on the extensive guideline of the CBDT the issue was not agitated. The ld. DR heavily relied upon the agreement and there upon finding recorded by the ld. AO clarifying that the agreement was not profit sharing but was for the franchisee agreement.
Per contra, ld. AR of the assessee supported the order of the ld. CIT(A). The ld. AR of the assessee in addition that also submitted a detailed paper book in support of the contention. The index of the document submitted reads as under:-
S. No. Particulars Page No.
Copy of agreement with Saraya distillery, A Unit of 01-12 Saraya Industries Ltd.
Copy of agreement with Mayfair Enterprises 13-15 3. Copy of agreement with United Spirits Limited 16-28 4. Copy of separate trading, Profit & Loss account for FY 29 2012-13 for Saraya Industries Ltd.
Copy of separate trading, profit & loss account for FY. 30 2012-13 for Mayfair Enterprises 6. Copy of separate t rading, profit & loss account for FY 31 2012-13 for United Spirits Limited.
7. Copy of audit report of Alwar Malt & Agro Foods 32-35 Manufacturers Company Ltd. for FY 2012-13. to 81/JPR/2025 Alwar Malt and Agro Foods Manufactures Co. Ltd., Alwar. The ld. AR of the assessee during the course of hearing vehemently argued that the assessment for A. Y. 2013-14 was completed u/s. 143(3) of the Act after full examination of the case. He also vide his submission filed stated that the assessing officer who assessed the income for the A. Y. 2013-14 has raised a specific query on the issue of non deduction of TDS on the franchisee expenses and having gone through those contention has no disallowed that claim debited in the profit and loss account. In support he filed the assessment order dated 30.03.2016 wherein the vide page 4 the same is discussed. Similarly assessment for A. Y. 2014-15 was also completed u/s. 143(3) of the Act on 13.12.2016 accepting the claim of the assessee. Therefore, he submitted that even otherwise the finding of the ld. CIT(A) gets more strengthen and thereby, there is no merit in the appeal of the revenue.
We have considered the rival contentions, perused the material available on record. The bench noted that the solitary issue raised by the revenue is to challenge the finding of the ld. CIT(A) while deleting the liability of TDS of Rs. 59,11,080/- made u/s 201(1) along with interest u/s 201(1A) of Rs. 42,55,977/- in to 81/JPR/2025 Alwar Malt and Agro Foods Manufactures Co. Ltd., Alwar. respect of payments of Rs. 5,91,10,794/- made to three concerns namely M/s Saraya Distilleries Ltd., Pay Fair Enterprise and United Spirits Ltd., under the head “Franchise Expenses” holding that the impugned payments made by the assessee company does not come in the ambit of section 194J of the Act and thereby the present appeal. The brief fact of the case is that for the year under consideration i.e. financial year 2012-13, the assessee deductor M/s Alwar Malt and Agro Foods Manufacturers Company Ltd. has made payments under the head 'Franchisee Expenses' amounting to Rs. 5,91,10,794/-. The assessee deductor vide letter No. 1323 dated 4.12.2019 was asked to produce the details of TDS/TCS deposited/collected on such payment and give reasons for non- deduction/collection of TDS/TCS on the same. The assessee deductor submitted its reply on 26.12.2019. From that reply which was submitted by the assessee, ld. AO, noted that the assessee deductor has made payment of Rs. 32,65,406/- to M/s Saraya Distilleries Ltd., Rs. 51,81,557/- to May Fair Enterprises & Rs. 5,06,63,831/- to United Spirits Ltd., totaling to Rs. 5,91,10,794/- on which TDS was to be deducted @ 10% as per the provision of to 81/JPR/2025 Alwar Malt and Agro Foods Manufactures Co. Ltd., Alwar. section 194J of the Act but no TDS on the above payments were made. Therefore, the TDS liability was determined at Rs.59,11,080/-. That order was challenged before the ld. CIT(A) and ld. CIT(A) considering his decision for the assessment year 2009-10 to 2012-13 taken a view that the payment made does not fall in the ambit of the provision of section 194J of the Act and thereby the assessee was not considered assessee in default and directed to delete the demand raised even for the year under consideration. The revenue challenged that finding of the ld. CIT(A) before this tribunal wherein the contention of the revenue is that the assessee has paid the franchise fees and thus as per the detailed discussion so recorded by the ld. AO the assessee should be considered as the assessee in default and thereby the demand raised is required to be sustained. As the dispute is related to the coverage of payment as per provision of section 194J of the Act it would be appropriate to go through that provision which reads as under : Fees for professional or technical services. 194J. (1) Any person, not being an individual or a Hindu undivided family, who is responsible for paying to a resident any sum by way of— (a) fees for professional services, or (b) fees for technical services, or (ba) any remuneration or fees or commission by whatever name called, other than those on which tax is deductible under section 192, to a director of a company, or (c) royalty, or (d) any sum referred to in clause (va) of section 28, shall, at the time of credit of such sum to the account of the payee or at the time of payment thereof in cash or by issue of a cheque or draft or by any other mode, whichever is earlier, deduct an amount equal to two per cent of such sum in case of fees for technical services (not being a professional services), or royalty where such royalty is in the nature of consideration for sale, distribution or exhibition of cinematographic films and ten per cent of such sum in other cases, as income-tax on income comprised therein : Provided that no deduction shall be made under this section— (A) from any sums as aforesaid credited or paid before the 1st day of July, 1995; or (B) where the amount of such sum or, as the case may be, the aggregate of the amounts of such sums credited or paid or likely to be credited or paid during the financial year by the aforesaid person to the account of, or to, the payee, does not exceed— 91[fifty] thousand rupees, in the case of fees for professional (i) services referred to in clause (a), or 91[fifty] thousand rupees, in the case of fees for technical (ii) services referred to in clause (b), or 91[fifty] thousand rupees, in the case of royalty referred to in (iii) clause (c), or 91[fifty] thousand rupees, in the case of sum referred to in (iv) clause (d) : Provided further that an individual or a Hindu undivided family, whose total sales, gross receipts or turnover from the business or profession carried on by him exceed one crore rupees in case of business or fifty lakh rupees in case of profession during the financial year immediately preceding the financial year in which such sum by way of fees for professional services or technical services is credited or paid, shall be liable to deduct income-tax under this section : Provided alsothat no individual or a Hindu undivided family referred to in the second proviso shall be liable to deduct income-tax on the sum by way of fees for professional services in case such sum is credited or paid exclusively for personal purposes of such individual or any member of Hindu undivided family: Provided also that the provisions of this section shall have effect, as if for the words "ten per cent", the words "two per cent" had been to 81/JPR/2025 Alwar Malt and Agro Foods Manufactures Co. Ltd., Alwar. substituted in the case of a payee, engaged only in the business of operation of call centre. (2) [***] (3) [***] Explanation.—For the purposes of this section,— (a) "professional services" means services rendered by a person in the course of carrying on legal, medical, engineering or architectural profession or the profession of accountancy or technical consultancy or interior decoration or advertising or such other profession as is notified by the Board for the purposes of section 44AA or of this section; (b) "fees for technical services" shall have the same meaning as in Explanation 2 to clause (vii) of sub-section (1) of section 9; (ba) "royalty" shall have the same meaning as in Explanation 2 to clause (vi) of sub-section (1) of section 9; (c) where any sum referred to in sub-section (1) 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 sum, such crediting shall be deemed to be credit of such sum to the account of the payee and the provisions of this section shall apply accordingly.
Further a reference is made for Explanation 2 to clause (vii) of sub-section (1) of section 9 which reads as follows; (vii) income by way of fees for technical services payable by— (a) the Government ; or (b) a person who is a resident, except where the fees are payable in respect of services utilised in a business or profession carried on by such person outside India or for the purposes of making or earning any income from any source outside India ; or (c) a person who is a non-resident, where the fees are payable in respect of services utilised in a business or profession carried on by such person in India or for the purposes of making or earning any income from any source in India : Provided that nothing contained in this clause shall apply in to 81/JPR/2025 Alwar Malt and Agro Foods Manufactures Co. Ltd., Alwar. relation to any income by way of fees for technical services payable in pursuance of an agreement made before the 1st day of April, 1976, and approved by the Central Government. Explanation 1.—For the purposes of the foregoing proviso, an agreement made on or after the 1st day of April, 1976, shall be deemed to have been made before that date if the agreement is made in accordance with proposals approved by the Central Government before that date. Explanation 2.—For the purposes of this clause, "fees for technical services" means any consideration (including any lump sum consideration) for the rendering of any managerial, technical or consultancy services (including the provision of services of technical or other personnel) but does not include consideration for any construction, assembly, mining or like project undertaken by the recipient or consideration which would be income of the recipient chargeable under the head "Salaries"; On conjoint reading of the provision of the law and considering the material placed on record the assessee prepare separate profit and loss account and as per the agreement profit is transferred though debited under the head fees for Franchisee fees is not the fees for technical services for the rendering of any managerial, technical or consultancy services but are of the business transaction as per the extensive agreement. Not only that the bench has noted that the similar query was raised while conducting the extensive scrutiny of the case of the to 81/JPR/2025 Alwar Malt and Agro Foods Manufactures Co. Ltd., Alwar. assessee assessing officer who assessed the income for the A. Y. 2013-14 has raised a specific query on the issue of non-deduction of TDS on the franchisee expenses and having gone through those contention has no disallowed that claim debited in the profit and loss account. In support he filed the assessment order dated 30.03.2016 wherein the vide page 4 the same is discussed. Similarly, assessment for A. Y. 2014-15 was also completed u/s. 143(3) of the Act on 13.12.2016 accepting the claim of the assessee. Both these orders have been passed by the ld. AO after the TDS demand generated by the revenue. The ld. DR did not dispute or placed on record anything to the contrary from the ld. AO in support of the alleged TDS default when argued that the claim has been examined and accepted. Thus, in the litigation there must be a certainty and the settled issue should not be raised again and again when the revenue has already accepted the decision of the ld. CIT(A) for A. Y. 2009-10. We get support on this matter the view of the apex court in the case of Parashuram Pottery Works Co. Ltd Vs ITO [ 1977] 106 ITR 1 wherein the apex court held that; “It has been said that the taxes are the price that we pay for civilization. If so, it is essential that those who are entrusted with the task of calculating and realising that price should familiarise themselves with the relevant provisions and become well-versed with the law on the subject. to 81/JPR/2025 Alwar Malt and Agro Foods Manufactures Co. Ltd., Alwar. Any remissness on their part can only be at the cost of the national exchequer and must necessarily result in loss of revenue. At the same time, we have to bear in mind that the policy of law is that there must be a point of finality in all legal proceedings, that stale issues should not be reactivated beyond a particular stage and that lapse of time must induce repose in and set at rest judicial and quasi-judicial controversies as it must in other spheres of human activity. So far as the income-tax assessment orders are concerned, they cannot be reopened on the score of income escaping assessment under section 147 of the Act of 1961 after the expiry of four years from the end of the assessment year unless there be omission or failure on the part of the assessee to disclose fully and truly all material facts necessary for the assessment. As already mentioned, this cannot be said in the present case. The appeal is consequently allowed, the judgment of the High Court is set aside and the impugned notices are quashed.”
Thus, we are of the considered view that considering the discussion recorded herein above we are of the considered view that there is no infirmity in the finding so recorded in the order of the ld. CIT(A) and the view taken by the ld. CIT(A) is sustained and thereby the appeal of the revenue stands dismissed. In the result the appeal of the revenue in stands dismissed.
The facts of the case in & 81/JPR/2025 are similar to the case in ITA No. 79/JPR/2025 and we have heard both the parties and persuaded the materials placed on record. The bench has noticed that the issues raised by the assessee in these appeals No. 80 & 81/JPR/2025 are equally similar on set of to 81/JPR/2025 Alwar Malt and Agro Foods Manufactures Co. Ltd., Alwar. facts and grounds. Therefore, it is not imperative to repeat the facts and arguments of the parties and finding of the case again having similar facts. Hence, the bench feels that the decision taken by us in ITA No. 79/JPR/2025 for the Assessment Year 2016-17 shall apply mutatis mutandis in the case of Alwar Malt and Agro foods Manufactures Co. Ltd. in ITA No. 80 & 81/JPR/2025 for the Assessment Year 2014-15 & 2015-16. Based on these observations the appeal of the revenue in ITA No. 80 & 81/JPR/2025 stands dismissed.
In the result, the appeals of the Revenue are dismissed. Order pronounced in the open Court on 06/08/2025. Sd/- Sd/- ¼Mk0 ,l- lhrky{eh ½ ¼jkBksM deys'k t;UrHkkbZ½ (Dr. S. Seethalakshmi) (Rathod Kamlesh Jayantbhai) U;kf;d lnL;@Judicial Member ys[kk lnL;@Accountant Member Tk;iqj@Jaipur fnukad@Dated:- 06/08/2025. *Santosh आदेश की प्रतिलिपि अग्रेf’ात@ब्वचल वf जीम वतकमत वितूंतकमक जवरू 1. vihykFkhZ@The Appellant- Sh. ITO, Alwar. 2. izR;FkhZ@ The Respondent- Alwar Malt and Agro Foods Manufactures Co. Ltd., Alwar. 3. vk;dj vk;qDr@ CIT 4. विभागीय प्रतिनिधि] आयकर अपीलीय अधिकरण] जयपुर@क्त्ए प्ज्Aज्ए Jंपचनत.