IN THE HIGH COURT OF DELHI AT NEW DELHI 
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   ITA 635/2012, C.M. APPL. 19048/2012  
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 CIT            ..... Appellant 
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 Through : Ms. Suruchi Aggarwal, Sr. Standing Counsel. 
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 versus 
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 OGAAN PUBLICATION PVT LTD     ..... Respondent 
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 Through : Nemo. 
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 CORAM: 
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 HON'BLE MR. JUSTICE S. RAVINDRA BHAT 
 . 
 HON'BLE MR. JUSTICE R.V.EASWAR 
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 O R D E R 
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      09.11.2012 
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 The Revenue claims to be aggrieved by the order of the Income Tax 
 Appellate Tribunal dated 30.03.2012 rejecting its appeal in ITA 
 5050/Del/2011. It contends and seeks to urge that the question of law 
 arising in this case is whether the lower appellate authorities fell into 
 error in holding that the amount of Rs.1,84,36,982/- paid by the assessee 
 to advertisement agencies did not attract provisions of Section 194H. The 
 brief facts are that the said amount (Rs.1.84 crores) was added back to 
 the income under Section 40(a)(ia). The revenue held that the assessee 
 was liable for deduction of tax on these payment under Section 190H and 
 since there was a failure to deduct the tax, the amount was directed to 
 be disallowed under Section 40(a)(ia). 
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 The Appellate Commissioner deleted this direction by the AO 
 noticing that in respect of previous assessment years 2006-07, 2007-08, 
 the assessee?s contentions had been accepted. Apparently, the matter had 
 travelled even upto the Tribunal in respect of those assessment years. In 
 that order dated 31.05.2011, the Tribunal inter alia held as follows: 
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 ?35. The perusal of both the above mentioned transactions will reveal 
 that assessee is giving discount with respect to volume as well as agency 
 commission irrespective of the fact that whether the advertisement is 
 booked by the advertiser itself or through advertising agency. The 
 assessee did not collect gross amount and from gross amount itself 
 straightway deduction has been granted to the person who has booked the 
 advertisement on account of volume discount as well as agency commission. 
 It may be seen that in the case of Moon River (M.G. Inds.) the 
 advertisement has not been booked by advertising agency even then amount 
 of Rs.11,250/- has been reduced on account of agency commission. 
 Therefore, it will clearly demonstrate that assessee is concerned only 
 with the amount to be realized finally which is the same in both type of 
 transactions. Therefore, the nature of amount agency commission is only a 
 discount though it has been described as ?agency commission.? Both the 
 transactions are on principal to principal basis. The case law relied 
 upon by the assessee before CT(A) and before us supports the case of the 
 assessee. Therefore, we are of the opinion that ld. CIT(A) is right in 
 holding that disallowance could not be made as assessee was not under an 
 obligation to deduct tax u/s 194H. We decline to interfere. This ground 
 of the revenue for both the years is dismissed.? 
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 It is also noticed that the order of the Tribunal had been carried 
 in appeal to this Court in ITA 182/2012 which was rejected. The Court 
 held as follows: 
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 ?4. Before us the copy of the agreement between the respondent-assessee 
 and the advertising concerns has not been placed. It is not shown and 
 stated how and on what basis it is stated that the finding recorded by 
 the Tribunal that the transactions were between principal and principal 
 is not correct and the contention that the transactions were between a 
 principal and an agent is urged. The advertising concern had purchased 
 the space in the publication and had sold the same to third parties. The 
 factual finding recorded by the Tribunal is that amount treated and given 
 nomenclature of commission was a discount and what was received by the 
 assessee was the net amount. The description/deduction given in the bill 
 was in fact and de facto not commission. In the case of Director Prasar 
 Bharti (supra), the finding of the High Court was that the transactions 
 were between a principal and an agent and the Court had referred to the 
 agreement entered into by the Doordarshan and its agencies. The Kerala 
 High Court in the said case, distinguished Ahmedabad Stamp Venders 
 Association v. UOI (2002) 257 ITR 202 (Guj) and M.S. Hameed v. Director 
 of State Lotteries (2001) 249 ITR 186 (Ker) on the ground that they 
 related to discounted prices.? 
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 This Court sees no reason to differ with the view taken in ITA 
 181/2012 and 182/2012 (CIT v. Ogaan Publication Pvt. Ltd., decided on 
 16.03.2012). 
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 No question of law arises for consideration; the appeal and pending 
 application are consequently dismissed. 
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 S. RAVINDRA BHAT, J 
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 R.V.EASWAR, J 
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 NOVEMBER  09, 2012 
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 ?ajk? 
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 $ 30 
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