Airlines to deduct TDS u/s 194H on supplementary commission of travel agents – SC 

Airlines required to deduct tax at source (TDS) u/s 194H on supplementary commission of travel agents – Supreme Court

ABCAUS Case Law Citation
ABCAUS 3617 (2022) (11) SC

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Lakshminarayan Ram Gopal and SonsLtd. vs. The Government of Hyderabad

The main dispute between the airlines and the Revenue   in this case was the true characterization of the supplementary commission income earned by the travel agent besides the Standard Commission of 7% and whether this additional portion would be subject to TDS requirements under Section 194H of the Income Tax Act, 1961 (the Act)?

In the instant case, the High Court of Delhi whereby the   High Court allowed the appeal by the Revenue and held that Airline were required to deduct TDS under Section   194H on the Supplementary Commission. Whereas, there were contradictory pronouncements by different High   Courts in the ensuing years.

Hon’ble Supreme Court concluded that Section 194H is to be read with Section 182 of the Contract Act. If a   relationship between two parties as culled out from   their intentions as manifested in the terms of the contract   between them indicate the existence of a principal­ agent relationship as defined under Section 182 of the Contract Act, then the definition of “Commission” under Section   194H of the Act stands attracted and the requirement to deduct TDS arises.

The Hon’ble Supreme Court further opined that it was   practical and feasible for the Airlines to utilize the information provided by the BSP and the payment   machinery employed by the IATA to make a consolidated deduction of TDS from the Supplementary Commission   to satisfy their mandatory duties under Chapter XVII­B of the Act.

The Hon’ble Supreme Court further stated that since as agreed by the parties, the travel agents had already paid income tax on the Supplementary Commission, there can be no further recovery of the shortfall in TDS owed by   the Airlines. However, interest may be levied under Section 201(1A) of the IT Act.

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