2004 (8) TMI 642 - AT - Income Tax

Business expenditure - commission payment - HELD THAT - It is an admitted fact that the names and addresses of the parties to whom the payments were made, have been given, the Bank Statement showing payments though the Cheques was also not disputed and the income tax particulars of the Commission agents have also not been disputed. We are of the opinion that the assessee has discharged its primary onus of establishing the genuineness of the transactions and the Assessing Officer has not rebutted the contentions of the assessee. We also find that the case law relied on by the Ld. CIT(A), while confirming this addition, is not relevant to the facts of this case. The case of Goodlas Nerolac Paints Ltd. 1982 (1) TMI 40 - BOMBAY HIGH COURT relates to the secret commission, paid to the employees/customers to keep them happy, was claimed as selling expenses. The names and addresses to which commission was alleged to have been paid, was not disclosed to the Assessing Officer. Therefore, it was held that the expenses claimed were not allowable. The facts of the instant case are quite different. The assessee has not only given the names and addresses but also other supporting evidences were also given regarding the genuineness of the transactions. Therefore, we are of the considered opinion that the addition made by the Assessing Officer and confirmed by the Ld. CIT(A), is not sustainable. The same is, therefore, deleted. This ground of the assessee is therefore, allowed. In the result, Assessee appeal is allowed.

Issues Involved:
1. Relief of Rs. 17,012 under the head freight charges.
2. Relief of Rs. 2,05,966 on account of addition of cash credits u/s 68.
3. Disallowance of Rs. 6,965 under the head "Telephone expenses (residence)".
4. Disallowance of Rs. 7,000 under the head "Telephone expenses (Other)".
5. Deletion of an addition of Rs. 4,00,000 made u/s 41(1).
6. Disallowance of commission payment of Rs. 3,79,880.

Summary:

1. Relief of Rs. 17,012 under the head freight charges:
The Department appealed against the CIT(A)'s order granting relief of Rs. 17,012 for freight charges. The Assessing Officer (AO) had added Rs. 5,17,012 due to increased freight charges despite reduced purchases, payments to a sister concern, and lack of competitive tendering. The CIT(A) accepted the assessee's explanation of increased distances and costs. The Tribunal upheld the CIT(A)'s decision, dismissing the Department's ground.

2. Relief of Rs. 2,05,966 on account of addition of cash credits u/s 68:
The Department challenged the deletion of Rs. 2,05,966 added as cash credits u/s 68, which included a Rs. 30,000 gift and Rs. 1,75,966 advance from M/s. Asha Udyog. The AO doubted the genuineness of the gift and the existence of M/s. Asha Udyog. The CIT(A) found the gift valid and the advance a trade liability, not a cash credit. The Tribunal upheld the CIT(A)'s decision, dismissing the Department's ground.

3. Disallowance of Rs. 6,965 under the head "Telephone expenses (residence)":
The AO disallowed Rs. 20,000 out of Rs. 26,070 for the residential telephone of the managing partner, citing personal use. The CIT(A) restricted the disallowance to 50%, acknowledging business use. The Tribunal found no infirmity in the CIT(A)'s order and dismissed the Department's ground.

4. Disallowance of Rs. 7,000 under the head "Telephone expenses (Other)":
The AO disallowed Rs. 12,000 for office telephone expenses due to personal use. The CIT(A) restricted this to Rs. 5,000. The Tribunal upheld the CIT(A)'s decision, dismissing the Department's ground.

5. Deletion of an addition of Rs. 4,00,000 made u/s 41(1):
The AO added Rs. 4,00,000 u/s 41(1) as a ceased liability from a loan outstanding for 3-4 years without interest. The CIT(A) found the liability existed during the year and deleted the addition. The Tribunal upheld the CIT(A)'s decision, dismissing the Department's ground.

6. Disallowance of commission payment of Rs. 3,79,880:
The assessee appealed against the CIT(A)'s order disallowing Rs. 3,79,880 in commission payments. The AO added this amount due to unserved notices and non-response from commission recipients. The CIT(A) upheld the addition, citing lack of proof of identity and services rendered. The Tribunal found the assessee had provided sufficient evidence and deleted the addition, allowing the assessee's ground.

Conclusion:
The Tribunal dismissed the Department's appeal and allowed the assessee's appeal, upholding the CIT(A)'s decisions on all issues except the disallowance of commission payment, which was deleted.

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