2006 (12) TMI 113 - HC - Income Tax

Disallowance u/s 40A(2) - Payment of commission - sales turnover - unreasonable and excessive commission paid - HELD THAT - It is seen that the sister company was the sole selling agent for several years and it had earned the reputation of sole selling agent of the assessee-company. As mentioned earlier, disallowance is only 4 per cent. 10 per cent. commission in terms of clause 8 as mentioned earlier is not absolute. It provides for various discounts. In these circumstances, we are of the view that there cannot be any microscopic consideration and a broader view has to be taken, taking into consideration the business intention and business consideration. So long as there is no intention to evade tax and so long as the commission is not shocking, the said commission has to be accepted particularly in the light of the wordings of section 40A(2) of the Act. It is not the quantum alone that governs in such cases. Fair market value of the goods, services, legitimate needs of the business or profession of the assessee, would be the guiding factor in terms of section 40A(2) of the Act. In the case on hand, though the Assessing Officer has chosen to give 5 per cent., the Commissioner himself has chosen to increase the same to 6 per cent. and only 4 per cent. is disallowed. Even that 4 per cent. is not absolute and it is after deductions in terms of the agreement. Taking into consideration the long standing relationship and also taking into consideration the reputation of the brand and the agent and also taking into consideration that there is no intention to avoid tax, the Tribunal rightly in our view has chosen to accept the case of the assessee with regard to 4 per cent. commission. We, therefore, do not find any unreasonableness in the given circumstances. In fact this Bench recently has chosen to consider some what a similar case in Recon Machine Tools P. Ltd. v. CIT 2006 (5) TMI 70 - KARNATAKA HIGH COURT and thereafter this court has chosen to hold that reduction from 5 per cent. to 2 per cent. is an arbitrary reduction. An overall view of the matter would compel us to confirm the order of the Tribunal in the given circumstances. In the result, the questions of law are answered in favour of the assessee and against the Revenue.

Issues Involved:
1. Applicability of Section 40A(2) of the Income-tax Act, 1961.
2. Reasonableness of the commission paid by the respondent-assessee to its sister concern.
3. Material and evidence supporting the Tribunal's decision.
4. Maintainability of the appeals before the Tribunal.

Issue-wise Detailed Analysis:

1. Applicability of Section 40A(2) of the Income-tax Act, 1961:
The core issue revolves around whether the provisions of Section 40A(2) are attracted concerning the commission paid by the respondent-assessee to its sister concern. The assessing authority initially held that the commission paid was unreasonable and thus restricted the payment to 6%, considering the commission of 10% excessive. This decision was upheld by the Assistant Commissioner but reversed by the Tribunal, which allowed the full 10% commission. The Tribunal's decision was based on the agreement dated July 1, 1990, which stipulated a 10% commission on sales turnover after specific deductions.

2. Reasonableness of the Commission:
The Tribunal's acceptance of the 10% commission was based on the sole selling agency agreement and the long-standing relationship between the parties. The Tribunal found that the commission was not excessive or unreasonable given the services rendered. The assessing authority's decision to disallow 4% of the commission was challenged, and the Tribunal concluded that the commission was justified. The court emphasized that the commission's reasonableness should be considered in light of business intentions and legitimate needs rather than solely on quantum.

3. Material and Evidence Supporting the Tribunal's Decision:
The Tribunal relied on the agreement and the historical context of the relationship between the assessee and its sister concern. The court noted that the agreement provided for various discounts and deductions, and the commission was not an absolute 10%. The court also referenced several judgments, including the Supreme Court's ruling in Nund and Samont Co. P. Ltd. v. CIT, which emphasized the taxpayer's burden to justify the allowance. The Tribunal's decision was supported by the absence of evidence suggesting an intention to evade tax or that the commission was shockingly excessive.

4. Maintainability of the Appeals Before the Tribunal:
The Tribunal's decision to entertain the appeals was questioned but ultimately upheld. The court found that the appeals were maintainable, and the Tribunal was correct in reversing the assessment and appellate orders. The court highlighted that the broader business context and long-standing relationship justified the commission, and there was no basis for disallowing the 4% commission.

Conclusion:
The court concluded that the Tribunal was justified in accepting the 10% commission as reasonable and not excessive. The questions of law were answered in favor of the assessee and against the Revenue. The court emphasized that a broader view should be taken, considering business intentions and legitimate needs, rather than a microscopic examination of the commission's quantum. The appeals were thus disposed of, confirming the Tribunal's decision.

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