2011 (12) TMI 534 - AT - Income Tax

Eligible for deduction u/s 80IB - Sales tax incentive - Held that - Sales tax incentive which has been retained by the assessee from the Sales Tax collected has to be held as derived from the industrial undertaking and consequently is eligible for deduction u/s 80IB of the Act. In this view of the matter the order of the ld. CIT(A) is set aside and the A.O. is directed not to exclude the sales tax incentive of 12, 94, 109/- and 84, 687/- from the profit of Unit-1 and Unit II respectively while calculating deduction u/s 80IB of the Act. The ground raised by the assessee is accordingly allowed. Addition u/s 40A(2) - related party - Held that - Comparison cannot be made with all India operation and restricted area of operation. We do not find much force in the above submission of the ld. counsel for the assessee. The ld. CIT(A) has already given a finding that the quantum of sales effected through M/s Shanti Udyog was 852 lacs and they were paid commission @ 1.5%. The related party through whom the sales effected was 869 lacs has been paid commission @ 3.75% commission. From the analysis made by the A.O. in the body of the assessment order we find the commission paid to unrelated parties ranges from 1.5% to 3% whereas commission in the case of related party is 3.75%. Even assuming that the related party has rendered some extra services such as giving market information feed back regarding changing trends as well as commercial information etc. and giving services on all India basis still such huge increase in the rate of commission appears to be in higher side. Considering the totality of the facts of the case and considering the fact that the commission to un-related parties varies from 1.5 to 3% therefore payment of commission @ 3% to the related party as against 2.5% allowed by the A.O. in our opinion is reasonable and will meet the ends of justice. We hold and direct accordingly. The ground raised by the assessee is accordingly party allowed.

Issues Involved:
1. Denial of deduction under Section 80IB on interest received on margin money.
2. Exclusion of sales tax incentives while computing deduction under Section 80IB.
3. Disallowance of commission paid to a related party under Section 40A(2).

Detailed Analysis:

1. Denial of Deduction under Section 80IB on Interest Received on Margin Money:
The assessee did not press this ground, and the Department had no objection. Consequently, this ground was dismissed as not pressed.

2. Exclusion of Sales Tax Incentives while Computing Deduction under Section 80IB:
The core issue was whether sales tax incentives should be included in the profits for the purpose of computing the deduction under Section 80IB. The Assessing Officer (A.O.) excluded these incentives, relying on the Supreme Court decisions in CIT v. Sterling Foods and Pandian Chemicals Ltd. v. CIT, which held that such incentives are not derived directly from the business.

On appeal, the Commissioner of Income Tax (Appeals) [CIT(A)] upheld the A.O.'s decision, citing various judgments that supported the exclusion of sales tax incentives from the deduction calculation. The assessee argued that the sales tax incentive had a direct nexus with the sales and profits of the industrial undertaking, referencing the Bombay High Court decision in CIT v. Vidyut Corporation and the Gauhati High Court decision in CIT v. Meghalaya Steels Ltd., which supported the inclusion of such incentives.

The Tribunal, after considering the arguments and the relevant case laws, concluded that there is an inextricable link between the manufacturing activity, the payment of sales tax, and the sales tax incentive. Therefore, the sales tax incentive retained by the assessee should be considered as derived from the industrial undertaking and eligible for deduction under Section 80IB. The Tribunal set aside the CIT(A)'s order and directed the A.O. to include the sales tax incentive in the profits for deduction purposes.

3. Disallowance of Commission Paid to a Related Party under Section 40A(2):
The assessee paid a commission to Shatul Commercial Co. Pvt. Ltd., a related party, at a higher rate compared to other unrelated parties. The A.O. disallowed the excess commission paid, arguing that the payment to the related party was excessive and unjustified.

The CIT(A) upheld the A.O.'s decision, noting that the commission rate paid to the related party was significantly higher than that paid to other parties for similar services. The assessee contended that the higher rate was justified due to the broader range of services provided by the related party, including all-India operations and technical support.

The Tribunal examined the arguments and the evidence presented, including the agreements with various commission agents. It acknowledged the broader scope of services provided by the related party but found the increase in the commission rate excessive. The Tribunal decided that a commission rate of 3% for the related party, instead of the 2.5% allowed by the A.O., was reasonable and would meet the ends of justice. Consequently, the Tribunal partially allowed the assessee's appeal on this ground.

Conclusion:
The appeal filed by the assessee was partly allowed. The Tribunal directed the inclusion of sales tax incentives in the profits for deduction under Section 80IB and adjusted the allowable commission rate for the related party to 3%.

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