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2012 (11) TMI 415 - AT - Income TaxDisallowance of Commission Held that - Commission to the extent it exceeds 40% of the brokerage received by the assessee from the clients is clearly prohibited by law and to that extent, as per, Explanation to section 37(1) will clearly be applicable, thus disallowed - AO shall re-decide this issue after considering Bye-Law 218 of the Stock Exchange Ahmedabad after giving proper and reasonable opportunity to the assessee and to allow the commission only to the extent it is permissible in accordance with Bye-Law 218 of the Ahmedabad Stock Exchange - In the result, appeal of the assessee is allowed for statistical purpose.
Issues:
Disallowance of commission expenses under section 37(1) of the Act. Analysis: The appeal pertains to the assessment year 2006-2007 and challenges the order of the CIT(A)-I, Surat dated 28.10.2009 regarding the disallowance of commission expenses amounting to Rs. 5,08,931. The assessee contended that the commission payments were made for business purposes only and provided a list of parties to whom the commissions were paid along with their PAN and address. The AO disallowed the commission based on a violation of SEBI Regulations, invoking section 37(1) of the Act. The counsel for the assessee argued that a similar issue was decided in favor of the assessee by the ITAT, Ahmedabad Bench in a group case, directing the AO to allow commission payments not exceeding 40% of the brokerage received, after considering relevant bye-laws. The DR, however, supported the orders of the AO and CIT(A), emphasizing the violation of SEBI Regulations and Bye-Laws. The Tribunal reviewed the arguments and the decision in the aforementioned case of ACIT Vs. H. Nyalchand Financial Services Ltd. The Tribunal noted that the issue revolved around the disallowance of commission payments due to alleged violations of SEBI Regulations and Bye-Laws. It was observed that the assessee had paid commissions to various parties, and the only objection raised was the violation of regulations, deemed against public policy under section 37(1) of the Act. The Tribunal referred to Bye-Law 218, which imposed restrictions on the sharing of brokerage with certain individuals. The Tribunal concluded that there was no prohibition on commission payments to parties introducing clients to the assessee, as long as it complied with the conditions stipulated in the bye-law. Therefore, the Tribunal set aside the CIT(A)'s order and directed the AO to allow the deduction of introductory commissions, ensuring compliance with the prescribed limits. The Tribunal emphasized the need for a fair assessment based on the relevant bye-laws and regulations. In alignment with the decision in ACIT Vs. H. Nyalchand Financial Services Ltd., the Tribunal allowed the appeal for statistical purposes and remanded the issue to the AO. The AO was instructed to reevaluate the matter considering the relevant bye-laws of the Stock Exchanges and determine if the commission payments exceeded the permissible limits, providing the assessee with a reasonable opportunity to present their case. The Tribunal's decision was based on ensuring a just and lawful assessment of the commission expenses in accordance with the applicable regulations. In conclusion, the Tribunal's judgment focused on the compliance of commission payments with SEBI Regulations and Bye-Laws, emphasizing the need for a thorough review by the AO to determine the permissibility of the expenses based on the prescribed limits and conditions outlined in the relevant regulations.
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