2013 (1) TMI 569 - AT - Income Tax

Disallowance of Commission - commission paid for high seas sales to a firm (M/s Motilon Synthetics in which the directors hold substantial interest - AO invoked the provisions of S. 40A(2b) - Held that - No document has been furnished which would substantiate the rendering of service by the firm to the assessee or any evidence to show that firms were introduced by the firm or the sales were brought in by the firm. From the copy of the letter dated 1.4.2000 appointing Motilon Synthetics as sole selling agent cointain certain conditions to be complied but nothing has been brought on record to prove the compliance of the aforesaid conditions. - From the schedule of the profit and loss account it is seen that Motilon has earned the commission only from the assessee & not from any other party and therefore it could not be established that Motilon is in the business of commission agency and has also earned commission from other parties - no reason to interfere with the order of CIT(A) - CIT(A) following the decisions of Apex Court (1972 (9) TMI 4 - SUPREME COURT) and (1966 (9) TMI 30 - SUPREME COURT) - Decided against the assessee. Disallowance of Interest - loan from Motilon Synthetics (sister concern) - assessee has given interest free advance to Baba Synthetics (also its sister concern) - Held that - Considering the undisputed fact that the assessee has paid interest on borrowed funds and had also lend interest free loan to its sister concern. CIT(A) while upholding the decision of AO has given a finding that assessee has not been in a position to prove the commercial expediency whereby it was required to give interest free loans to Baba Synthtics. As assessee could not controvert the findings of CIT(A) by bringing any material on record no reason to interfere with the order of CIT(A) - against assessee.

Summary

Issues Involved:
1. Disallowance of Commission.
2. Disallowance of Interest.
3. Miscellaneous - Charge of interest under section 234B of the Income Tax Act.

Detailed Analysis:

1. Disallowance of Commission:
The assessee, a company engaged in trading yarn and high seas sales, had paid a commission of Rs. 17,20,403 to a firm (M/s Motilon Synthetics) where the directors of the assessee company had substantial interest. The Assessing Officer (AO) disallowed this payment under section 40A(2)(b) of the Income Tax Act, as the firm did not engage in any activity other than the alleged high seas sales and had no other income except from the assessee. The AO concluded that no services were rendered by Motilon Synthetics and the payment was for extra commercial considerations. The CIT(A) upheld this disallowance, citing the lack of documentary evidence proving that services were rendered by Motilon Synthetics. The CIT(A) referenced the Supreme Court decisions in Lachiminarayan Madan Lal and Swadeshi Cotton Mills Ltd., which stated that mere existence of an agreement or payment of commission does not prove that services were rendered or that the payment was for business purposes. The ITAT also upheld the CIT(A)'s decision, noting that the assessee failed to provide evidence of compliance with the conditions set out in the appointment letter and that Motilon Synthetics had not earned any commission from other parties, indicating it was not in the business of commission agency.

2. Disallowance of Interest:
The AO disallowed Rs. 79,692 out of the total interest of Rs. 5,57,130 paid by the assessee on borrowed funds from its sister concern, Motilon Synthetics, as the assessee had also given an interest-free advance to another sister concern, Baba Synthetics. The AO concluded that the borrowed funds were not utilized for business purposes. The CIT(A) upheld this disallowance, referencing the Supreme Court decision in S.A. Builders, which allows disallowance of interest if loans/advances are given without commercial expediency. The CIT(A) noted that the assessee failed to demonstrate any commercial expediency for giving interest-free loans to Baba Synthetics. The ITAT also upheld the CIT(A)'s decision, as the assessee could not provide any material evidence to prove the commercial expediency of the interest-free loans.

3. Miscellaneous - Charge of Interest under Section 234B:
The CIT(A) did not consider the charge of interest under section 234B of the Income Tax Act. This issue was not adjudicated separately as it was deemed general and consequential in nature.

Conclusion:
The appeal of the assessee was dismissed, with the ITAT upholding the decisions of the AO and CIT(A) on both the disallowance of commission and interest. The ITAT found no reason to interfere with the CIT(A)'s findings due to the lack of evidence provided by the assessee to substantiate their claims. The other grounds raised were not adjudicated as they were general and consequential. The order was pronounced in open court on 28.12.2012.