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2014 (5) TMI 544 - AT - Income TaxAddition made under the agency commission as business expenses excessive - Held that - There was no formal written agreement between the assessee and the agent, but commission has been paid on regular basis to the agent in earlier as well as subsequent assessment years - Mere existence of an agreement cannot decide the allowability of commission payment it is the presence of surrounding circumstances and basic facts that decide the issue in conclusive manner non-existence of written agreement cannot be sole base for disallowance of commission payment, if other evidences prove the fact of incurring of such expenditure wholly and exclusively. Following ACIT-18(2), Mumbai Versus M/s. Anand Enterprises 2011 (1) TMI 1270 - ITAT MUMBAI - The fact that the assessee did pay commission to its foreign agent has been acknowledged by the AO as is apparent from his decision in restricting the deduction to 2. 88% of the turnover - Once the commission is accepted to have been paid, there is no logic in disallowing such expenditure by holding that it was excessive - It is for the assessee to determine the way in which it has to carry on its business - commission paid by the assessee to its agent is an allowable expenditure - The Circular of the RBI is on record and that the absence of the said circular was one of the reasons for disallowance the order of the FAA is set aside Decided in favour of Assessee.
Issues Involved:
1. Disallowance of business expenditure under the head "Agency Commission" for AY 2008-09 and AY 2009-10. 2. Justification and evidence for payment of agency commission. 3. Absence of a written agreement and its impact on the allowability of commission. 4. Verification of commission related to earlier years. Detailed Analysis: 1. Disallowance of Business Expenditure under the Head "Agency Commission": The assessee-firm challenged the orders of the CIT(A) which upheld the additions made by the Assessing Officer (AO) for disallowing business expenditure under the head "Agency Commission". For AY 2008-09, the disallowed amount was Rs. 59,23,456, and for AY 2009-10, it was Rs. 46,07,195. 2. Justification and Evidence for Payment of Agency Commission: During the assessment proceedings, the AO found that the assessee-firm, engaged in manufacturing and exporting readymade garments, had debited substantial amounts as agency commission. The AO directed the assessee to justify the payment and provide a copy of the Agency Commission Agreement. The assessee submitted statements and correspondence but failed to produce a written agreement or bills for the commission. The AO noted discrepancies such as the absence of substantial increase in turnover and the lack of new customers, concluding that the commission expenses were claimed to reduce taxable profit. The FAA upheld the AO's decision, emphasizing the lack of documentary evidence and the absence of a written agreement. 3. Absence of a Written Agreement and Its Impact on the Allowability of Commission: The assessee argued that commission payments were made in earlier years without a written agreement and were accepted by the AO in previous assessments. The Tribunal noted that the principle of res judicata does not apply to income tax proceedings, but the rule of consistency should be maintained. The Tribunal acknowledged that business practices sometimes involve commission payments without formal agreements and that such payments should not be disallowed solely due to the absence of a written agreement if other evidence supports the expenditure. 4. Verification of Commission Related to Earlier Years: The AO disallowed Rs. 11.94 lakhs of commission expenses related to earlier years, citing a lack of supporting documentary evidence. The Tribunal directed the AO to verify the claim, allowing the assessee to produce evidence of disputes with the agent and justify the payment of commission for earlier years in the current year. The Tribunal confirmed the disallowance of Rs. 1,57,820/- due to a duplicate claim admitted by the assessee. Conclusion: For AY 2008-09, the Tribunal allowed the commission expenditure except for Rs. 1,57,820/- (duplicate claim) and directed the AO to re-examine Rs. 11.94 lakhs related to earlier years. For AY 2009-10, the Tribunal reversed the FAA's order, allowing the commission expenditure based on the reasons provided for AY 2008-09. The appeals for AY 2008-09 were allowed in part, and the appeal for AY 2009-10 was fully allowed. Order Pronounced: The judgment was pronounced in the open court on 30th April, 2014.
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