2014 (12) TMI 173 - AT - Income Tax

Assessment u/s 153A Additions towards payment of commission on sale or purchase to brokers - revenue contended that Whole gamut of raising bill for commission at the fag end of the year and receiving cheques from the assessee company for commission in the next year, is a make believe arrangement between the assessee company and these so claimed brokers to siphon off the profit to evade tax. - assessee submitted that the parties to whom commission have been paid have either confirmed directly to the department in response to notices U/s 133(6) or the appellant has filed confirmation from the parties concerned. Held that - in the line of business, mostly goods is being sold through brokers on which commission is paid - Purchase also made through brokers, therefore, it requires to pay commission to the middle man who make available of goods from the market - assessee has submitted confirmations, PAN number, copy of return in some case copy of bank account with confirmations - on verification of confirmations, in all the cases TDS has been deducted by the assessee on commission - CIT(A) specifically mentioned commission paid to M/s SKT on purchase, who is dealing in Tissue paper, craft paper, card board and other types of boards etc., in A.Y. 2008-09 assessee submitted that details of commission paid to it on purchases made by the assessee along with copy of bills, confirmations and bank statements of assessee company evidencing the payment of commission has been filed before the CIT(A) - It also filed copy of agreement dated 21/3/2007 between assessee and M/s SKT - the assessee had deducted TDS at ₹ 3,94,757 - the assessee had paid this commission in subsequent year to M/s SKT after deducting TDS - additions confirmed by the CIT(A) deserve to be deleted Decided in favour of assessee.

Issues Involved:
1. Confirmation of part of the addition made by the Assessing Officer under Section 153A.
2. Disallowance of commission expenses due to lack of agreements on prescribed stamp paper.
3. Addition made under Section 153A without incriminating material found during search.
4. Disallowance of commission expenses previously not disallowed in assessments under Sections 147/143(3).

Detailed Analysis:

Issue 1: Confirmation of Part of the Addition Made by the Assessing Officer under Section 153A
The assessee challenged the confirmation of part of the addition made by the Assessing Officer (AO) under Section 153A. The Commissioner of Income Tax (Appeals) [CIT(A)] had confirmed the additions on the grounds that the agreements for commission payments were not executed on prescribed stamp paper. The AO had issued notices under Section 133(6) to brokers who received commission payments, seeking detailed documentation, which many brokers failed to provide timely or adequately. The AO concluded that the commission payments were not genuine, as brokers could not provide complete addresses, telephone numbers, or booking forms, and payments were often credited at the end of the accounting year. The CIT(A) partially allowed the commission expenses where agreements were on stamp paper, but disallowed others, leading to the confirmation of part of the addition.

Issue 2: Disallowance of Commission Expenses Due to Lack of Agreements on Prescribed Stamp Paper
The CIT(A) disallowed commission expenses where agreements were not executed on prescribed stamp paper, considering them non-genuine. The assessee argued that commission payments were a regular business practice, supported by confirmations, PAN numbers, bank statements, and TDS deductions. The CIT(A) allowed commission expenses for brokers with agreements on stamp paper, either in the current or previous years, but disallowed expenses for brokers without such agreements. The ITAT found that the assessee provided sufficient evidence, including confirmations and TDS deductions, and allowed the commission expenses, reversing the CIT(A)'s disallowance.

Issue 3: Addition Made under Section 153A Without Incriminating Material Found During Search
The assessee contended that no incriminating material was found during the search under Section 132, which warranted the addition under Section 153A. The CIT(A) and AO had made additions based on the lack of proper documentation for commission payments. The ITAT did not provide a specific finding on this technical ground, as the appeals were allowed on merit.

Issue 4: Disallowance of Commission Expenses Previously Not Disallowed in Assessments under Sections 147/143(3)
The assessee argued that commission expenses were not disallowed in previous assessments under Sections 147/143(3) and should not be disallowed now. The ITAT considered the regular business practice of paying commissions and the evidence provided, including confirmations and TDS deductions, and allowed the commission expenses, reversing the CIT(A)'s disallowance.

Conclusion:
The ITAT allowed the appeals filed by the assessee for all assessment years, finding that the assessee provided sufficient evidence to support the commission expenses. The ITAT reversed the CIT(A)'s disallowance of commission expenses and did not provide a specific finding on the technical ground related to Section 153A. The appeals were allowed on merit, recognizing the regular business practice and the evidence provided by the assessee.

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