2016 (2) TMI 383 - AT - Income Tax

Disallowance of sub-brokerage - CIT(A) restricted the allowance to 50% as excessive and unreasonable within the meaning of Sec. 40A(2)(b) of the Act - AO disallowed the claim as assessee has not deducted TDS u/s. 194J - Held that - Observation of the Ld. CIT(A) that it is for the appellant to prove beyond all doubt that the payment made constituted the fair market value of the services received is not justified since assessee has given instances where the sub-brokerage was paid at 70% of the commission received. Further a list of parties were submitted to show that the sub-brokerage paid was in the ratio of 60 40 and 80 20 depending on the market conditions. The lower authorities have not made any enquiries to disprove the submissions of the assessee. We are not in agreement with the Ld. CIT(A) in holding that the brokerage paid should be restricted by invoking the provisions of Section 40A(2) of the Act. Thus we set aside the order of the Ld. CIT(A) on this issue. As we have upheld the order of the Ld. CIT(A) in holding that the sub-brokerage paid would fall under the provisions of Sec. 194H and not under the provisions of Section 194J, the provisions of Sec. 40A(2) have no application in the facts and circumstances of the case, we dismiss the Revenue s appeal.

Summary

Issues Involved:
1. Disallowance of sub-brokerage under Section 40A(2)(b) of the Income Tax Act.
2. Applicability of Section 194J versus Section 194H for sub-brokerage payments.
3. Levying of penalty under Section 271(1)(c) of the Income Tax Act.

Issue-Wise Detailed Analysis:

1. Disallowance of Sub-Brokerage under Section 40A(2)(b):
The first issue concerns the disallowance of sub-brokerage paid by the assessee to its holding company, Stock Holding Corporation of India Ltd., under Section 40A(2)(b) of the Income Tax Act. The Assessing Officer (AO) disallowed the sub-brokerage payment on the grounds that it was excessive and unreasonable. The assessee argued that the sub-brokerage paid was not unusual and provided evidence that other entities paid sub-brokerage higher than 50%, sometimes up to 70-80%. The CIT(A) invoked Section 40A(2)(b) and restricted the allowance to 50% of the expenditure incurred, stating that the payment was excessive. However, the Tribunal found that the lower authorities did not provide evidence to justify the claim that the sub-brokerage was excessive. The Tribunal cited various cases, including Orchard Advertising (P) Ltd. and Edwise Consultants Pvt. Ltd., emphasizing that the AO must establish the fair market value of the services before invoking Section 40A(2). The Tribunal concluded that the disallowance under Section 40A(2) was not justified and set aside the CIT(A)'s order on this issue.

2. Applicability of Section 194J versus Section 194H:
The second issue pertains to whether the sub-brokerage payments fall under Section 194J (fees for technical services) or Section 194H (commission/brokerage). The AO contended that the sub-brokerage payments were fees for technical services and thus attracted Section 194J. The assessee argued that the payments fell under Section 194H, which specifically deals with commission and brokerage. The CIT(A) accepted the assessee's contention that the payments fell under Section 194H and were exempt from tax deduction at source (TDS) due to the specific provision dealing with securities transactions. The Tribunal agreed with the CIT(A) and held that the payments were indeed covered under Section 194H and not Section 194J. The Tribunal referenced decisions from the Mumbai and Kolkata Benches, which supported this interpretation.

3. Levying of Penalty under Section 271(1)(c):
The third issue involved the penalty levied under Section 271(1)(c) due to the disallowance of sub-brokerage. Since the Tribunal deleted the disallowance of sub-brokerage in the quantum appeal, the basis for the penalty no longer existed. Consequently, the Tribunal allowed the appeal concerning the penalty, stating that the question of levying penalty under Section 271(1)(c) did not arise.

Conclusion:
The Tribunal allowed both appeals filed by the assessee and dismissed the appeal filed by the Revenue. The Tribunal upheld that the sub-brokerage payments fell under Section 194H and not Section 194J, and that the disallowance under Section 40A(2)(b) was not justified. Consequently, the penalty under Section 271(1)(c) was also deleted. The order was pronounced in the open court on 5th February 2016.