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2016 (7) TMI 1556 - AT - Income TaxTDS u/s 194H OR 194J - Disallowance of sub-brokerage - CIT(A) restricted the allowance to 50% as excessive and unreasonable within the meaning of Sec. 40A(2)(b) - HELD THAT - As decided in own case 2016 (2) TMI 383 - ITAT MUMBAI we hold that the provisions of Sec. 194H are attracted to the payments made towards sub-brokerage but not the provisions of Sec. 194J and we reverse the order of the Ld. CIT(A) in holding that provisions of Sec. 40A(2) are attracted. The grounds raised by the assessee are allowed. Admission of additional evidence - No opportunity was given to the Assessing Officer - violation of Rule 46A - HELD THAT - Admittedly the assessee filed additional evidences before the Ld. CIT(A) in respect of 3 creditors and Ld. CIT(A) called for comments of the Assessing Officer and the Assessing Officer forwarded the remand report on other issue without commenting anything on the creditors. In such circumstances the ground of the revenue that no opportunity was given to the Assessing Officer and therefore there is a violation of Rule 46A is wrong and cannot be sustained. This ground of the revenue is rejected.
Issues Involved:
1. Whether the sub-brokerage expenditure incurred by the assessee should be restricted to 50% of the brokerage earned. 2. Whether the sub-brokerage expenditure claimed by the assessee was excessive and unreasonable under Sec. 40A(2) of the Income Tax Act. 3. Whether the provisions of Sec. 194H or Sec. 194J are applicable to the payments made by the assessee to the sub-brokerage. 4. Whether the Ld. CIT(A) erred in not providing the Assessing Officer an opportunity to examine sundry creditors in violation of Rule 46A of the I.T. Rules. Issue-wise Detailed Analysis: 1. Restriction of Sub-Brokerage Expenditure: The assessee contended that the Ld. CIT(A) erred in restricting the allowance of sub-brokerage expenditure to 50% of the brokerage earned, arguing that the sub-brokerage paid was not unusual and ranged more than 50%. The Tribunal noted that the assessee provided evidence showing that other entities paid sub-brokerage in ratios of 60:40 and 80:20, and the expenditure was genuine. The Tribunal found that the lower authorities did not rebut these submissions. Consequently, it was held that the restriction imposed by the Ld. CIT(A) was not justified, and the assessee's claim for the full deduction of sub-brokerage was allowed. 2. Excessiveness and Unreasonableness under Sec. 40A(2): The Tribunal examined whether the sub-brokerage expenditure was excessive and unreasonable under Sec. 40A(2) of the Act. It was argued by the assessee that the sub-brokerage was paid to Stock Holding Corporation of India Ltd., a highly profitable entity, and the payment was driven by commercial considerations. The Tribunal observed that the lower authorities did not provide any clear findings that the market value of the services was less than the price paid. Citing precedents, the Tribunal emphasized that the Assessing Officer must establish the fair market value of the services before disallowing any expenditure under Sec. 40A(2). Since this was not done, the Tribunal reversed the Ld. CIT(A)’s order on this issue. 3. Applicability of Sec. 194H vs. Sec. 194J: The Tribunal addressed whether the payments made by the assessee to the sub-brokerage were subject to Sec. 194H (commission and brokerage) or Sec. 194J (fees for technical services). The Ld. CIT(A) had held that Sec. 194H was applicable, and the Tribunal agreed, noting that Sec. 194H specifically deals with commission and brokerage payments. Furthermore, it was observed that Sec. 194H carves out an exception for transactions in securities, meaning no tax was deductible for sub-brokerage paid. The Tribunal thus held that the provisions of Sec. 194J were not attracted. 4. Violation of Rule 46A: The Revenue argued that the Ld. CIT(A) did not give the Assessing Officer an opportunity to examine sundry creditors, violating Rule 46A. However, the Tribunal found that the Ld. CIT(A) had forwarded the additional evidence submitted by the assessee to the Assessing Officer for comments, but the Assessing Officer did not make any comments on the additional evidence. Therefore, the Tribunal rejected the Revenue's contention, stating that the claim of violation of Rule 46A was unsustainable. Conclusion: The Tribunal allowed the appeal filed by the assessee, granting the full deduction for the sub-brokerage expenditure and confirming that Sec. 194H was applicable to the payments made. The appeal filed by the Revenue was dismissed, with the Tribunal rejecting the claims of excessive expenditure under Sec. 40A(2) and the alleged violation of Rule 46A. The order was pronounced in the open court on 27th July 2016.
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