2014 (3) TMI 1183 - AT - Income Tax

Bogus payment to sister concerns - as argued commission paid to assessee s sister concern was already offered for taxation - AO doubted the commission paid on the ground that the assessee has been changing its stand frequently - HELD THAT - There was nothing on record that the assessee has taken help of its sister concern. Even assuming that the assessee paid ₹ 25,00,000/-, when the Assessing Officer has asked the nature of payment, it has changed the stand and submitted that it was not commission and it was only an interest. When the AO has asked the assessee that it had already paid advance to sister concern M/s. ICMC Corporation Ltd. and why no interest was charged to that advance, the assessee has not given any explanation before the Assessing Officer or before the ld. CIT(Appeals) and even before the Tribunal. The assessee had changed its stand and bifurcated the amount of ₹ 25,00,000/- with various expenses. The assessee has not explained as to how it has bifurcated without giving any proper explanation. Simply because the sister concern had offered ₹ 25,00,000/- to tax, on that basis, the assessee cannot escape tax liability, particularly when the sister concern has not paid any tax by filing NIL return. We are of the opinion that the assessee has failed to discharge its burden cast upon it that the payment of ₹ 25,00,000/- is a genuine payment. Therefore, the appeal filed by the assessee stands dismissed.

Summary

Issues:
Assessment of expenses claimed as commission, change in stand regarding nature of expenses, disallowance of claimed expenses, tax liability on commission paid to sister concern.

Analysis:
1. The appeal was against the order of the Commissioner of Income Tax (Appeals) regarding the assessment year 2001-02. The assessee, a civil construction company, declared a loss initially but later assessed total income at &8377; 21,21,730. The Appellate Tribunal set aside the CIT(Appeals) order directing a fresh assessment. The company received &8377; 76,15,995 for work done for a telecom company and claimed expenses including &8377; 25,00,000 as commission. The Assessing Officer questioned the nature of this payment, initially claimed as commission, later said to be interest.

2. The assessee provided conflicting explanations regarding the &8377; 25,00,000 payment to its sister concern. The Assessing Officer found discrepancies in the explanations and disallowed the claimed expenses. The company argued that the commission was already offered for taxation by the sister concern. The Tribunal noted the lack of clarity in the payment details and the substantial amount paid as commission without a convincing explanation.

3. The Tribunal observed that the company failed to provide sufficient evidence to prove the genuineness of the &8377; 25,00,000 payment. Changing explanations and lack of proper documentation raised doubts about the nature of the expenses. The Tribunal dismissed the appeal, stating that the burden of proof regarding the genuineness of the payment was not met by the assessee.

4. The Tribunal concluded that the company's inconsistent explanations, lack of proper documentation, and substantial payment as commission without a clear rationale led to the dismissal of the appeal. The Tribunal upheld the disallowance of the claimed expenses and the tax liability on the commission paid to the sister concern.

5. In summary, the Tribunal found the company's explanations regarding the &8377; 25,00,000 payment to be inconsistent and lacking in credibility. The Tribunal upheld the disallowance of the claimed expenses and dismissed the appeal, stating that the burden of proof regarding the genuineness of the payment was not discharged by the assessee.