2007 (8) TMI 309 - HC - Income Tax

Whether, the Income Tax Appellate Tribunal, was right in law in holding that commission paid by the assessee to the agents is an allowable expenditure Held, yes - there are findings by the Tribunal that the expenditure on payment of commission was for advancing the purpose of the assessee s business - agents were appointed for commercial expediency therefore order of tribunal require no interference appeal by department is dismissed

Summary

Issues:
1. Allowability of commission paid by the assessee to agents as an expenditure for assessment year 1988-89.

Analysis:
The judgment of the High Court dealt with the issue of whether the commission paid by the assessee to various agents was an allowable expenditure for the assessment year 1988-89. The Assessing Officer disallowed the claim, stating that the commission payment was a tactic to reduce tax liability and was made to close relations and friends of the partners of the assessee firm. However, the Commissioner of Income-tax (Appeals) allowed a portion of the commission, considering it necessary for procuring business even though there was a lack of documentary evidence. The Tribunal, on further appeal, reversed the Commissioner's decision and allowed the commission paid by the assessee. The Tribunal highlighted that the agents played a crucial role in securing orders from institutions for the assessee firm and ensuring compliance with contract terms between the firm and the supplier, IDPL. The Tribunal noted that the commission payments were made through legitimate channels, such as account payee cheques, to avoid disallowance under section 40A(3) of the Income-tax Act, 1961.

Further, the Tribunal relied on the provisions of Section 37 of the Act and a Supreme Court judgment in Sassion J. David and Co. P. Ltd. v. CIT (1979) to support its decision that the commission expenditure was for the business's purpose. The Tribunal also examined the relationship between the agents and the partners of the assessee firm, concluding that except for one individual, none of the agents were relatives within the Act's definition. The Tribunal disallowed a portion of the commission paid to the one relative under Section 40A(2)(b) of the Act. The High Court, after considering the arguments, held that the issue was primarily a question of fact. It emphasized that the agents' role in securing business for the assessee firm was vital and that the commission payments were justifiable business expenses. The Court cited previous judgments to support its decision, including Commissioner of Income-tax v. Ishwar Prakash & Bros. (1986) and Shazada Nand & Sons v. C.I.T. (1977), where the courts upheld similar commission payments as deductible expenditures. Consequently, the High Court ruled in favor of the assessee, affirming the Tribunal's decision to allow the commission payments as legitimate business expenses.