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2016 (7) TMI 672 - AT - Income TaxCommission expenditure - deduction u/s.37(1) - whether services were provided or not - Held that - In the absence of any evidence to show that services were in fact rendered by the persons to whom the Assessee paid commission, all these considerations fade into insignificance. The CIT(A) has proceeded under the assumption that it is the revenue that has to prove that services were in fact not rendered by the person to whom commission was paid. This approach is legally not correct. When the primarily evidence of nature of services rendered for which Assessee paid commission is not on record, it is not possible to say whether the expenditure was wholly and exclusively incurred for the purpose of business and also as to whether explanation to Sec.37(1) of the Act would be attracted. For the reasons given above, we reverse the order of the CIT(A) and restore the order of the AO. In the result, appeal by the Revenue is allowed.
Issues Involved:
1. Delay in filing the appeal by the Revenue. 2. Deletion of the addition of ?2,35,97,622/- made by the AO. 3. Validity of the commission paid to sub-agents. 4. Evidence of services rendered by the sub-agents. Issue 1: Delay in Filing the Appeal by the Revenue The Revenue filed the appeal with a delay of about 4 days, explained as due to the inability to trace the assessment records. The Tribunal considered the reasons given in the affidavit and was satisfied that the delay was due to reasonable and sufficient cause. Consequently, the delay in filing the appeal was condoned. Issue 2: Deletion of the Addition of ?2,35,97,622/- Made by the AO The Revenue appealed against the order of the CIT(A) which deleted the addition made by the AO. The AO had disallowed the deduction claimed by the Assessee for liaison and consultancy charges paid to sub-agents, amounting to ?2,35,97,622/-. The CIT(A) reversed this decision, allowing the deduction. Issue 3: Validity of the Commission Paid to Sub-Agents The Assessee, a company providing Cable TV services, received ?2,52,44,351/- as liaison and consultancy charges from WWIL. The Assessee claimed to have outsourced this liaison work to five sub-agents and paid them a total of ?2,35,97,622/-. The AO questioned the expertise of these sub-agents, particularly C.P. Rerollers Ltd. and BMA Stainless Ltd., which were in the steel business, and doubted their capability to render liaison services for marketing television programs. The AO issued notices under Section 133(6) and summons under Section 131 of the Act to gather more information but found the responses unsatisfactory. Issue 4: Evidence of Services Rendered by the Sub-Agents The AO found that the sub-agents failed to provide adequate evidence of the services rendered. For instance, C.P. Rerollers Ltd. and BMA Stainless Ltd. could not identify the employees who performed the liaison work. Moreover, broadcasters confirmed that they negotiated directly with a representative from WWIL, not with the sub-agents. Based on these findings, the AO concluded that the commission payments were bogus and sham, and disallowed the expenditure. CIT(A)'s Findings: The CIT(A) disagreed with the AO, stating that: - The Assessee lacked the marketing setup to perform the liaison work itself and had outsourced it to sub-agents. - The sub-agents were appointed with the knowledge and permission of WWIL. - The AO did not provide proper opportunities for the Assessee to present its case. - The AO's conclusions were based on misconceived reasoning. - WWIL had directly appointed BMA Stainless Ltd. as its liaison agent in subsequent periods, indicating their capability. - The transactions were conducted through proper banking channels, with TDS duly deducted. Tribunal's Decision: The Tribunal found that the Assessee failed to provide evidence that the sub-agents rendered any services. The Tribunal noted that the CIT(A)'s reasons were irrelevant and unsustainable. The burden was on the Assessee to prove that services were rendered, which it failed to do. Consequently, the Tribunal reversed the order of the CIT(A) and restored the AO's order, disallowing the expenditure of ?2,35,97,622/-. Conclusion: The Tribunal allowed the Revenue's appeal, disallowing the commission payments claimed by the Assessee due to a lack of evidence that services were rendered by the sub-agents.
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