2016 (9) TMI 112 - HC - Income Tax

Allowability of expenditure - business expenditure of payment of commission to its agents of marketing and related services - Held that - It is not in dispute, pursuant to notice issued by the Assessing Officer, both the agents confirmed in writing that they had rendered services to the assessee. The assessee has, before making payment, deducted tax at source. The Consolidated Construction Co. Agencies Pvt. Ltd. in its letter dated 15th February, 2006 addressed to the Assistant Commissioner of Income Tax has confirmed that they were appointed marketing agent of the assessee. They have also disclosed extract of their books of account in order to show the dealings and transactions between the assessee and the aforesaid agent. They have also disclosed their PAN card number. By their letter dated 20th March, 2006 they once again wrote to the Assistant Commissioner of Income Tax furnishing various information including that the amount of commission earned by them had been indicated in their books of account and had also been offered for taxation and assessment was made which was also disclosed by them. The other agent namely, SPS Metal Cast and Alloys Ltd. by its letter dated 22nd March, 2006 furnished to the Assistant Commissioner of Income Tax, a copy of the extract of the ledger from its books of account disclosing the dealings and transactions between the assessee and the aforesaid agent and the copies of their balance sheet for the relevant period together with their PAN card number. From the evidence disclosed by the assessee we are inclined to think that the assessee had adduced such proof as it was in its power to prove - Decided in favour of assessee.

Issues Involved:
1. Lawful rejection of relevant and material evidence by the Tribunal.
2. Disallowance of legitimate business expenditure on commission payments.
3. Establishment of services rendered by agents.
4. Perceived perversity in the Tribunal's decision.

Detailed Analysis:

1. Lawful Rejection of Relevant and Material Evidence by the Tribunal:
The primary issue in the appeal was whether the Tribunal lawfully rejected relevant and material evidence to uphold the disallowance of the assessee's business expenditure on commission payments. The Tribunal had dismissed the appeal by the assessee concerning the disallowance of commission payments to its agents for marketing and related services.

2. Disallowance of Legitimate Business Expenditure on Commission Payments:
The assessee had debited a sum of ?4,99,06,789/- as commission in the profit and loss account. Out of this, ?1,15,12,259/- paid to M/s. Consolidated Construction Co. (Agencies) Pvt. Ltd. and ?74,40,000/- paid to M/s. SPS Metal Cast & Alloys Ltd. were disallowed. The reasons for disallowance included:
- Lack of evidence of services rendered by the agents.
- Government undertakings directly purchasing goods from the seller without any intermediary.
- The role of a middleman being deemed inapplicable.
- Mere payment and TDS deduction not proving the genuineness of the commission transaction.

The CIT(A) and the Tribunal concurred with the assessing officer's views, holding that the nature of services rendered by the recipient companies was not established by the assessee.

3. Establishment of Services Rendered by Agents:
The Tribunal reviewed the documentary evidence provided by the assessee, which included various correspondences and accounts with the agents. Despite this, the Tribunal concluded that no independent evidence was provided to show that the agents rendered services as per the agreements. The Tribunal noted that the Principal Officers of the agents did not provide sufficient evidence or appear before the AO, leading to the disallowance of the commission payments.

4. Perceived Perversity in the Tribunal's Decision:
The assessee argued that the Tribunal's decision was perverse, as the evidence provided was sufficient, and the revenue did not contradict the evidence or prove that the payments were collusive. The Tribunal's inference was deemed contrary to common sense and business expediency. The High Court noted that the Tribunal dismissed the documentary evidence as mere correspondences and was influenced by an incorrect presumption that the customers were government undertakings purchasing directly from the seller.

The High Court emphasized that the agents had confirmed in writing that they rendered services, and the assessee had deducted tax at source. The agents provided their PAN numbers and disclosed their dealings and transactions with the assessee in their books of account. The High Court found that the revenue did not contradict these facts, suggesting they were factually undeniable.

The High Court referred to legal principles and previous judgments, emphasizing that the Tribunal's view was perverse and contrary to common sense. The Tribunal's findings were based on suspicions and improper rejection of material evidence. The reasonableness of the expenditure should be judged from the businessman's perspective, not the revenue's.

Conclusion:
The High Court concluded that the Tribunal's judgment was perverse and could not be sustained. The question of lawful rejection of evidence was answered in the affirmative, and the disallowance of commission payments was deemed unjustified. The appeal was allowed in favor of the assessee, with the original question answered in the negative.

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