2016 (9) TMI 847 - AT - Income Tax

Disallowance of expenditure - payment of Agency Commission to sister concern - whether excessive or unreasonable - Held that - As decided in assessee s own case and in the case of the assessee s sister concern there is no dispute about the fact that the assessee availed the services of the foreign agent in respect of exports effected by it, as was apparent from the GRs. This fact was also approved by the RBI. Despite the payment of commission at l0% to a person, who is unrelated to the assessee, the gross profit as well as the net profit of the assessee saw substantial increase in terms of amount as well as percentage. The fact that the assessee did pay commission to its foreign agent has been acknowledged by the AO as is apparent from his decision in restricting the deduction to 2.88% of the turnover. Once the commission is accepted to have been paid, there is no logic in disallowing such expenditure by holding that it was excessive. It is for the assessee to determine the way in which it has to carry on its business. The assessee has to decide the percentage of commission which is to be allowed by him considering all the attending circumstances and the business exigencies. In our considered opinion, the ld. CIT(A) was justified in deleting this addition - Decided in favour of assessee

Summary

Issues involved:
Appeal against CIT(A) orders for A.Y. 2008-09, 2009-10 & 2010-11 - Addition of agency commission - Whether commission expenses genuine - Application of principle of res-judicata in tax proceedings.

Analysis:
1. Issue of Agency Commission Addition (ITA 3021/Mum/2012 for A.Y. 2008-09):
The assessee contested the addition of ?85,72,459 as agency commission by the AO. The AO disallowed the commission as not genuine, stating it was outstanding and not paid for years, emphasizing that commission is only allowable when agent services are proven. The CIT(A) upheld the AO's decision. The AR relied on Tribunal's earlier orders in the assessee's case and a sister concern's case, arguing for the allowance of commission based on past practice and relationship with the agent. The Tribunal, following precedent, held that commission paid to the agent is an allowable expenditure. Citing the sister concern's case, the Tribunal directed the AO to delete the addition, considering the identical facts and circumstances.

2. Application of Principle of Res-Judicata:
The Tribunal applied the principle of res-judicata in tax proceedings, emphasizing the importance of consistency in tax jurisprudence. Referring to past decisions, the Tribunal highlighted that the AO should not disturb earlier assessment orders if facts remain consistent in subsequent years. The Tribunal stressed that in the absence of a written agreement, tax liability cannot be imposed solely based on that, especially when payments were regular and approved by authorities. The Tribunal underscored that the presence of surrounding circumstances and basic facts, not just a written agreement, should decide the allowability of commission payments.

3. Appeals (ITA Nos. 6481/Mum/2012 & 6747/Mum/2013):
The Tribunal applied its decision in ITA 3021/Mum/2012 AY 2008-09 to these appeals, deleting the additions of agency commission as made by the AO and sustained by the CIT(A) in all years. By following the precedent set in the earlier case, the Tribunal allowed the appeals of the assessee, emphasizing consistency in decision-making based on similar facts and circumstances.

In conclusion, the Tribunal allowed the appeals, directing the deletion of the agency commission addition based on the established practice, relationship with the agent, and the principle of consistency in tax jurisprudence, emphasizing the importance of considering surrounding circumstances beyond just the presence of a written agreement.