2016 (12) TMI 114 - AT - Income Tax

Disallowance of Commission paid in respect of exports to Iraq - Held that - It is not Revenue s case that no services have been rendered to the assessee by the agent. Further, nothing has been brought on record by Revenue to show that the transactions relating to the payment of commission by the assessee are either non genuine or are excessive or unreasonable. The Volcker Committee Report, cited by Revenue, had discussed about the utilization of money by the recipient of the commission in paying of such commission so received to the Government of Iraq illicitly, which was objected to by the Volcker Committee. From a casual perusal of the details on record and in the orders of the authorities below it has not been proved that the assessee company was involved in illicit payments of commission to the Iraqi Government. Therefore it cannot be concluded that commission payments were not made for the purpose of assessee s business. Explanation to section 37 of the Act cannot be invoked merely on the basis of an unestablished doubt that expenditure incurred could be for infraction of law. - Decided in favour of assessee

Summary

Issues Involved:
- Disallowance of commission paid in respect of exports to Iraq
- Validity of reopening of assessment under section 148

Disallowance of Commission Paid in Respect of Exports to Iraq:

In the case, the assessee, a company engaged in trading electrical goods and appliances, challenged disallowance of commission paid for exports to Iraq for A.Y. 2003-04 and 2005-06. The AO held the commission payments were illegal payments to the Iraqi Government. However, the Tribunal analyzed the payments made to the agent for various services rendered, finding no evidence of illegality or excessiveness. Referring to the Volcker Committee Report, it was noted that the payments were for legitimate services provided. Citing precedents and legal provisions, the Tribunal concluded that the commission payments were made for business purposes and not for illegal activities. The Tribunal relied on decisions of the Hon'ble Calcutta High Court and other Coordinate Benches to support its findings. Ultimately, the Tribunal allowed the appeals for both assessment years, overturning the disallowance of commission payments.

Validity of Reopening of Assessment under Section 148:

The assessee challenged the validity of reassessment proceedings under sections 147/148 for A.Y. 2003-04. However, since the Tribunal had already addressed and decided in favor of the assessee on the disallowance of commission payments, it deemed the challenge to the reopening of assessment as academic. Therefore, the Tribunal did not delve into this technical issue separately, as the primary issue had been resolved in favor of the assessee. Consequently, the appeals for both assessment years were allowed based on the findings related to the disallowance of commission payments.

In conclusion, the Tribunal's judgment in the case addressed the disallowance of commission payments made for exports to Iraq and the validity of reopening the assessment. The Tribunal found in favor of the assessee, overturning the disallowance based on the nature of services rendered and the absence of evidence of illegality in the payments. The challenge to the reopening of assessment was not separately considered as the primary issue was resolved in favor of the assessee.