2017 (6) TMI 581 - AT - Income Tax

Disallowance of 1% of turnover - Held that - The facts of AY 2007-08 and year in question are clearly distinguishable. The assessee, except summarily relying on ITAT judgment dated 21.06.2013, could not dislodge the factual observations of ld. AO and CIT(A). In considered view, the interest of justice will be served if the disallowance retained by the ld. CIT(A) is further reduced to by 50%. Accordingly, the assessee s appeal is partly allowed

Summary

Issues:
1. Disallowance of commission on presumptions.
2. Comparison of facts between AY 2007-08 and AY 2009-10.
3. Assessment of reasonable commission percentage.
4. Application of ITAT judgment from AY 2007-08 to the current case.

Issue 1: The judgment addresses the disallowance of commission amounting to ?9,66,828/- based on presumptions, ignoring the ITAT decision from AY 2007-08 where the brokerage ranged from 2% to 4%. The Assessing Officer proposed the disallowance after issuing summons to brokers, some of whom confirmed receiving 3% commission, while one broker claimed 1% commission and another denied any business dealings with the assessee. The Assessing Officer cited lack of verification and comparable cases to justify the disallowance, leading to penalty proceedings under section 271(1)(c) of the Act. The CIT(A) partially allowed the commission to 2% due to the nature of evidence and the existence of brokers working for other parties as well, reducing the disallowance to ?9,66,828/-.

Issue 2: The comparison of facts between AY 2007-08 and AY 2009-10 was crucial in determining the reasonable commission percentage for the current case. The assessee contended that the facts were similar to AY 2007-08, where ITAT had dismissed the Revenue's appeal, emphasizing the responsibility of Bombay Brokers as "del credere" agents. However, the Departmental Representative argued that the facts of the two assessment years were distinguishable, with the Assessing Officer highlighting the limited sources of goods procurement and citing comparable cases with lower brokerage percentages.

Issue 3: The assessment of a reasonable commission percentage was a key point of contention. The Assessing Officer and CIT(A) initially restricted the commission to 1% based on verification issues and lack of comparable instances. However, the CIT(A) increased the allowed commission to 2% considering the range of commission paid and the brokers' multiple engagements, leading to a reduction in the disallowance amount.

Issue 4: The application of the ITAT judgment from AY 2007-08 to the current case was debated. While the assessee relied on the previous judgment to support their appeal, the Tribunal found the facts of the two assessment years to be distinct. The Tribunal concluded that the factual observations of the Assessing Officer and CIT(A) remained unchallenged by the assessee, leading to a partial allowance of the appeal by further reducing the disallowance by 50%.

In conclusion, the judgment carefully analyzed the issues surrounding the disallowance of commission, the comparison of facts between different assessment years, the determination of a reasonable commission percentage, and the application of previous judgments to the current case, ultimately resulting in a partial allowance of the assessee's appeal.