2017 (8) TMI 857 - HC - Income Tax

Allowable business expenditure - kickback payment or commission payment - kickbacks demanded by Iraq Government and under this method certain levies were imposed - Held that - The sum and substance of the lengthy discussion in the Tribunal s order is that even if what is alleged by the Assessing Officer and relying upon the report is taken as true and correct, still, the participation of the assessee was not established and proved. The assessee was not found to have made any kickbacks or payment of that nature which reached the Iraq Government and through the channels indicated in the Volcker Committee Report. There was no material of this nature in possession of the Assessing Officer against the assessee. It is in these circumstances that the Tribunal concluded, and essentially in the peculiar facts of the case of the assessee, that the assessee has not incurred any expenditure for any purpose which is an offence or which is prohibited by law. The essential ingredients of explanation below Sub-Section 1 of Section 37, therefore, were not attracted to the Assessee s payment made to M/s. Galala & Company in Jordon. This is a finding of fact and based on the material placed before the Tribunal. We do not think that the Tribunal committed any error of law apparent on the face on record in reversing the view of the Assessing Officer and the order of the first Appellate Authority confirming it. We have carefully perused the appeal paper book with the assistance of Shri. Pinto and we do not think that the present Appeals of the Revenue raise any substantial questions of law.

Summary

Issues:
1. Reopening of assessment under Section 148 of the Income Tax Act, 1961 based on Volcker Committee Report.
2. Disallowance of commission payment made to a Jordan based company under Section 37(1) of the Income Tax Act.

Analysis:
1. The High Court of Bombay heard appeals challenging the order passed by the Income Tax Appellate Tribunal regarding eight appeals for different Assessment Years. The Tribunal found that these appeals raised identical issues and passed a Common Order. The lead case pertained to Assessment Year 2000-2001, where the original assessment was completed on 30th November 2002. The Assessing Officer reopened the assessment based on the Volcker Committee Report, which detailed kickbacks demanded by the Iraq Government under the Oil for Food program. The Tribunal examined the grounds raised by the Revenue and the Assessee, ultimately concluding that the Assessee did not participate in any illicit payments and did not violate any laws. The Tribunal found no evidence to support the Revenue's claims, leading to the dismissal of the Revenue's appeals.

2. The specific issue involved the disallowance of commission payment made to a Jordan based company under Section 37(1) of the Income Tax Act. The Tribunal examined the details of the commission payments made by the Assessee to the Jordan based company for looking after its commercial interests in Iraq. The Assessing Officer initiated reassessment proceedings based on the Volcker Committee Report, alleging that the payments were made with illicit intentions. However, the Tribunal found that the Assessee did not violate any laws or engage in any prohibited activities. The Tribunal concluded that the Assessee's payments were not covered by the explanation to Section 37(1) of the Income Tax Act, as there was no evidence of any offense or prohibited activity. The Tribunal's decision was based on a factual analysis, and it did not find any legal errors in the Assessee's actions, leading to the dismissal of the Revenue's appeals.

In conclusion, the High Court of Bombay upheld the Tribunal's decision, emphasizing that the Assessee did not engage in any illegal activities or violate any laws. The Court highlighted the importance of factual findings and noted that the Tribunal's decision was based on the material presented, without any error of law. The Court dismissed the Revenue's appeals without any order as to costs and provided a pertinent observation from the Honorable Supreme Court regarding the distinction between law and morality in legislative decisions.