2018 (1) TMI 748 - HC - Income Tax

Disallowance of commission payments - expenditure wholly and exclusivily for busniss - Held that - Addition are based entirely on suspicion. The assessee is a private party; it sources goods and commodities and trades in them in various countries in Africa. To secure contracts and also to ensure that payments are received in a timely manner and repatriated expeditiously, it utilizes the services of local agents in each country. From the angle of the Indian economy, the assessee s efforts lead to export transactions, which in turn augment the foreign exchange resources; the assessee reports income, which is subjected to taxation. The commission expenditure laid out, therefore, can reasonably be linked with its business; its claim that it is laid out wholly for commercial terms is not fantastic; neither are the parties paid the amounts, bogus or dubious. In fact, they even confirmed receiving payments. By disallowing this expenditure, based on the AO s personal understanding of how business ought to be conducted, the purpose of Section 37 was set at naught; besides, the AO virtually positioned himself in the armchair of the assessee, as regards the business conducted by it- an entirely untenable situation, that the law frowns upon. For these reasons, the court is of opinion that the concurrent findings of fact rendered by the lower appellate authorities do not call for disturbance. As in the case of commission expenditure, the AO s conclusion that the sources of income towards deposits made were not disclosed or sufficiently proved, were correctly set aside by the lower authorities - Decided in favour of assessee.

Summary

Issues:
1. Challenge to findings by Income Tax Appellate Tribunal (ITAT) on deletion of amounts brought to tax by disallowance of expenditure claimed by the assessee.
2. Disallowance of commission expenditure and addition of unexplained deposits by Assessing Officer (AO).
3. Additional evidence allowed by Commissioner of Income Tax (Appeals) (CIT(A)) and findings on commission payments.
4. Merits of addition of commission expenditure and unexplained deposits by CIT(A).
5. ITAT's affirmation of CIT(A)'s findings on commission payments and deposits.
6. Revenue's arguments on sustainability of findings in the impugned order.
7. Court's analysis and conclusion on the additions made by the AO.

Analysis:

1. The revenue challenged the ITAT's findings on deletion of amounts brought to tax by disallowance of expenditure claimed by the assessee, arguing the findings were unreasonable and contrary to fact. The ITAT affirmed the CIT(A)'s decision to permit additional evidence and found a communication gap between the AO and the assessee regarding commission payment details below a certain threshold.

2. The AO disallowed commission expenditure and added unexplained deposits to the assessee's total income. The CIT(A) allowed the assessee's request to adduce additional evidence and held that the AO failed to appreciate the situation in which commission payments were made. The CIT(A) found no correlation between the amounts withdrawn and the cash deposits, leading to the deletion of the addition of unexplained deposits.

3. The CIT(A) allowed additional evidence on commission payments, emphasizing the conditions under which payments were made to commission agents. The CIT(A) disagreed with the AO's observation on lack of details of services rendered by commission agents and found the Volcker Committee Report irrelevant to the assessment year under consideration.

4. The CIT(A) held that the commission expenditure was allowable based on the mercantile system of accounting and the stringent conditions laid down by the Reserve Bank of India for commission payments. The AO's findings on lack of specific services rendered by commission agents were deemed devoid of merit by the CIT(A).

5. The ITAT affirmed the CIT(A)'s findings on commission payments and deposits, noting the meager percentage of commission paid compared to the total value of contracts entered into by the assessee. The ITAT concluded that the additions made by the AO were not justified based on the material on record.

6. The revenue argued that the findings in the impugned order were unsustainable, highlighting the lack of proof of payment and correlation to the nature of services provided by the commission. The revenue contended that the ITAT erred in its conclusion regarding the cash deposits made by the assessee.

7. The court held that the additions made by the AO on commission expenditure and deposits were based on suspicion and lacked sufficient evidence. The court reasoned that the commission expenditure was linked to the assessee's business activities and that the lower appellate authorities' findings did not warrant disturbance. The court dismissed the appeal, concluding that no question of law arose.