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2018 (4) TMI 315 - AT - Income TaxAddition u/s 40A(2)(b) - assessee made payments of commission to his two sons - disallowance of entire expenditure as excessive and unreasonable - Held that - AO is under obligation to bring comparable cases or gather data from the open market, if any. We find the Assessing Officer failed to discharge his onus in this regard. From that point of view, addition made by the Assessing Officer is premature. Under these provisions, the 100% of the payments cannot be considered as excessive or unreasonable. Coming to the applicability of the provisions of section 40A(ia), we are of the opinion that there was no conclusive findings of the Authorities below in this regard. Therefore, in our view, the Assessing Officer did not apply his mind to make out the applicability of provisions of section 40A(ia) of the Act properly. - Decided in favour of assessee.
Issues:
- Disallowance of commission payment under section 40A(2)(b) of the Act - Rejection of alternative submission based on the amendment to 2nd proviso to S. 40(a)(i-a) - Justification of commission payment to recipients - Applicability of section 40A(2)(b) and section 40A(ia) of the Act Analysis: Issue 1: Disallowance of commission payment under section 40A(2)(b) of the Act The assessee contested the addition of commission payment made to two sons for business purposes. The AO disallowed the payment, stating the sons did not provide services justifying the commission. The AO concluded the appellant failed to justify the payment, and no TDS was made on the commission. The CIT(A) dismissed the appeal, noting the sons did not file returns, and the amended provisions were not applicable. The ITAT found the AO failed to establish the excessiveness or unreasonableness of the payments and did not gather market data. The ITAT held the addition was premature and allowed the appeal. Issue 2: Rejection of alternative submission based on the amendment to 2nd proviso to S. 40(a)(i-a) The assessee argued for the retrospective application of the amendment to the 2nd proviso to S. 40(a)(i-a) from 2005-06 onwards. The CIT(A) rejected this, stating the provisions did not apply as the sons did not file returns. The ITAT found no conclusive findings on the applicability of the provisions and deemed the AO did not properly consider this aspect, allowing the appeal. Issue 3: Justification of commission payment to recipients The assessee claimed the payments were genuine for services rendered by his sons. The CIT(A) upheld the disallowance due to lack of TDS and non-filing of returns by the sons. The ITAT found the AO failed to gather market data to prove excessiveness, leading to a premature addition, allowing the appeal. Issue 4: Applicability of section 40A(2)(b) and section 40A(ia) of the Act The ITAT noted the genuineness of the commission payments but questioned the excessiveness and unreasonableness. The AO's failure to gather market data rendered the addition premature. The ITAT found no conclusive decision on the applicability of section 40A(ia) and allowed the appeal based on lack of proper assessment by the AO. In conclusion, the ITAT allowed the appeal, highlighting the AO's failure to establish excessiveness or unreasonableness of commission payments and inadequate consideration of the amended provisions and market data, leading to a premature addition.
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