2018 (4) TMI 737 - AT - Income Tax

Claim of expenditure u/s 37 - commission expenditure - Held that - We are of the opinion that the assessee paid commission to Shri Laxminiwas V. Agrawal, Director of the company and the same has the support of the Board s Resolution. In our view this part of the claim is allowable subject to the documentation relating to the filing of computation of income of Shri Laxminiwas V. Agrawal and the applicable higher tax rates. See CIT Vs. Indo-Saudi Services (Travel) Pvt. Ltd.(2008 (8) TMI 208 - BOMBAY HIGH COURT ). Regarding the commission payments made to the commission agents, i.e. Shri Ramesh Chandak (HUF) and Shri Ravindra Agrawal (HUF), we find these payments are made to these parties for the first time and the deduction is claimed u/s.37 of the Act. Therefore, there is need for discharge of onus by the assessee with reference to the nature of services rendered by them to the company. Therefore, for want of discharge of onus by the assessee, we find this portion of the issue needs to be remanded to the file of the AO. Assessee shall be granted reasonable opportunity of being heard to the assessee in accordance with the set principles of natural justice. - Appeal of the assessee is allowed for statistical purposes.

Summary

Issues:
Correctness of disallowance of commission paid to Shri Laxminiwas V. Agrawal, Director of the company, and to Shri Ramesh Chandak (HUF) and Shri Ravindra Agrawal (HUF), the commission agents.

Detailed Analysis:

1. Background and Assessment Order:
The appellant, engaged in land investment and sales, challenged the disallowance of commissions paid to Shri Laxminiwas V. Agrawal and the two commission agents. The CIT invoked Section 263 due to commission payment issues, leading to a fresh assessment under Section 143(3) r.w.s 263. The AO disallowed the commission, and the CIT(A) upheld it.

2. Commission Payment to Shri Laxminiwas V. Agrawal:
The appellant claimed &8377;15,11,800 as an allowable expenditure paid to Shri Laxminiwas V. Agrawal, a director, citing a board resolution. However, no evidence of services rendered by him was provided, leading to disallowance. The CIT(A) reasoned the lack of proof of services and upheld the disallowance.

3. Commission Payments to Commission Agents:
Regarding commissions to Shri Ramesh Chandak (HUF) and Shri Ravindra Agrawal (HUF), the appellant failed to prove services rendered by them. The AO disallowed these commissions, as the nature of services was unspecified. The CIT(A) rejected the deduction under Section 37 due to lack of evidence.

4. Appellate Tribunal Decision:
The appellant did not improve their case before the CIT(A), leading to the appeal's dismissal. During the hearing, the appellant did not present a case, and the tribunal, aided by the Revenue's representative, analyzed the case based on available records.

5. Tribunal's Decision and Remand:
The tribunal allowed the claim for commission paid to Shri Laxminiwas V. Agrawal, directing documentation of his income computation and tax rates. However, the tribunal remanded the issue of commission payments to the commission agents to the AO for further investigation, emphasizing the need for evidence of services rendered.

6. Conclusion:
The tribunal allowed the appeal for statistical purposes, directing a fresh adjudication by the AO on the commission payments to the commission agents. The decision highlighted the importance of providing evidence of services rendered to support commission claims, ensuring compliance with natural justice principles.

In summary, the tribunal upheld the commission payment to the director but remanded the issue of commission payments to the commission agents for further investigation, emphasizing the need for evidence of services rendered to support the claims.