2018 (5) TMI 1156 - AT - Income Tax

Claim of deduction of expenditure incurred on account of commission paid disallowed - allowable busniss expenses - whether assessee company has indulged in colorable device? - Held that - In the present case, we find that the assessee s group concern has won a bid from the Government. After winning the bid, it has gotten the contract transferred under the name of the assessee-company. The assessee company has duly executed the contract with the assistance of the group concerned. In such factual background, sums paid as consideration/commission to the group concern cannot be said to be colorable devise. Hence, we set aside the orders of the authorities below and decide the issue in favour of the assessee.

Issues Involved:
1. Disallowance of the claim of deduction of interest paid on PT, VAT, and Service Tax.
2. Disallowance of the claim of depreciation on motor cars used for business purposes.
3. Disallowance of the claim of deduction of expenditure incurred on account of commission paid to Drishti Adventure Sports Pvt. Ltd.

Issue-wise Detailed Analysis:

1. Disallowance of the claim of deduction of interest paid on PT, VAT, and Service Tax:
The appellant did not press this ground during the appeal. Consequently, this ground was dismissed as not pressed.

2. Disallowance of the claim of depreciation on motor cars used for business purposes:
Similarly, the appellant did not press this ground either. Hence, this ground was also dismissed as not pressed.

3. Disallowance of the claim of deduction of expenditure incurred on account of commission paid to Drishti Adventure Sports Pvt. Ltd.:
- Facts of the Case: During the assessment proceedings, it was noted that the appellant had debited ?53,90,000/- as commission paid to Drishti Adventure Sports Pvt. Ltd., a group concern. The appellant claimed that the commission was for technical expertise and facilitating direct deals with suppliers. The Assessing Officer (AO) found the explanations general and lacking documentary evidence, leading to the disallowance of the claimed commission.
- Assessing Officer's Findings:
- The AO observed that the appellant failed to provide evidence of benefits received or preferential rates due to the influence of Drishti Adventure Sports Pvt. Ltd.
- It was noted that one of the directors, holding significant shares in both companies, could influence purchase deals directly, questioning the necessity of the commission.
- The AO highlighted discrepancies in the appellant's statements regarding the commission rate and the projected sales figures.
- The AO inferred that the commission payment was a tool for tax evasion, as the recipient company had significant unabsorbed losses.
- Based on the Supreme Court's ruling in McDowell & Co. Ltd., the AO concluded that the commission was not a legitimate business expense and disallowed the amount.
- Even if the commission was considered payable, the AO stated that only ?6,46,783/- (2.7% of actual sales) was allowable, disallowing the balance ?47,43,217/- as it pertained to future sales.
- Commissioner of Income Tax (Appeals) Findings:
- The Commissioner upheld the AO's decision, noting the lack of documentary evidence supporting the appellant's claims of business benefits from the commission payment.
- It was emphasized that the commission payment to a group concern with accumulated losses suggested a tax evasion strategy.
- The Commissioner found inconsistencies in the appellant's basis for commission calculation and concluded that the commission payment was not a deductible business expense.
- Appellant's Arguments:
- The appellant argued that the commission was for business considerations, including obtaining preferential rates and benefiting from the expertise of Drishti Adventure Sports Pvt. Ltd.
- The appellant provided a turnover chart showing increased business in subsequent years, asserting that the commission payment was justified.
- It was contended that the reasonableness of expenses should be judged from a businessman's perspective, and the revenue authorities should not dictate business decisions.
- The appellant cited legal precedents supporting the legitimacy of commercial expediency and tax planning within the law.
- Tribunal's Decision:
- The Tribunal noted that the group company had won a bid from the Goa government and transferred the contract to the appellant, which paid a commission of ?53,90,000/-.
- The Tribunal found the AO's argument of a lesser commission amount unsustainable, emphasizing that the AO should not interfere in business decisions.
- It was acknowledged that the group concern provided significant services, including winning the bid and facilitating large purchases, justifying the commission payment.
- The Tribunal rejected the AO's and Commissioner's claims of a colorable device for tax evasion, noting that legitimate tax planning is permissible.
- The Tribunal concluded that the commission payment was a legitimate business expense and allowed the appellant's claim.

Conclusion:
The Tribunal set aside the orders of the lower authorities and allowed the appellant's claim for the commission payment, emphasizing the legitimacy of business decisions and tax planning within the framework of the law. The appeal was allowed in favor of the appellant.

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