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2018 (5) TMI 1724 - AT - Income TaxDisallowance of commission paid for sales - whether the expenses are bogus claim without rendering any service? - Held that - Since the commission paid to Smt. Kavita Agarwal is without any service rendered by her and so it is disallowed - remaining of service and claim of commission to 6 persons is not free from the bogus claim and thus 50% of the commission paid is disallowed - Decided against the assessee. Disallowance of lift maintenance expenses for non deduction of TDS u/s 40a(ia) - provisions of Section 40(a)(ia) of the Act applicability only on payable expenses and not on amount already paid - Held that - Since the said issue of paid or payable U/s 40(a)(ia) of the Act has been finally settled in case of M/s Palam Gas Service vs. CIT 2017 (5) TMI 242 - SUPREME COURT has relied upon by the ld. DR therefore, to that extent, we do not find any error or illegality in the order of the ld. CIT(A). Now before the Tribunal the assessee has raised a fresh plea and placed reliance on various decisions, therefore the issue being purely legal in nature, the same is set aside to the record of the ld. CIT(A) to adjudicate as per the provisions of law - Decided in favour of assessee for statistical purpose.
Issues:
1. Disallowance of commission paid. 2. Disallowance of lift maintenance expenses under Section 40(a)(ia) of the Income Tax Act. Issue 1: Disallowance of Commission Paid: The appeal concerns the disallowance of commission paid by the assessee to various parties. The Assessing Officer (AO) disallowed a portion of the commission paid to six individuals, as they were paid for sales to a single party, M/s Creative Beads, USA. The AO found discrepancies in the nature of services rendered and the relationship between the parties. The Commissioner of Income Tax (Appeals) [CIT(A)] enhanced the disallowance based on the commission rates paid. The assessee contended that the commission should not be disallowed as the services were rendered and relied on legal precedents. The Departmental Representative argued that the claims were bogus and aimed at tax avoidance. The Tribunal found that the commission paid to one individual, without any service rendered, was not allowable. Consequently, the disallowance was upheld, and no interference was made in the CIT(A)'s order. Issue 2: Disallowance of Lift Maintenance Expenses under Section 40(a)(ia): The second issue pertains to the disallowance of lift maintenance expenses under Section 40(a)(ia) of the Income Tax Act. The AO disallowed the expenses as tax was not deducted at source. The CIT(A) upheld the disallowance. The assessee argued that post the amendment by the Finance Act, 2014, the disallowance should be restricted to 30% and claimed a retrospective effect of the amendment. Legal arguments were presented citing relevant case laws. The Departmental Representative contended that the amendment was prospective and relied on the lower authorities' order. The Tribunal noted the settled issue of "paid or payable" under Section 40(a)(ia) and referred the matter back to the CIT(A) for adjudication based on the legal provisions and fresh plea raised by the assessee. In conclusion, the Tribunal partly allowed the appeal for statistical purposes, maintaining the disallowance of commission paid while referring the lift maintenance expenses issue back to the CIT(A) for further consideration.
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