2018 (8) TMI 844 - AT - Income Tax

Disallowance of commission expenses paid in excess - CIT (Appeals) confirmed the addition as assessee could not substantiate the commercial exigency of such payment @ 7% as the other parties were paid commission @ 5% - Held that - This is not the first year of the payment of commission to that party. The recipient of the commission income is also not related party under provisions of section 40A(2) of the Act. - The Revenue authorities are only authorized to see whether the expenditure has been laid out or expended by the assessee for the purposes of the business or not. Power to examine the reasonableness and adequacy of expenses - Held that - Such powers are only available when the payment is made to a related party. It is not the case of the Revenue that the party has not rendered services to assessee. Additions to be deleted - Decided in favor of assessee.

Summary

Issues Involved:
1. Disallowance of commission paid to M/s. Ashapura Associates.
2. Applicability of Section 37 of the Income Tax Act.
3. Assessment of commercial exigency and reasonableness of commission rates.
4. Comparison with commissions paid to other agents.
5. Consideration of related party provisions under Section 40A(2).

Detailed Analysis:

1. Disallowance of Commission Paid to M/s. Ashapura Associates:
The assessee, a partnership firm engaged in the manufacturing of auto parts, filed its return of income for the assessment year 2010-11. The Assessing Officer disallowed ?9,31,957/- out of the total commission of ?32,61,849/- paid to M/s. Ashapura Associates at a rate of 7%, citing it as excessive compared to the 5% rate paid to other agents. The disallowance was based on the lack of commercial exigency and the similarity of terms between the agreements with M/s. Ashapura Associates and other agents.

2. Applicability of Section 37 of the Income Tax Act:
The Assessing Officer invoked Section 37, which allows deductions for expenses incurred wholly and exclusively for business purposes. The Officer referenced Supreme Court rulings, emphasizing that the mere existence of an agreement does not bind the Income-tax Officer to accept the expenditure as deductible. The Officer must determine whether the expense was genuinely for business purposes or for extraneous considerations.

3. Assessment of Commercial Exigency and Reasonableness of Commission Rates:
The assessee contended that M/s. Ashapura Associates was paid a higher commission due to its role as the sole selling agent and its significant contribution to sales volume and market development. However, the Assessing Officer noted that similar services were rendered by other agents at lower commission rates. The Officer argued that the assessee had the liberty to terminate the agreement with M/s. Ashapura Associates if the commission rate was deemed excessive.

4. Comparison with Commissions Paid to Other Agents:
The Assessing Officer compared the commission rates and terms of agreements with other agents, such as M/s. Asian Motors, who were paid at 3% under similar terms. The Officer concluded that the 7% commission paid to M/s. Ashapura Associates was excessive by 2%, leading to the disallowance of ?9,31,957/-.

5. Consideration of Related Party Provisions under Section 40A(2):
The assessee argued that M/s. Ashapura Associates was not a related party under Section 40A(2), which restricts excessive payments to related parties. The Tribunal agreed, stating that such powers to disallow expenses as excessive are typically exercised when payments are made to related parties. The Tribunal emphasized that the Revenue authorities should focus on whether the expenditure was incurred for business purposes, not on the manner in which the business is conducted.

Conclusion:
The Tribunal reversed the findings of the lower authorities, noting that the disallowance was made without sufficient justification. The Tribunal highlighted that the Revenue failed to prove that the commission was not for business purposes. Consequently, the disallowance of ?9,31,957/- was deleted, and the appeal filed by the assessee was allowed. The order was pronounced on 9th August 2018.