2019 (1) TMI 888 - HC - Income Tax

Commission paid to foreign agents - allowable business expenses - evidence on record to show that such foreign agent had worked on behalf of the Assessee in procuring sales - Held that - The entire issue is based on an appreciation of evidence on record. The CIT(A) and the Tribunal on facts came to the conclusion that the commission paid to the foreign agents was for having worked on behalf of the Assessee in procuring sales. No question of law arises. Loss claimed by the Assessee upon sale of shares - AO noticed that Assessee had purchased the shares at ₹ 30 Crores but sold the same for an amount as low as ₹ 30 lakhs - Held that - CIT(A) and the Tribunal, found that there was no colourable device employed by Assessee in the process. The Tribunal noted that before sale of shares, the Assessee had obtained the valuation report of an independent valuer, who had shown the value as Nil . The Company concerned was a sick undertaking and was before BIFR. Inter alia on such ground, Tribunal dismissed Revenue s Appeal and confirmed the decision of the CIT(A).

Summary

Issues:
1. Allowance of foreign commission expense without examining earlier years.
2. Treatment of sale of shares as genuine and allowing set off against short term capital gain.

Issue 1: Allowance of Foreign Commission Expense
The appeal raised the question of whether the Tribunal was justified in allowing the foreign commission expense of the assessee based on continuity without considering the examination of expenses in earlier years. The Commissioner of Income Tax (Appeals) and the Tribunal both found evidence on record showing that the foreign agent had worked on behalf of the assessee in procuring sales. The Tribunal observed that the assessing officer disallowed the commission payment due to the lack of evidence regarding the services rendered by the recipients. However, the assessee provided evidence of commission payments, including debit notes and acknowledgment letters, demonstrating that the foreign agents worked on behalf of the assessee in sales procurement. The Tribunal affirmed the decision of the CIT(A) based on the evidence presented, concluding that the foreign agents were indeed involved in procuring sales for the assessee. The issue was deemed factual, with no question of law arising.

Issue 2: Treatment of Sale of Shares
The second question raised in the appeal concerned the treatment of the sale of shares of the holding company as genuine and the allowance of set off against short term capital gains. The assessing officer noted a significant difference between the purchase and sale price of the shares, raising concerns about the transaction's legitimacy. However, the CIT(A) and the Tribunal found no evidence of a colorable device employed by the assessee in the sale process. The Tribunal highlighted that an independent valuer had assessed the shares' value as 'Nil' before the sale, considering the company's status as a sick undertaking before the BIFR. Based on these findings, the Tribunal dismissed the Revenue's appeal and upheld the decision of the CIT(A). The issue was deemed factual, with no legal questions arising.

In conclusion, the High Court dismissed the tax appeal, emphasizing that both issues were factually determined by the CIT(A) and the Tribunal, without any legal grounds for challenge.