2019 (4) TMI 1166 - AT - Income Tax

Disallowance of commission expenditure - allowable revenue expenditure u/s 37 - payment to various customers/registry consultants purchasing the stamp papers - deficiency of not maintaining necessary vouchers and acknowledgement receipts at the end of the assessee for paying commission to the persons purchasing the stamp from him - HELD THAT - On one hand the assessee has placed all financial statements, stamp sale registers showing the claim of commission expenditure along with financial statements, income tax returns, affidavits of various registry consultants and also showing the register entering date wise entry of commission paid as and when the stamps are sold. On the other hand the only allegation made by the Ld. A.O is that the claim of commission is not supported by any documentary evidence. It is true that each and every entry of commission payment the assessee has not provided the details and the same seems to be impractical because the entries of commission payment are multiple times in a day and it is not practically possible to take a receipt from each and every person who may be either a registry consultants or the customer actually using the stamp for himself. However one cannot deny the fact that the person who is coming to purchase the stamp from a stamp vendor is conscious of the fact that the stamp vendors are earning some commission/income from sale of stamp paper. There being multiple stamp vendors, the customer has a liberty/option to purchase stamp paper from the stamp vendor who gives maximum commission or parts with maximum profits embedded in the stamp value. One of the well known business principle is that for increasing the gross revenue the profit margin needs to be reduced and same seems to be the situation of the assessee. Thus out of the total disallowance disallowance of commission to the extent of 25% shall be justified to cover the deficiency of not maintaining necessary vouchers and acknowledgement receipts at the end of the assessee for paying commission to the persons purchasing the stamp from him. We accordingly order so and set aside the finding of both the lower authorities and partly allow assessee s appeal by sustaining disallowance of commission expenditure at ₹ 2,52,572/-. - Decided partly in favour of assessee

Issues Involved:

1. Proper and reasonable opportunity to substantiate expenditure.
2. Defective remand report.
3. Assumption-based additions and directions flouted by AO.
4. Non-appreciation of independent third-party confirmations.
5. Non-exercise of powers under sections 131 and 133(6) of the IT Act.
6. Admission by AO regarding commission payments.
7. Incorrect findings on stamp sales registers.

Issue-wise Detailed Analysis:

1. Proper and reasonable opportunity to substantiate expenditure:
The assessee contended that the respondent did not provide a proper and reasonable opportunity to substantiate the expenditure of ?10,10,287/- as commission/discount paid to customers and registry consultants. The Tribunal noted that the assessee was given opportunities to produce evidence but failed to do so satisfactorily. The Tribunal observed that the assessee's inability to identify the purchasers due to illegible handwriting in the stamp sale register further weakened his claim.

2. Defective remand report:
The assessee argued that the remand report was defective and did not bring new evidence but rather reiterated the assessment order's findings. The Tribunal found that the remand report provided by the AO did not add significant new information and largely repeated the initial assessment's conclusions, failing to support the assessee's claims with substantial evidence.

3. Assumption-based additions and directions flouted by AO:
The assessee claimed that the AO made additions based on assumptions and did not follow CIT(A)’s directions to conduct an independent inquiry from customers. The Tribunal noted that the AO did not conduct the necessary inquiries and relied on the illegibility of the stamp sale register, leading to unsupported assumptions about the commission payments.

4. Non-appreciation of independent third-party confirmations:
The assessee presented affidavits and confirmations from advocates and registry consultants, which the AO disbelieved without cross-verifying. The Tribunal acknowledged these third-party confirmations and noted that while the AO dismissed them without proper verification, the lack of detailed vouchers and receipts from the assessee weakened his position.

5. Non-exercise of powers under sections 131 and 133(6) of the IT Act:
The assessee argued that the respondent did not use powers under sections 131 and 133(6) to summon customers and parties, despite specific requests. The Tribunal agreed that the AO did not utilize these powers, which could have provided clarity on the commission payments.

6. Admission by AO regarding commission payments:
The assessee pointed out that the AO admitted in the assessment order that a portion of the commission payments appeared correct but were allegedly paid to advocates or registry consultants, not customers. The Tribunal found this admission significant but noted that the AO's failure to verify these payments through proper channels left the issue unresolved.

7. Incorrect findings on stamp sales registers:
The assessee contended that the CIT(A)'s findings on the stamp sales registers were incorrect and contrary to law. The Tribunal observed that the CIT(A) dismissed the registers as self-generated evidence with no evidentiary value due to illegible entries, which the assessee admitted were made by him. This undermined the credibility of the registers as reliable evidence.

Conclusion:
The Tribunal, considering the facts and circumstances, partially allowed the assessee's appeal. It justified a 25% disallowance of the commission expenditure, amounting to ?2,52,572/-, due to the deficiency in maintaining necessary vouchers and receipts. The Tribunal set aside the findings of the lower authorities and sustained the partial disallowance, thereby partly allowing the assessee's appeal. The order was pronounced in the open court on 16.04.2019.

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