2019 (7) TMI 416 - HC - Income Tax

Dis-allowance of the commission paid to non-resident foreign agents - under invoicing - Non disclosure of Commission to the agent paid at the time of import - The DRI found that customs duty was paid on such net amount remitted to the Assessee; the FOB value disclosed, on which customs duty was paid, did not include the commission paid to the foreign agents. - HELD THAT - In the present case, there is no question of the Assessee claiming any deduction by filing of a revised return. It is the case of the Revenue that the Assessee had not disclosed the expenditure incurred by a foreign agent on its behalf. What the Assessee received from its foreign buyers was the net FOB value; the Assessee was not claiming any expenditure on account of commission paid. There is, thus, no question of any revised return. There is no tax effect whatsoever by reason of the expenditure made by foreign buyers by way of commission paid outside India. There is no substantial question of law arising for consideration of this Court in the present appeal. The appeal is, accordingly, dismissed.

Summary

Issues:
1. Disallowance of commission paid to foreign agents for under-invoicing.
2. Claiming deduction/expenditure without filing a revised return.

Issue 1: Disallowance of commission paid to foreign agents for under-invoicing
The High Court dealt with a Tax Appeal challenging an order by the Income Tax Appellate Tribunal regarding income tax returns filed by the Assessee for Assessment Year 2012-13. The controversy arose from a DRI inquiry revealing that the Assessee was evading export customs duty by undervaluing iron ore shipments and appointing non-resident foreign agents for direct payment by foreign importers. The Department disallowed a commission amount paid to the agents due to under-invoicing. The CIT (Appeals) later deleted this addition, stating that the agents' income was not assessable in India. The ITAT upheld this decision, emphasizing that the commission payment did not impact the Assessee's income liability in India, as it was a transaction between foreign agents and exporters.

Issue 2: Claiming deduction/expenditure without filing a revised return
The Department contended that any deduction/expenditure not claimed in the return of income cannot be claimed before the Assessing Officer without filing a revised return, citing the case of Goetze (India) Ltd. v. Commissioner of Income Tax. In response, the High Court clarified that in the present case, the Assessee did not claim any deduction through a revised return. The Revenue argued that the Assessee did not disclose the expenditure incurred by a foreign agent, but the Assessee received the net FOB value without claiming any expenditure on commission paid. Therefore, there was no need for a revised return, and no tax effect resulted from the commission paid by foreign buyers outside India. Consequently, the Court dismissed the appeal, stating that no substantial question of law arose. Additionally, other questions raised by the Department were not considered due to the tax effect being below a specified threshold.