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2023 (2) TMI 634 - AT - Income TaxAddition on account of commission pay to sole selling agent - commission expenses claimed was disallowed by the AO after making reference to the AY 1992-93 wherein commission to sole selling agent was disallowed - HELD THAT - Since, the dispute for the allowability of commission expenses in the year under consideration was connected to the A.Y. 1992-93 which has been settled in favour of the assessee, therefore, the judgment delivered by the Hon ble Gujarat High Court in the case of the assessee for A.Y. 1992-93 2009 (12) TMI 1052 - ITAT AHMEDABAD will squarely be applicable in the case on hand. The relevant extract of the judgment of Hon ble Gujarat High Court has already been reproduced in the finding of the Ld. CIT(A) somewhere in the preceding paragraph. Accordingly, respectfully following the judgment of Hon ble Gujarat High Court in the case of the assessee, we do not find any reason to interfere in the order of Ld. CIT(A). Hence, the ground of appeal of Revenue is hereby dismissed.
Issues Involved:
1. Reasonable opportunity for the Assessing Officer. 2. Reliance on the decision for the Assessment Year (A.Y.) 1992-93. 3. Deletion of addition on account of commission paid to the sole selling agent. Issue-Wise Detailed Analysis: 1. Reasonable Opportunity for the Assessing Officer: The Revenue contended that the Learned Commissioner of Income Tax (Appeals) [Ld. CIT(A)] erred in law and on facts by not providing a reasonable opportunity to the Assessing Officer (AO) despite categorical directions from the Hon'ble ITAT. The ITAT had specifically instructed that the AO should be given the opportunity to determine the quantum of income and the reason for the disallowance of commission. 2. Reliance on the Decision for the Assessment Year (A.Y.) 1992-93: The Revenue argued that the Ld. CIT(A) erred by relying on the decision in the assessee's own case for A.Y. 1992-93. The ITAT had pointed out that the principle of res judicata is not applicable and that the AO should calculate and determine the quantum of income and the reason for the disallowance of commission. The Ld. CIT(A) did not grant the AO an opportunity to address these issues. 3. Deletion of Addition on Account of Commission Paid to the Sole Selling Agent: The core issue raised by the Revenue was the deletion of the addition made by the AO for Rs. 1,31,65,441/- on account of commission paid to the sole selling agent, M/s L G Doctors & Associates (LGDA). The AO had disallowed the commission payment, treating it as non-genuine, based on the findings of the immediate preceding assessment order for A.Y. 1992-93. Analysis and Judgment: Facts and Background: The assessee, a limited company engaged in the manufacturing/production of maize and other items, had paid a commission of Rs. 1,31,65,441/- to LGDA, its sole selling agent. The AO disallowed this commission payment, following the precedent set in the A.Y. 1992-93, where the commission was treated as non-genuine. CIT(A) Decision: The Ld. CIT(A) deleted the addition made by the AO, observing that the ITAT had restored the case to the CIT(A) specifically for the issue of the commission paid to LGDA. The CIT(A) noted that the issue for A.Y. 1992-93 had been decided in favor of the assessee by the ITAT, and this decision was upheld by the Gujarat High Court. The High Court had dismissed the Revenue's appeals, affirming the Tribunal's finding that the commission paid to LGDA was genuine and allowable. ITAT's Observation: The ITAT noted that the commission expenses claimed by the assessee were disallowed by the AO with reference to A.Y. 1992-93. Since the dispute for the commission expenses in A.Y. 1992-93 was settled in favor of the assessee by the Gujarat High Court, and no SLP was filed before the Supreme Court, the judgment had reached finality. Therefore, the ITAT concluded that the judgment for A.Y. 1992-93 would apply to the current case. Final Judgment: The ITAT upheld the Ld. CIT(A)'s decision, finding no reason to interfere with the order. The appeal filed by the Revenue was dismissed for A.Y. 1993-94. The ITAT applied the same reasoning to the appeals for A.Ys. 1994-95 to 1996-97, dismissing them as well. Conclusion: The appeals filed by the Revenue were dismissed, and the deletion of the addition on account of commission paid to LGDA was upheld. The ITAT's decision was based on the finality of the judgment in favor of the assessee for A.Y. 1992-93 by the Gujarat High Court.
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