2023 (8) TMI 221 - AT - Income Tax

Revision u/s 263 - allowability of sales promotion incentive which was admittedly not subjected to TDS under section 194H - HELD THAT - To determine whether the sales incentive which is paid by the assessee to its dealers is in the nature of discount or commission , necessarily the agreement between the assessee and its dealers has to be examined. On an query from the Bench during the course of hearing, the learned AR candidly admitted that the agreement between the assessee and its dealers for making the payments of sales incentive was never placed before the AO during the course of assessment proceedings. Mere furnishing of sales ledger, credit note, etc., by itself would not be a determining factor whether the sales incentive would be in the nature of commission or discount . We fail to understand how the AO has allowed the impugned expenditure without examining / verifying the agreement entered into between the assessee (the payer) and its dealers (the payees). Therefore, Assessment Order has been passed without verification, which should have been made, and the PCIT was well within the jurisdiction to have invoked the revisionary powers u/s 263. Appeal filed by the assessee is dismissed.

Summary

Issues involved:
The judgment involves issues related to the order passed under section 263 of the Income Tax Act, applicability of section 194H, addition of deferred tax, and disallowance of service charges relating to club expenses.

Order passed under section 263:
The appeal challenged the order passed under section 263 of the Income Tax Act, alleging that the Principal Commissioner of Income Tax erred in holding the assessment order as erroneous and prejudicial to the revenue. The appellant contended that the assessment order was made after due verification by the Assessing Officer (AO) during the assessment proceedings under section 143(3). However, the PCIT found that the AO failed to make necessary inquiries regarding certain expenditures, leading to the conclusion that the assessment order was erroneous. The PCIT directed the AO to conduct further verification, which the appellant opposed, arguing that the PCIT's order was not in accordance with the law. The Tribunal upheld the PCIT's order, emphasizing that the assessment order was passed without the required verification, justifying the invocation of revisionary powers under section 263.

Applicability of section 194H:
Regarding the applicability of section 194H, the PCIT held that sales incentives paid to dealers were liable for tax deduction at source under section 194H of the Act. The appellant disputed this, arguing that there was no principal-agent relationship, thus rendering section 194H inapplicable. The PCIT also referred to earlier assessment years where similar additions were made under section 40(a)(ia) for non-deduction of tax under section 194H. The Tribunal found that the AO allowed the deduction without proper examination of the nature of sales incentives, leading to the conclusion that the PCIT's direction for further inquiry was justified.

Addition of deferred tax:
The PCIT added back a deduction claimed towards provision for deferred tax, which the appellant contested. The appellant argued that the provision for deferred tax was added back to book profits for tax calculation purposes and any additional addition would result in double taxation. The Tribunal agreed with the appellant, ruling that the proposed addition of the provision for deferred tax was unjustified and should be deleted.

Disallowance of service charges relating to club expenses:
The PCIT proposed to disallow an expenditure relating to service charges paid for club expenses, considering it as personal in nature under section 37 of the Act. The appellant contended that the service charges were allowable as expenditure and satisfied the requirements of section 37. The Tribunal agreed with the appellant, stating that the proposed disallowance was not justified and should be deleted.

Conclusion:
The Tribunal dismissed the appeal filed by the assessee, upholding the PCIT's order under section 263 and the applicability of section 194H. However, the Tribunal ruled in favor of the appellant regarding the addition of deferred tax and disallowance of service charges, directing the deletion of these proposed additions.