1992 (1) TMI 154 - AT - Income Tax

Summary

Issues Involved:

1. Disallowance of commission paid to Dr. B.N. Wahi.
2. Disallowance of commission paid to Shri Diwakar Wahi.
3. Applicability of res judicata in income tax proceedings.

Summary:

1. Disallowance of Commission Paid to Dr. B.N. Wahi:

The primary issue was the disallowance of commission amounting to Rs. 79,232 paid to Dr. B.N. Wahi and his son Shri Diwakar Wahi. The assessee, who runs a business of homeopathic medicines, claimed that Dr. B.N. Wahi was paid commission at 8% of gross sales due to his role as a general attorney and his involvement in the business since 1952. The Income Tax Officer (ITO) disallowed the majority of the commission, allowing only 2%, citing lack of documentary evidence and questioning the necessity and justification of such payments given the sufficient staff employed. The CIT(A) upheld the ITO's decision, deeming the payments excessive and motivated by personal considerations rather than business expediency.

2. Disallowance of Commission Paid to Shri Diwakar Wahi:

The ITO also disallowed a significant portion of the commission paid to Shri Diwakar Wahi, an Apprentice (Management), allowing only 1% and disallowing the rest. The CIT(A) supported this disallowance, noting that the commission paid was not commensurate with the services rendered and was influenced by personal considerations.

3. Applicability of Res Judicata in Income Tax Proceedings:

The CIT(A) and the ITO both emphasized that the principle of res judicata does not apply to income tax proceedings. Therefore, the fact that similar commission payments were allowed in previous years does not bind the authorities to allow them in the current year if the circumstances and justifications differ.

Separate Judgment by Third Member:

The Third Member, while addressing the difference of opinion between the Judicial Member and the Accountant Member, concluded that the commission payments were justified. The Third Member noted that Dr. B.N. Wahi had been managing the business since 1952 under a long-standing oral agreement and was entitled to a commission at 10% of turnover. It was observed that the arrangement did not impose any additional financial burden on the assessee, as the total commission remained the same, merely split between Dr. B.N. Wahi and his son. The Third Member emphasized that the absence of a written agreement did not invalidate the claim, and the past acceptance of such payments should be considered in the absence of new material facts.

The final decision, based on the majority opinion, allowed the full amount of commission paid to Dr. B.N. Wahi and Shri Diwakar Wahi as a deductible expense.