1971 (8) TMI 82 - HC - Income Tax

Whether the sum of Rs. 45, 380 paid to L. Gurandittamal and L. Sahibdiyal employees of the applicant firm is permissible deduction in computing the business income of the applicant - commission paid to the two employees was not a permissible deduction. The question whether actually service was rendered is one of fact. Since there was concurrent finding of the department and the Tribunal that no service was rendered the expenditure is not allowable

Summary

Issues:
- Deductibility of commission paid to employees in computing business income

Analysis:
The case involved the deductibility of a commission paid to employees by a partnership firm in computing its business income. The firm held the selling agency of a company and received overriding commission on sales. The firm paid commission to two employees based on the sales effected out of the overriding commission. The Income-tax Officer disallowed the commission paid to employees as a deduction in computing the firm's total income. The firm appealed to the Appellate Assistant Commissioner and then to the Tribunal, but both upheld the disallowance. The Tribunal emphasized the need for proof of services rendered by the employees to justify the commission payment. It noted that the employees were also partners of the firm, raising concerns about diversion of profits. The Tribunal found no evidence that the increase in turnover was due to the extra efforts of the employees. The Tribunal concluded that the commission payment was not for business purposes and confirmed the disallowance.

The firm contended that it was not necessary to prove extra work by the employees as they were already working for the firm. The firm argued that the commission should be considered a permissible deduction under section 36(1)(ii) of the Income-tax Act, 1961. The firm relied on decisions from the Madras and Gujarat High Courts to support its position. The Madras High Court's decision emphasized the need to consider commercial expediency in determining the reasonableness of commission payments to employees. However, the Tribunal's decision was based on the lack of evidence of services rendered by the employees, not on the reasonableness of the commission amount. The Tribunal's approach was to require proof of services rendered, which the firm failed to provide.

The High Court upheld the Tribunal's decision, stating that the question of whether services were rendered by the employees was a matter of fact. The High Court noted the absence of evidence regarding the nature of work carried out by the employees and emphasized that the burden of proof was on the firm to establish the services rendered. The High Court found that two views were possible regarding the increase in turnover, but since the Tribunal's view was based on factual findings, it was binding. The High Court distinguished the Gujarat High Court's decision cited by the firm, highlighting the lack of similar circumstances in the present case. Ultimately, the High Court agreed with the Tribunal's decision and answered the question in the negative, against the assessee and in favor of the department.