2012 (5) TMI 286 - HC - Income Tax

Business expenditure - payment of commission - payment to relatives - Provisions of Section 40A(2)(b) of the Act. - held that - Assessment Officer has examined various statements of the brokerage which were furnished by the assessee before him and in the case of investors, the assessee has net shown any payment of brokerage to the investor concerned and it has only shown payment of brokerage to his family members. It has been found by the Assessment Officer that it has been done to divert his income to his family members which would have otherwise become taxable in his own hands. Shri Uttam Chand Jain and Smt. Sunita Jain were having huge brought forward loss. The income was also diverted as against the huge loss. Provisions of Section 40A(2)(b) of the Act has been attracted. - Addition upheld - Decided against the assessee.

Summary

Issues:
Challenge to addition of commission paid to family members as business expenditure under Income Tax Act.

Analysis:
The appellant challenged an order passed by the Income Tax Appellate Tribunal, affirming the addition of Rs. 16,47,512 made by the Assessment Officer. The issue revolved around the payment of commission to the appellant's son and daughter-in-law, contending it was a legitimate business expenditure. The appellant argued that the payments to family members were for brokerage, supported by documents on record. However, the Tribunal, Commissioner of Income Tax, and Assessment Officer considered these payments as diversion of income to family members, thereby disallowing the claimed expenditure.

Upon review, the High Court found that the payments to family members were not categorized as brokerage but as payments made to relatives. The Tribunal observed that the appellant diverted income to family members to offset their brought forward losses, invoking Section 40A(2)(b) of the Income Tax Act. The Court cited specific provisions and the absence of evidence showing a practice of passing brokerage to other investors, deeming the claimed expenditure excessive and unreasonable.

The appellant relied on precedents from the Madras High Court to support treating the payments as business expenditure. However, the Court distinguished those cases, emphasizing the necessity of considering the unique facts of each case. The Court upheld the findings of the lower authorities, concluding that no substantial question of law arose in the appeal. Consequently, the appeal was dismissed in limine, affirming the decision to disallow the commission payments to family members as business expenditure under the Income Tax Act.