2012 (9) TMI 475 - AT - Income Tax

Disallowance of commission expense - AO issue notice u/s 133 to service provider for examination in respect of commission income - Notice could not be severed due to change in name of payee s companies at the address provided - AO directed assessee to produce service provider - Assessee unable to produce payee - Submit certificates along with replies from payee - Assessee submit details such as payment through cheque TDS has been deducted & deposited commission shown as income in ITR of recipient and confirmations along with agreements - Held that - As assessee submit details such as payments were made by cheques and after deduction of TDS and the income was reflected in returns of income. If notice could not be served due to change in name of Company then fresh notice needs to be issue with new name of recipient. Therefore AO has to use his powers to issue notice u/s 133 of summon regarding examination of the payee.Case remand back to AO for fresh examination. Can genuine business expenditure disallow merely because of wrong nomenclature - Assessee receives fund to finance its project - Assessee paid him certain sum which is compensatory in nature for providing fund & shown as commission expense - TDS has been deducted & also shown as income in return of recipient - Held that - As the recipient confirmed the receipt on which TDS deducted & shown as income in his return. Therefore it is genuine business expenditure of the assessee though wrongly claimed by assessee as commission expenditure. Decided in favor of assessee.

Issues:
1. Disallowance of commission expenditure.
2. Verification of services rendered by commission agents.
3. Disallowance of commission payment to specific parties.
4. Treatment of payment as appropriation of income.

Issue 1: Disallowance of Commission Expenditure
The appellant, a proprietor of two firms, declared total income and claimed commission expenditure in one of the firms. The Assessing Officer issued notices to verify the genuineness of services rendered by commission agents. Despite efforts, independent confirmations from the parties were not received. The Assessing Officer disallowed the commission paid, stating the inability to prove services rendered. The appellant appealed, providing various documents to support the genuineness of payments. The Assessing Officer's remand report deemed the payment to one party as not genuine. The appellant argued that all payments were by cheque, TDS was deducted, and the parties filed income tax returns. Legal precedents were cited to support the appellant's claim. The Commissioner upheld the disallowance for some parties but allowed for one. The Tribunal found the payment to one party as genuine business expenditure and set aside the decision on another party for further examination by the Assessing Officer.

Issue 2: Verification of Services Rendered by Commission Agents
The Assessing Officer requested the appellant to produce the principal officers of the companies to verify services rendered by commission agents. The appellant provided explanations for non-receipt of notices by the companies and submitted details regarding the nature of transactions. The Commissioner noted the failure to establish services rendered by one company and the absence of direct relation between expenses and commission income. The Tribunal criticized the Assessing Officer for not properly summoning the recipient of commission and directed a fresh examination to ensure justice.

Issue 3: Disallowance of Commission Payment to Specific Parties
The Assessing Officer disallowed commission payments to specific parties due to the inability to prove services rendered. The appellant argued for the genuineness of payments, citing TDS deductions, cheque payments, and income tax returns filed by the parties. The Commissioner upheld the disallowance for some parties but allowed for one based on the evidence provided. The Tribunal found one payment to be a genuine business expenditure and set aside the decision on another for further examination.

Issue 4: Treatment of Payment as Appropriation of Income
Regarding a specific payment, the Commissioner held that the recipient did not render any services, and the payment was considered unjustified. It was concluded that the payment was an appropriation of income and not compensatory in nature. The appellant appealed, arguing that the payment was a genuine business expenditure as confirmed by the recipient. The Tribunal found the payment to be a genuine business expenditure, albeit wrongly claimed as commission, and allowed the appeal for statistical purposes.

This detailed analysis covers the disallowance of commission expenditure, verification of services rendered by commission agents, disallowance of commission payment to specific parties, and the treatment of payment as appropriation of income as addressed in the legal judgment by the Appellate Tribunal ITAT, Delhi.

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