2013 (10) TMI 703 - AT - Income Tax

Disallowance of Commission expenditure Foreign traveling expenses - genuineness of expenditure - diversion of income - Held that - Thus a full- fledged exercise was to be carried out by the assessee and its agent as per MOU for rendering the services and earning the commission - No record or evidence what-so-ever has been produced to this effect. The assessee has utterly failed to demonstrate the nature, extent of service rendered by the agent and availed by the assessee for its business of modular kitchens - what appears on record is merely book entries coupled with TDS the amount which will be claimed as a refund by the recipient being a loss making concern - the assessee has produced only skeletal paper work of the arrangement without any iota of evidence about actual business services rendered. CIT Vs. Imperial Chemical Industries Ltd. 1969 (2) TMI 15 - SUPREME Court - the burden of proving that a particular expenditure has been laid out or incurred wholly and exclusively for the purpose of business is entirely on the assessee - The discharge of the burden has to be effective and meaningful and not to cover up by merely book entries and paper work there was no infirmity in the order of lower authorities in making this disallowance which is upheld Decided against Assessee.

Summary

Issues Involved:
1. Legitimacy of sales commission expenses.
2. Disallowance of foreign traveling expenses.

Issue-wise Detailed Analysis:

1. Legitimacy of Sales Commission Expenses:
The primary issue revolves around the addition made by the Assessing Officer (A.O.) on account of sales commission paid to K.S. Singhal Dairies Pvt. Ltd. (KSSD). The assessee claimed that the commission was paid for booking orders for modular kitchens, supported by debit notes and a Memorandum of Understanding (MOU) dated 2-4-2007. Despite the assessee's submission of TDS deductions and ledger accounts, the A.O. raised concerns based on the following observations:
- KSSD's directors lacked expertise in modular kitchen appliances, having a background in the dairy business.
- KSSD had significant unabsorbed depreciation and business losses, potentially using the commission to reduce its losses.
- The auditors were common to both entities.
- The commission rate of 22% was considered exorbitant and not aligned with market practices.

The A.O. disallowed the commission expenses, concluding that the assessee failed to substantiate the business purpose of the commission payment.

On appeal, the CIT(A) upheld the A.O.'s decision, noting that the assessee did not provide credible evidence of services rendered by KSSD. The CIT(A) emphasized that the MOU and debit notes were insufficient to prove the legitimacy of the commission, suspecting a mutually beneficial arrangement to reduce taxable income.

The assessee argued that the commission was a standard market practice and supported by the MOU. However, the tribunal found that the assessee failed to produce substantial evidence of services rendered, such as customer inquiries, sales records, or feedback. The tribunal emphasized that the burden of proof lies with the assessee to demonstrate that the expenditure was incurred wholly and exclusively for business purposes, as per Section 37(1) of the Income Tax Act. The tribunal upheld the disallowance, citing the lack of concrete evidence and the Supreme Court's ruling in CIT Vs. Imperial Chemical Industries Ltd. 74 ITR 17, which places the burden of proof on the assessee.

2. Disallowance of Foreign Traveling Expenses:
The second issue pertains to the disallowance of Rs. 1,50,000/- out of foreign traveling expenses claimed by the assessee. The A.O. noted that the expenses included personal expenses and were not fully supported by bills or vouchers. Consequently, an ad hoc disallowance was made to cover unverified and personal expenses.

The CIT(A) upheld the A.O.'s decision, highlighting that the assessee failed to provide specific details of the foreign exchange utilization and hotel bills. The CIT(A) stressed that under Section 37(1), the taxpayer must prove that the expenditure was incurred wholly and exclusively for business purposes.

The tribunal concurred with the CIT(A), noting that the assessee did not discharge the burden of proof by failing to produce necessary evidence. The tribunal upheld the disallowance, reiterating the principles laid out in the Imperial Chemical Industries case.

Conclusion:
The tribunal dismissed the assessee's appeal, affirming the disallowances made by the lower authorities on both the sales commission and foreign traveling expenses. The judgment underscores the importance of substantiating business expenses with credible evidence to meet the requirements of Section 37(1) of the Income Tax Act.