2014 (1) TMI 1086 - HC - Income Tax

Expenditure on secret commission and specimen distribution - Held that - Decision in CIT v. Taraporvala Sons Co. (P) Ltd. 1999 (3) TMI 54 - BOMBAY High Court followed - In view of the amendment to s.37(1) of the Act by the insertion of Explanation with retrospective effect from the inception of the Act, i.e. 1st April 1962, the matter requires consideration by the Tribunal - Any secret transaction/payment that is made to secure an unfair advantage, would necessarily be repugnant to law - Transaction which is not transparent, offends normal business practice, must suffer scrutiny - The expenditure incurred on secret commissions would necessarily fall within the mischief of the explanation added to Section 37 of the Act. The Tribunal has decided the matter in a sweeping and general manner - The impugned order neither discusses the evidence nor takes into account any other facts and attending circumstances but there is only sweeping reference to its earlier judgments - When neither the incurring of expenditure as a fact under the two given heads has been properly accounted for nor application, in their relation and impact of Explanation added to Section 37 of the Act has been taken into consideration, the impugned order is legally vitiated - The issue has been set aside for fresh adjudication.

Summary

Issues:
1. Disallowance of expenditure on secret commission and specimen distribution.
2. Legality of incurring expenses like secret commission and specimen distribution.

Analysis:
1. The case involved an income tax appeal regarding the disallowance of expenditure on secret commission and specimen distribution by the Commissioner of Income Tax against the order of the Income Tax Appellate Tribunal. The appellant claimed that the expenses were incurred for sales promotion and supply of specimen books to teachers. The Assessing Officer disallowed a portion of the claimed expenses, leading to an appeal by the assessee. The first appeal resulted in the deletion of the disallowed amount, which was further upheld by the Tribunal.

2. The crux of the issue revolved around whether the expenditure on secret commissions and specimen distribution constituted an offense or was prohibited by law, particularly in light of the newly inserted Explanation to Section 37 of the Income Tax Act, 1961. The revenue contended that such practices were now impermissible under the law, citing the retrospective application of the amendment from 1998. On the other hand, the assessee defended the expenses as essential for business practices in a competitive environment.

3. The High Court noted a significant difference in the approach to the assessment compared to previous years. The introduction of the Explanation to Section 37 in 1998, with retrospective effect from 1962, had a crucial impact on the legality of the expenses in question. The Court emphasized the need for transparency in transactions and highlighted the potential risks associated with allowing unexplained and unvouched expenditure, which could lead to illegal practices and tax evasion.

4. The Court found that the Tribunal's decision lacked proper evaluation of evidence and failed to consider the impact of the Explanation to Section 37 on the claimed expenses. It was observed that the impugned order did not address the evidence or the application of the law adequately, relying heavily on previous judgments. Consequently, the Court set aside the order and remitted the case to the Tribunal for a fresh examination of the allowability of deductions on secret commissions and specimen distribution in light of the Explanation to Section 37.

5. In conclusion, the Court emphasized the need for a thorough evaluation of the evidence regarding the incurring of expenses on secret commissions and specimen distribution. The Tribunal was directed to re-examine the matter considering the legal provisions and to provide a reasoned finding on the reasonableness of such expenditure, ensuring compliance with the Explanation appended to Section 37(1) of the Income Tax Act.