2014 (3) TMI 393 - HC - Income Tax

Disallowance of huge commission paid to relatives being nephew - Interpretation of Sections 2(41) and 40A(2)(b) - genuineness of expenses - Whether the relationship of the Assessee and Sh. Anil Kumar Gupta not falling within the ambit of Section 40A(2)(b) the disallowance of expenditure by ignoring the provision of Section 2(41) of the Income Tax Act can be legally sustained Held that - The Tribunal had come to a definite finding that it was not on account of being a nephew of the assessee that he was paid such huge commission. It is also clear that it was well within the cognizance of the Tribunal that a nephew was not included in the term relative as per Section 2(41) of the Act. This aspect is not at all concerned with regard to rejection of plea of the assessee and with making of addition in his income. It was on entirely different grounds. All the three revenue authorities on facts had come to one and the same conclusion and there is concurrent finding that payment of commission shown in books of accounts of the assessee was merely a subterfuge to reduce the tax liability of the assessee as such no substantial question arises from the appeal Decided against Assessee.

Summary

Issues:
1. Assessment years 1989-90 and 1990-91 - Addition of commission paid to Anil Kumar Gupta.
2. Legality of the orders passed by the Income Tax Appellate Tribunal and Commissioner of Income Tax (Appeals).
3. Interpretation and application of Sections 2(41) and 40A(2)(b) of the Income Tax Act.
4. Justification for disallowing the commission paid to Anil Kumar Gupta.

Analysis:

Issue 1:
The appeals arose from the joint order passed by the Income Tax Appellate Tribunal concerning the addition of commission paid to Anil Kumar Gupta for assessment years 1989-90 and 1990-91. The assessee, engaged in electronics equipment supply, declared varying incomes in his returns, leading to a dispute over the legitimacy of the commission paid.

Issue 2:
The legality of the orders passed by the Tribunal and Commissioner of Income Tax (Appeals) was challenged. The Tribunal upheld the re-opening of assessment and disallowed the commission paid, leading to the appeals questioning the sustainability of the orders.

Issue 3:
The interpretation and application of Sections 2(41) and 40A(2)(b) of the Income Tax Act were central to the dispute. The assessee argued that Anil Kumar Gupta did not qualify as a relative under Section 2(41), thus negating the application of Section 40A(2)(b) to disallow the commission.

Issue 4:
The justification for disallowing the commission paid to Anil Kumar Gupta was extensively debated. The revenue contended that the commission was a tax-saving device, not a legitimate business expense, and that Anil Kumar Gupta's contributions did not warrant such a substantial payment.

The Assessing Officer and the Commissioner of Income Tax (Appeals) found the commission payment to be a tax avoidance strategy, leading to disallowance. The Tribunal concurred with this assessment, dismissing the appeals and emphasizing the factual findings and concurrent conclusions reached by the revenue authorities. The Tribunal rejected the claim that the commission was justified, highlighting the absence of substantial legal issues and dismissing the appeals for lack of merit.