2014 (7) TMI 957 - AT - Income Tax

Commission expenses Onus to prove - Held that - The onus to establish the expenditure as incurred for the purposes of business/profession is squarely on the assessee Relying upon Lachminarayan Madan Lal vs. CIT 1972 (9) TMI 4 - SUPREME Court - CIT(A) s decision is based on incomplete enquiry by the AO u/s.133, has misled himself - It is only after the assessee has discharged the initial onus on him to establish the nature of the expenditure and its nexus with the assessee s trade, that the verification by the AO shall assume significance - The inchoate nature of the verification process would be of no moment, and it would be wholly incorrect to say that the disallowance stood effected for that reason - The matter is wholly factual, and stands to be decided, in the final analysis, on the assessee having, or not so, discharged the burden of proof on it thus, the restoration of the disallowance is ordered Decided in favour of Revenue. Repairs and maintenance expenses Held that - The fact that the assessee established his business premises, commenced work without undertaking the repairs, and continued to do so for five years, itself, if at all, disproves the claim of it being in a shabby condition when let there was the absence of the basic or primary material in the form of bill/s, voucher/s, to evidence the repair work; the rent deed, etc. -The expenditure remains, consequently, completely unproved thus, the disallowance is restored Decided in favour of Revenue.

Summary

Issues Involved:
1. Disallowance of commission expenses claimed by the assessee.
2. Disallowance of expenditure on repairs and maintenance.

Detailed Analysis:

1. Disallowance of Commission Expenses:

The first issue pertains to the assessee's claim toward commission expenses amounting to Rs. 16,46,320/-. The assessee reported an income of Rs. 4,79,920/- on professional receipts of Rs. 39.64 lacs, with claimed expenses of Rs. 34.66 lacs, of which Rs. 20.31 lacs was shown as payable at year-end. The nature of the business was not specified. Notices under section 133(6) of the Income Tax Act, 1961 were sent to six parties to whom the commission was payable, but the responses were either unserved, not complied with, or the assessee did not furnish addresses.

Confirmations from payees were provided by the assessee, but no evidence or reason for the commission payments was furnished, leading to the disallowance of the expense. The CIT(A) allowed the appeal, citing that non-compliance with notice u/s 133(6) cannot be a ground for disallowance if payments were made by cheque and no bogus payment was indicated.

The Revenue contended that the assessee failed to discharge the onus of proving the expenses. The Tribunal noted the assessee's uncooperative attitude during assessment proceedings and the absence of any material evidence to substantiate the nature of services rendered or the necessity of the commission expenses. The Tribunal emphasized that proof of payment does not equate to proof of services rendered and highlighted discrepancies in signatures and lack of basic details about the services or the team members involved. Consequently, the Tribunal vacated the findings of the CIT(A) and restored the disallowance of the commission expenses.

2. Disallowance of Expenditure on Repairs and Maintenance:

The second issue concerns the disallowance of Rs. 3,65,756/- claimed as expenditure on repairs and maintenance. The A.O. disallowed the expense due to the assessee's failure to furnish vouchers or evidence of the repairs. The assessee argued that the premises, rented five years ago, were in a shabby condition, necessitating repairs, which were contracted to M/s. Technical Aspect and paid by cheque. The CIT(A) allowed the claim based on the explanation and the mercantile method of accounting followed by the assessee.

The Revenue appealed, arguing that the assessee failed to provide details of the repairs on the rented premises. The Tribunal found the assessee's case unsupported by any material evidence, such as bills, vouchers, or the rent deed, and noted the improbability of extensive repairs being undertaken without prior necessity. The Tribunal also questioned the delayed payment for the repairs, which raised doubts about the genuineness of the claim. Thus, the Tribunal vacated the CIT(A)'s findings and restored the disallowance of the repair and maintenance expenses.

Conclusion:

The Tribunal allowed the Revenue's appeal, restoring the disallowances of both the commission expenses and the expenditure on repairs and maintenance, citing lack of evidence and failure of the assessee to discharge the burden of proof.