2015 (10) TMI 81 - AT - Income Tax

Disallowance of commission paid to two Managing Directors u/s 36(1) (ii) - revision u/s 263 - Held that - The Hon ble High Court has given a direction in respect of examining the scope of Section 36 (i) (ii) of the Act after taking into account various documents. Secondly, the enclosures supplied by the assessee to the Assessing Officer were actually given to the Assessing Officer and there was no proof given by the DR that at no point of time, that the documents were not available with the Department. The third aspect that AO has not applied his mind does not come in the purview of Section 263 of the Act. The scope of Section 263 of the Act has to be taken into account that if the Assessing Officer while passing the Assessment order has erroneously done the same and which is prejudicial to the interest of the revenue then only the revision of orders u/s 263 of the Act be passed by the Commissioner of Income Tax. The provision under Section 263 of the Act does not give powers to the Commissioner to make enquiry again for the issue which has been decided after verifying all the documents on record by the Assessing Officer. In fact the scope of Section 263 of the Act is in respect of the order passed by the assessing officer which is erroneous in so far as it is prejudicial to the interest of the revenue. In the present case, the Assessing Officer has verified all the documents in fact he has taken into consideration and after verifying the same has rightly held that no disallowance is to be made under Section 36(1) (ii) of the Act. We, therefore, set aside the impugned order of the Ld. CIT and restore the assessment order passed by the A.O. - Decided in favour of assessee.

Summary

Issues:
1. Correctness of additions made by Assessing Officer to the income of the assessee.
2. Validity of notice issued by Commissioner under Section 263 of the Income Tax Act.
3. Applicability of Section 36(1)(ii) of the Act to commission payments.
4. Observations on apportionment of expenses between trading and exempt units.

Analysis:

Issue 1: Correctness of additions by Assessing Officer
The assessee, engaged in manufacturing and trading, had its return scrutinized by the Assessing Officer who made additions to the income on substantive and protective basis. The Assessing Officer, after due verification, justified the bifurcation/apportionment of income. The Commissioner issued a notice under Section 263, questioning the correctness of the additions made by the Assessing Officer, specifically focusing on commission payments and expenses apportionment.

Issue 2: Validity of notice under Section 263
The Commissioner observed discrepancies in the acceptance of commission payments and the apportionment of expenses by the Assessing Officer. The Commissioner set aside the assessment, directing the Assessing Officer to verify the commission payments made to the directors and the apportionment of expenses. The Tribunal dismissed the appeal, leading to the matter being remitted back by the High Court for detailed examination.

Issue 3: Applicability of Section 36(1)(ii) to commission payments
The main issue revolved around the commission payments to directors and the applicability of Section 36(1)(ii) of the Act. The assessee provided detailed documentation to support the commission payments, including agreements, ledger accounts, and equity shareholding details. The AR argued that the commission was approved by shareholders and maintained separate accounts for manufacturing and trading units, justifying the apportionment of common expenses.

Issue 4: Observations on apportionment of expenses
The Commissioner raised concerns about the apportionment of expenses, suspecting an attempt to inflate trading expenses and reduce actual expenses of the exempt unit. The High Court highlighted the need for a thorough examination of the apportionment and the application of Section 36(1)(ii) by the Assessing Officer. The Tribunal, after considering all submissions, concluded that the Assessing Officer had appropriately verified all documents and made a reasoned assessment, thereby setting aside the Commissioner's order under Section 263 and restoring the original assessment order.

In conclusion, the appeal of the assessee was allowed, emphasizing the importance of thorough verification and assessment procedures in tax matters to ensure fairness and compliance with the law.