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2017 (2) TMI 515 - AT - Income TaxDisallowance of payment of commission - Held that - The assessee has established that the payment of commission was for services rendered by ACPL as well as IMACO. No contrary evidence has been brought on record by the AO to disallow the expenditure on account of commission. The observations of the AO in the order of assessment that the transactions is bogus or sham and was undertaken to camouflage some expenses which are not legally admissible being in contravention of the laws of the land, is purely a surmise. There is no evidence brought on record to come to this conclusion. On the other hand, the evidence on record as noticed by the AO in the order of assessment itself clearly goes to prove that the liaison activities were in fact rendered by ACPL. As rightly held by CIT(A) in his appellate order for A.Y.2009-10, the AO seems to have proceeded on the basis that the payment of commission was not commensurate with the services rendered by the recipients. The CIT(A) has rightly placed reliance on the decision of the Hon ble Supreme court in the case of Sassoon J.David & Co.P.Ltd. vs CIT. (1979 (5) TMI 3 - SUPREME Court) to come to the conclusion that the revenue cannot assume the role of ascertaining how much the is reasonable expenditure having regard the circumstances of the case. The CIT(A) has also duly taken note of the fact that ACPL and the assessee were not related parties and that all the payment have been made through banking channels after due deduction of tax at source. - Decided against assessee
Issues Involved:
1. Justification of CIT(A) in deleting the addition made by the AO by disallowing the claim of the assessee for deduction of commission paid to M/s. Atirath Commercial (P) Ltd. (ACPL) and M/s. IMACO Projektentwicklungs GmbH, Austria (IMACO). Detailed Analysis: Issue 1: Justification of CIT(A) in Deleting the Addition Made by the AO by Disallowing the Claim of the Assessee for Deduction of Commission Paid to ACPL and IMACO Background: The Assessee, a German company engaged in civil engineering and construction, was awarded contracts by the Kolkata Municipal Corporation (KMC). For the fiscal years 2010-11 and 2011-12, the Assessee claimed deductions for agency commissions paid to ACPL and IMACO. The AO disallowed these claims, leading to appeals by the Assessee. Evidence Provided by Assessee: 1. For ACPL: - Agreement dated 21.09.2007. - Bank statements, ledger entries, and invoices evidencing payment. - Detailed description of services provided, including assistance in contract negotiations, securing permits, and liaison with KMC. 2. For IMACO: - Agreement dated 28.01.2008, ledger entries, and payment evidence. - Invoices describing the services as "consultancy services" tied to payments received from KMC. AO’s Observations: - The AO examined ACPL's director and found no substantial evidence of services rendered. - The AO questioned ACPL's capability due to its lack of workforce and technical expertise. - The AO concluded that the transactions were either sham or bogus, adding the commission amounts back to the Assessee's income. - No specific inquiries were made regarding the commission paid to IMACO, yet it was disallowed. CIT(A)’s Findings: - For A.Y. 2009-10, CIT(A) had deleted similar disallowances, recognizing the necessity of local support for a foreign company. - CIT(A) noted that the Assessee had provided sufficient evidence of services rendered by ACPL and IMACO. - The genuineness of the agreement with IMACO was confirmed, and the services provided were deemed necessary and legitimate. - CIT(A) emphasized that the revenue authorities should not question the quantum of business expenditure if it is established as incurred for business purposes. Tribunal’s Decision: - The Tribunal acknowledged that the Assessee had established the payment of commission for services rendered by ACPL and IMACO. - The AO’s conclusions of the transactions being sham or bogus were deemed speculative without concrete evidence. - The Tribunal upheld CIT(A)’s reliance on the Supreme Court’s decision in Sassoon J. David & Co. P. Ltd. v. CIT, which states that revenue authorities should not judge the reasonableness of business expenditures. - The Tribunal noted the rule of consistency, highlighting that the revenue had accepted CIT(A)’s order for A.Y. 2009-10 and should not take an opposite stand for identical issues in subsequent years. Conclusion: The Tribunal found no grounds to interfere with CIT(A)’s order and dismissed the revenue’s appeals, thereby upholding the deletion of the disallowances for commission payments to ACPL and IMACO for A.Y. 2010-11 and 2011-12. Order Pronouncement: The appeals by the revenue were dismissed, and the order was pronounced in the Court on 08.02.2017.
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