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2018 (10) TMI 1118 - AT - Income TaxDisallowance in respect of Commission and incentive made - Held that - It is pertinent to note that the CIT(A) and the Assessing Officer has relied upon the assessment order for Assessment Year 2003-04 but failed to appreciate that in the assessee s own sister concern in case of Bulk Explosives this issue has been decided in favour of the assessee. In-fact the CIT(A) has noted the said decision in paragraph 6(3) of the order but still confirmed the disallowance without giving any proper reasons. In case of BULK EXPLOSIVES C/O BHARAT EXPLOSIVES LTD. VERSUS DCIT CIRCLE NOIDA 2013 (6) TMI 853 - ITAT DELHI held this is a case where the assessee has proved the identity of the Commission Agents. The nature of services were stated. Tax was deducted at source and payments made through cheques. In the case of Combined Associates the major commission agent the genuineness of the claim has been prima facie accepted by the A.O. of Combined Associates. In our view the assessee has discharged the burden of proof that lay on it. There is no adverse material collected by the A.O. There is no allegation of illegal payments much less evidence. The disallowance was made on mere surmises. Hence we are inclined to allow the claim of the assessee. - decided in favour of assessee.
Issues:
Disallowance of commission and incentive by Assessing Officer and CIT(A) for Assessment Year 2005-06. Analysis: The assessee, a Private Limited Company engaged in manufacturing industrial explosives, filed a return of income showing a loss for the year. The Assessing Officer disallowed a capital subsidy received by the assessee, treating it as a revenue receipt. Additionally, the Assessing Officer disallowed expenses claimed for commission and incentive paid by the assessee. The CIT(A) partly allowed the appeal of the assessee. The issue revolved around the disallowance of commission and incentive paid by the assessee. The assessee challenged the disallowance, arguing that the Assessing Officer and CIT(A) ignored the evidence presented during the assessment proceedings. The assessee contended that principles of res judicata do not apply to tax proceedings, especially when the earlier order was not of the assessee. The assessee emphasized that each case must be examined on its own facts and highlighted the necessity of appointing agents to deal with government departments. The assessee provided evidence of payments made through cheques with TDS deductions and detailed the nature of services rendered by the commission agents. The Tribunal noted that a similar issue had been decided in favor of the assessee's sister concern in a previous case. The Tribunal referred to the decision in the case of Bulk Explosives Ltd., where it was held that the assessee had proven the identity of commission agents, the nature of services provided, and the genuineness of the claim. The Tribunal concluded that the assessee had discharged the burden of proof and allowed the claim. The Tribunal also cited relevant case laws supporting the payment of commission for services rendered to the assessee in dealings with government enterprises. Based on the precedent set by the Co-ordinate Bench of the Tribunal and the favorable decision in the case of the assessee's sister concern, the Tribunal allowed the appeal of the assessee. The Tribunal emphasized that the assessee had provided sufficient evidence to support the claim for commission and incentive paid, and there was no adverse material or evidence of illegal payments. Consequently, the disallowance by the Assessing Officer and CIT(A) was overturned, and the appeal of the assessee was allowed.
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