2019 (10) TMI 144 - AT - Income Tax

Addition on account of commission paid - related party transaction - HELD THAT - In the absence of any rebuttal on relevant facts namely; that Shri Abhay Pal Jaswal and Ms. Shilpi Tandon were non related parties to whom payments had been made through banking channel on which TDS stood deducted and TDS returns stood filed. Copies of their Income Tax Returns were made available. Sales effected by these agents in specific areas to specific parties has been identified and confirmed by the parties which have been referred to in detail in the submissions extracted from the impugned order, none of these facts and evidences have been assailed by the Revenue. No reason has been set out in the order why these be discarded especially in facts where the assessee consistently states that since these parties were no longer associated with the assessee, he had no authority to command their presence. Their affidavits are available on record. In the circumstances, the argument advanced on behalf of the assessee as per record, it is seen is that the assessee was under a bonafide belief that the explanation offered supported by way of affidavits etc. was sufficient, to discharge the burden of proof cast upon him. In case the evidence in the face of assessee's inability to produce the parties with whom the assessee had no further interaction and infact had no authority to command their presence was to be discarded or disbelieved. If their presence was so necessary, AO could have exercised his powers to summon them. It is seen that neither the evidence is discredited nor the affidavits available on record have been upset. In the circumstances, in the absence of any rebuttal on the evidences on record, the AO, it appears merely ignored these evidences and insisted on the presence of the parties. The said exercise in all fairness cannot be justified. It is not a case that the parties were not available at the addresses provided by the assessee. AO having failed to issue summons or rebut the evidences, in these peculiar facts and circumstances, cannot be said to be justified in making the addition. These infirmities in the order passed have been assailed by the assessee in appeal, however, the CIT(A) also not cared to address them and has confirmed the additions solely on the ground that the parties were not produced ignoring the fact that the assessee had no authority to command their presence. The evidences relied upon in support of the claim and the submissions extracted in detail in the impugned order, it is seen have not been assailed or upset. Being satisfied with the explanation advanced for the reasons set out hereinabove, it is directed that the additions made by way of disallowance on account of these two parties i.e. Shri Abhay Pal Jaswal and Ms. Shilpi Tandon are to be deleted. - Appeal of the assessee is allowed.

Summary

Issues Involved:
1. Justification of addition on account of commission paid.
2. Disallowance of commission based on non-production of two commission agents.
3. Consideration of evidences submitted by the appellant.
4. Application of Section 131 of the Income Tax Act, 1961.

Detailed Analysis:

1. Justification of Addition on Account of Commission Paid:
The assessee challenged the addition of ? 6,19,453/- on account of commission paid, arguing it was unjustified, illegal, and arbitrary. The assessee's total commission expense was ? 21,82,476/- paid to seven persons, of which only the commission paid to two persons was disallowed by the Assessing Officer (AO) due to the assessee's inability to produce these two persons during the assessment proceedings.

2. Disallowance of Commission Based on Non-Production of Two Commission Agents:
The AO disallowed the commission expenses related to Shri Abhay Pal Jaswal and Ms. Shilpi Tandon, as the assessee failed to produce them. The CIT(A) upheld this disallowance, emphasizing that despite adequate opportunities, the assessee could not produce these agents and expressed helplessness in doing so. The CIT(A) concluded that the commission payments to the remaining two persons could not be treated as genuine due to their non-production.

3. Consideration of Evidences Submitted by the Appellant:
The assessee provided various evidences, including acknowledgment of Income Tax Returns, PAN numbers, TDS Certificates, and sworn affidavits of the two agents. The assessee argued that similar evidences were accepted for the other five agents. The assessee also highlighted that the AO did not utilize his powers under Section 131 to summon these agents. The CIT(A) and the AO did not address these evidences adequately, leading to the assessee's claim that the disallowance was made without proper consideration of the submitted documents.

4. Application of Section 131 of the Income Tax Act, 1961:
The assessee contended that the AO could have used his powers under Section 131 to summon the two agents if their presence was deemed necessary. The assessee argued that it had no authority to command the presence of these agents, who were no longer associated with the assessee. The Tribunal noted that the AO did not discredit the evidences or the affidavits available on record and failed to issue summons to the agents. The Tribunal emphasized that the AO's insistence on the physical presence of the agents, without utilizing his powers to summon them, was unjustified.

Conclusion:
The Tribunal concluded that the disallowance of commission expenses for Shri Abhay Pal Jaswal and Ms. Shilpi Tandon was not justified. The Tribunal directed that the additions made by way of disallowance on account of these two agents be deleted, as the evidences provided by the assessee were not rebutted, and the AO did not exercise his powers to summon the agents. The appeal of the assessee was allowed, and the order was pronounced in the Open Court on 30th Sept., 2019.