2022 (9) TMI 707 - AT - Income Tax

Disallowance of commission paid to the directors - Issue recurring in nature - principle of res-judicata - Scope of principle of consistency - directors to whom the said commission is paid are having substantial shareholding and they have been paid dividend in the garb of commission which is not allowable - HELD THAT - The Hon ble High Court 2019 (11) TMI 1008 - GUJARAT HIGH COURT after considering the contention of both the parties, dismissed the appeal of revenue by holding that payment of commission was made by the assessee company to its director have been allowed for five continuous assessment years. Nothing has been pointed out to show that the position has changed in the year under consideration. Under such circumstances, the Tribunal was wholly justified in allowing the grounds of appeal. The grounds of appeal, therefore, does not rise to any question of law, much less, a substantial question of law, warranting interference - Hon ble Supreme Court Radhasoami Satsang 1991 (11) TMI 2 - SUPREME COURT wherein held that, where a fundamental aspect permeating through the different assessment years has been found as a fact one way or the other and the parties have been allowed that position to be sustained by not challenging the order, it would not be at all appropriate to allow the position to be changed in subsequent year. We find that no change in fact for the year under consideration is brought to our notice to take the other view, therefore, respectfully following the decision of Coordinate bench, which has been affirmed by the Hon ble Jurisdictional High court, we do not find any merit in the grounds of appeal raised by revenue. All the submissions or the objections raised by the ld. CIT-DR for the revenue has already been considered by our predecessor while deciding the similar issue in appeal for A.Y. 2011-12, 2013-14 and 2014-15. In the result, ground No. 1 of appeal is dismissed. Unexplained cash credit u/s 68 - HELD THAT - Hon ble Supreme Court in PCIT Vs Montage Enterprises P Limited 2018 (10) TMI 1452 - SC ORDER held that where the High Court upheld the order of Tribunal in deleting the addition made under Section 68 in respect of trade advances on the ground of that the said advances were adjusted against sales made in the subsequent assessment years, the special leave filed against the said decision was to be dismissed. We find that in Ayachi Chandrashekhar Narsangji 2013 (12) TMI 372 - GUJARAT HIGH COURT though, on the context of repayment of loan in subsequent year, also held that when the department had accepted repayment of loan in subsequent years, no addition was to be made in the current year on account of cash credit. At the cost of repetition, we may mention that once the Assessing Officer has accepted the sale against the advances of previous year and the assessee has offered due tax thereon, no addition against the trade advance was liable to be added. With the aforesaid additional observation, we affirm the order of ld. CIT(A). In the result, ground No. 2 of appeal raised by revenue is also dismissed.

Summary

Issues Involved:

1. Deletion of addition on account of disallowance of commission paid to directors.
2. Deletion of addition on account of unexplained cash credits.

Issue-wise Detailed Analysis:

1. Deletion of Addition on Account of Disallowance of Commission Paid to Directors:

The revenue contended that the CIT(A) erred in deleting the addition of Rs. 1,75,00,000/- made on account of disallowance of commission paid to directors without considering the judgment of the Special Bench of the ITAT in the case of Dalal Broacha Stock Broking Pvt. Ltd. The revenue argued that the principle of res judicata is not applicable in income tax cases, and each assessment year should be considered separately. They also argued that the commission paid to directors was in the guise of dividend distribution, which is not allowable under Section 36(1)(ii) of the Income Tax Act.

The assessee countered that the issue is covered by the judicial precedence in their own case for the assessment years 2011-12, 2013-14, and 2014-15, where similar disallowances were deleted by the Tribunal and affirmed by the Gujarat High Court. The assessee argued that the principle of consistency should be respected, and the commission was paid for actual services rendered by the directors, which resulted in the growth of the company.

The Tribunal found that the commission payment to directors was a consistent practice since the financial year 2005-06 and was allowed in previous assessment years. The Tribunal noted that the payment was made for services rendered by the directors, contributing to the company's growth. The Tribunal held that the principle of consistency should be respected, and the disallowance was not justified. The Tribunal also referred to the decision of the Hon'ble Supreme Court in Radhasoami Satsang Vs. CIT, which supports the rule of consistency.

The Tribunal dismissed the revenue's appeal, affirming that the commission paid to directors was for services rendered and not in the nature of dividend distribution. The Tribunal also noted that the issue had attained finality with the decision of the Gujarat High Court, which dismissed the revenue's appeal.

2. Deletion of Addition on Account of Unexplained Cash Credits:

The revenue contended that the CIT(A) erred in deleting the addition of Rs. 48,90,672/- made on account of unexplained cash credits. The revenue argued that the assessee failed to provide PAN, confirmation, and addresses of the customers from whom advances were received, and thus the amount should be treated as unexplained cash credit under Section 68 of the Income Tax Act.

The assessee argued that the advances from customers were duly accounted for in the books and shown as payable under current liabilities. The assessee contended that these advances were adjusted against sales in subsequent years, and taxing them under Section 68 would amount to double taxation. The assessee supported their argument with the decision of the Hon'ble Supreme Court in PCIT Vs. Montage Enterprises Ltd.

The Tribunal found that the advances received from customers were adjusted against sales in subsequent years, and the assessee had offered the sales for tax in those years. The Tribunal noted that the Assessing Officer accepted the sales against the advances in subsequent years, and thus, taxing the same in the current year would lead to double taxation. The Tribunal referred to the decision of the Hon'ble Supreme Court in PCIT Vs. Montage Enterprises Ltd., which supports the assessee's contention.

The Tribunal dismissed the revenue's appeal, affirming that the advances from customers were duly accounted for and adjusted against sales in subsequent years. The Tribunal held that the addition under Section 68 was not warranted, as the facts clearly indicated that the advances were genuine and recorded in the books of accounts.

Conclusion:

The Tribunal dismissed both the appeals of the revenue and affirmed the orders of the CIT(A). The Tribunal also dismissed the cross objections raised by the assessee as infructuous. The Tribunal's decision was based on the principles of consistency and the factual findings that the commission paid to directors was for services rendered and the advances from customers were genuine and adjusted against sales in subsequent years.