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आदेश/Order
Per Sanjay Garg, Judicial Member:
The present appeal has been preferred by the assessee against the order dated 08.02.2018 of the Commissioner of Income Tax (Appeals)-2 Chandigarh [hereinafter referred to as ‘CIT(A)’]
The assessee in this appeal has taken following grounds of appeal:- 1. That the order of the Assessing Officer as upheld by the CIT(A) is bad in law and is against all the cannons of law and justice.
ITA No. 487/Chd/2018- Ropar Distt. Cooperative Milk Producers Union Ltd, Mohali 2 2. That the order of the Assessing Officer as upheld by the Commissioner of income tax (appeals) -2 Chandigarh disallowing commission paid by the appellant amounting to Rs.2,30,09,955/-to other cooperative societies after deducting tax at source through banking channels claimed as business expenditure is bad in law and needs to be set aside.
That the appellant craves leave to add, alter and delete any of the grounds of appeal before the final hearing of the appeal.
It is therefore humbly prayed that the order of the Assessing Officer imposing penalty and the order of the CIT(A) -2 Chandigarh dismissing the appeal may kindly be set-aside in view of facts, circumstances and the judicial decision in this behalf.
At the outset, the Ld. Counsel for the assessee has submitted that
the issue raised in this appeal is squarely covered by the earlier order of
the Tribunal in the own case of the assessee for assessment years 2012-
13 & 2013-14 vide order dated 28.08.2017 passed in ITA Nos. 625 &
626/Chd/2017. It is further pointed out that even the Ld. CIT(A) has
passed the impugned order following the earlier order of his
predecessor relevant for the earlier assessment year. He, therefore, has
requested that the issue in the present appeal be also restored to the file
of the Assessing Officer as per the directions given by this Tribunal
vide order dated 28.8.2017 (supra).
ITA No. 487/Chd/2018- Ropar Distt. Cooperative Milk Producers Union Ltd, Mohali
3 4. The Ld. DR has also fairly agreed that the issue is covered by the
earlier order of the Tribunal dated 28.8.2017.
The relevant part of the order dated 28.8.2017 is reproduced as
under:-
“3. Assessee has raised the following effective grounds of appeal :
" That the order of the Assessing Officer as upheld by the Commissioner of Income Tax (Appeals)-2 Chandigarh disallowing commission paid by the appellant amounting to Rs. 50,08,372/- to other cooperative societies after deducting tax at source through banking channels claimed as business expenditure is bad in law and needs to be set aside."
Brief facts of the case are that during the course of assessment proceedings, on perusal of Schedule 25 (Financial Expenses) of the P&L Account of the assessee, Assessing Officer observed that the assessee has debited an amount Rs, 50,08,372/- under the head of "Commission paid to Other Unions''. During the assessment proceedings the counsel of the assessee was asked to provide the details of the same and was also asked to justify the same expenses for which the counsel replied as under:
"That regarding the payment of commission/royalty to Patiala District Coop Milk Producers Union Ltd. Milk Plant Patiala at Rs.72,17,803/- during the year under consideration. It is submitted that an affidavit of the said Milk Union is being enclosed for your perusal and record. It may also be submitted here that the above noted assessee during the financial year under consideration has paid Rs. 10,21,666/-to the Hoshiarpur District Cooperative Milk Producers Union Ltd., Hoshiarpur. A copy of the affidavit of the said assessee is being enclosed for your perusal and record. It is submitted that the registrar cooperative societies, Punjab vide its letter dated 04.11.1993 had allocated area of operation of the assessee as well as other milk unions and accordingly every milk union was required to collect milk from the area allotted to it further. A copy of the letter is being enclosed for
ITA No. 487/Chd/2018- Ropar Distt. Cooperative Milk Producers Union Ltd, Mohali
4 your perusal and record. Further vide letter No. 1 1241 dated 03.03.2009 the Patiala District Coop Milk Unions Ltd. as per the norms fixed raised a demand @ Rs. 3/-per Itr. on account of royalty/commission charges on the milk purchased from its area by the above noted assessee. A copy of this letter is being enclosed for your perusal and record. Thus it is under this consideration that the assessee has paid commission/royalty to both these milk unions. It may also be submitted here that the assessee has also appointed the Punjab State Coop Milk Producers Federation Ltd., Chandigarh as its consignee agent for the sale of various products in other states i.e. other than Punjab and commission/royalty is also being -paid by the assessee to the Punjab State Coop Milk Producers Fed. Ltd., Chandigarh. The expenditure thus being incidental to the business of the assessee is allowable expenditure within the provisions of section 37 of the Income tax Act it may be submitted here that the assessee while making the payment of commission/royalty has duly deducted the tax at source under the provision of section 194H of the Income Tax Act. I am enclosing herewith copy of the Form 16-A issued by the above noted assessee. The payments of the commission have been made through the banking channels only. This fact is evident from the perusal of the copy of the account of the above noted assessee. A copy of the agreement of consignee/consigner agreement is also being enclosed for your perusal and record. A confirmation from the Milkfed is also being enclosed for your perusal and record". 5. The assessee has further contended that Tax at Source has alsobeen duly deducted while making/crediting the said payments. The Assessing Officer found the explanation of the assessee is untenable and non acceptable due to the following reasons: "Section 37(1) states that any expenditure not being expenditure of the nature described in section 30 to 36 and not being in the nature of capital expenditure or personal expenses of the assessee, laid out or expended wholly and exclusive for the purposes of the business or profession shall be allowed in computing the income Chargeable under the head business or profession. According to this section, the onus is on the assessee to prove that said expenditure has been incurred exclusively and wholly for his business purposes. Therefore, the assessee was asked to discharge this obligation. However, the assessee has failed to furnish any such details which could substantiate its claim. It has even failed to divulge the nature of services etc. rendered by the concerns
ITA No. 487/Chd/2018- Ropar Distt. Cooperative Milk Producers Union Ltd, Mohali
5 to whom commission was paid except the fact that payment of commission to other Milk unions was made as during the year under consideration it had procured milk from the milk shed area falling in the jurisdiction of Patiala and Hoshiarpur Milk Union".
The Assessing Officer further held that for the A.Y. 2009-10 the same issue was discussed reveals that as per letter No. PSF/ACCTTS/A1/2522 dated 30.01.2006 (which was addressed to General Manager Milk Union, Ropar issued by Additional MD of MilkFed}. regarding rates of charges to be levied for use of Verka Trade Mark, it was decided that Trade Mark Charges @ 0.5% on the turnover will be charged instead of high rate of commission w.e.f. F.Y. 2004-05 and the decision was approved by BOD of MilkFed. As per this order, the assessee was not supposed to make commission payment to Milk Fed. (The Punjab State Co-operative Milk Federation Chandigarh) except the payment of Trade Mark Expenses. But in spite of that, it has made huge commission payment to Milkfed. It is pertinent to mention here that the assessee has also made payment of Rs. l,59,15,481/-on account of "Trade Mark Expenses" to Milkfed du ring the year under consideration in compliance to the above order of the Addl. M.D . Milk Fed.
Holding thus the Assessing Officer disallowed the expenses of Rs. 50,08,372/- under the head "Commission Expenses".
The Ld. CIT(A) has confirmed the addition by following the earlier order of the CIT(A) for the AY 2010-11 in appeal No. 184/13-14 vide order dated 15.10.201 4 as under-
6.3 I have considered facts of the issue. The appellant has not explained as to how the findings of the Assessing Officer regarding services rendered in respect of the commission paid are not correct. The plea taken by the appellant is that TDS has been deducted on these payments, does not hold water since deduction of tax at source on any amount does not necessarily entitle the appellant to claim that amount as expenditure. 6.3.2 Commission is an allowance, recompense or reward made to agents, brokers and others for affecting sales and carrying out business transactions. The commission is a fee paid to a third party in exchange for assistance in completing a financial transaction. The appellant
ITA No. 487/Chd/2018- Ropar Distt. Cooperative Milk Producers Union Ltd, Mohali
6 had claimed that the expenses incurred are eligible for deduction u/s 37 of the Act. As per the provisions of section 37(1), expenditure not being in the nature of capital expenditure or personal expenses of the appellant, laid out or expended wholly and exclusively for the purposes of business or profession is to be allowed in computing the income chargeable under the head "business or profession". As per this section, the onus is on the assessee to prove that the expenditure had been incurred wholly and exclusively for its business purposes. In the instant case, the appellant failed to discharge its obligation to substantiate its claim that commission expenses incurred were bonafide and wholly and exclusively for the business purposes of the appellant. Nothing was brought on record before the Assessing Officer or even before the undersigned regarding the Services rendered to the appellant by the Milk Unions, in lieu of / which the commission was paid. The Assessing Officer has rightly disallowed the entire commission expenditure and her action in this regard is upheld. Ground of appeal no. 4 is dismissed. 7.3.1 I am in total agreement with the decision of my predecessor CIT (Appeal) on this point and it is held that the assessing Officer has rightly disallowed the entire commission expenditure and his findings are upheld." 8. Before us the Ld. AR relied on the order of the ITAT for the AY 2010-11 whereas the Ld. AR relied on the order of the Assessing Officer. On the similar issue the Coordinate Bench of ITAT, Chandigarh in ITA No. 1 127/CHD/2014 dt. 23/05/2016 held that
" . the Assessing Officer has also pointed out thatas per the order of Additional M.D., Milk Fed., the assessee was not supposed to make commission payment to MP, Chandigarh, except the payment of trademark expenses, but still huge commission was paid to the said party. The Assessing Officer has categorically observed that the M ilk Fed. has not provided any information to him . The Assessing Officer has also observed that inspite of repeated reminders and requests, the information sought from Milk Fed. was not furnish ed. The only plea taken by the learned counsel for the assesse e is that TDS has been deducted and the above parties
ITA No. 487/Chd/2018- Ropar Distt. Cooperative Milk Producers Union Ltd, Mohali
7 have shown the commission income. Alternatively, the lower authorities s submitted that the authorities s below have not given sufficient opportunity to the assessee to explain the exact nature of its claim. According to him, the assesse e h ad sufficient evidence to prove that the expenditure reclaimed by it had been incurred wholly and exclusively for its business purposes. Considering the entire facts and circumstance s of the present case, we think it appropriate to set aside the findings of the learned CIT (Appeals) on this issue and remand the matter to the Assessing g Officer with a direction to decide the issue afresh in accordance with law, after affording du e and reasonable opportunity of being heard to the assessee . It is also made clear that the assessee is free to produce relevant evidence in support of its claim. We may also add here that the plea taken by the assessee that TD S has been deducted on the disputed payments, is of no consequence, since deduction of tax at source of any amount doe s not necessarily enable the assessee to claim that amount as expenditure. As we have already observed hereinabove that under section 37(1) of the Act onus is on the assessee, claiming such deduction to establish that such payments were made for services rendered. The mere deduction of TD S is not sufficient to prove that the amount in question was incurred wholly and exclusively for the business purposes. We direct the Assessing Officer to pass a speaking order in accordance with law. 9. Since the Assessing Officer and the Ld. CIT(A) held that th e assessee failed to discharge its obligation to substantiate its claim , we respectfully following the order of the Tribunal ( supra ) remand the matter to the Assessing Officer with a direction to decide the issue afresh in accordance with l aw an d in the light of the Tribunal order dt. 15/10/2014 (supra) after affording due and reasonable opportunity of being heard to the assessee. It is also made clear that the assessee is free to produce relevant evidence in support of its claim .
In the result, both the appeals filed by the assessee are allowed for statistical purposes.
ITA No. 487/Chd/2018- Ropar Distt. Cooperative Milk Producers Union Ltd, Mohali 8 6. In view of this, the matter in this appeal is restored to the file of the Assessing Officer with identical directions, as directed vide order
dated 28.8.2017, as reproduced above. The appeal of the assessee is treated as allowed for statistical purposes Order pronounced in the Open Court on 31.10.2019.
Sd/- Sd/- (अ�नपूणा� गु�ता / ANNAPURNA GUPTA) (संजय गग� / SANJAY GARG) लेखा सद�य/ Accountant Member �या�यक सद�य/ Judicial Member Dated : 31.10.2019 “आर.के.” आदेश क� ��त�ल�प अ�े�षत/ Copy of the order forwarded to : 1. अपीलाथ�/ The Appellant 2. ��यथ�/ The Respondent 3. आयकर आयु�त/ CIT 4. आयकर आयु�त (अपील)/ The CIT(A) 5. �वभागीय ��त�न�ध, आयकर अपील�य आ�धकरण, च�डीगढ़/ DR, ITAT, CHANDIGARH 6. गाड� फाईल/ Guard File
आदेशानुसार/ By order, सहायक पंजीकार/ Assistant Registrar