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Income Tax Appellate Tribunal, DELHI BENCH ‘C’, NEW DELHI
Before: Ms. Suchitra KambleDr. B. R. R. Kumar
Per Dr. B.R.R. Kumar, Accountant Member:
The present appeals have been filed by the revenue against the orders of ld. CIT (A)-39, New Delhi dated 22.02.2017.
2. Since, the issue involved in both the appeals is similar, they were heard together and are being disposed off by the common order.
2 & 3833/Del/2017 Impulse India & International Pvt. Ltd. 3. In , following grounds have been raised by the revenue:
1. On the facts and circumstances of the case, the ld. CIT (A) has erred in deleting the disallowance of remuneration paid to directors, amounting to Rs.2,73,75,975/-.”
4. In following grounds have been raised by the revenue:
1. On the facts and circumstances of the case, the ld. CIT (A) has erred in deleting the disallowance of remuneration paid to directors, amounting to Rs.6,17,06,124/-.”
5. At the outset, it was brought to our notice that the solitary issue involved in both the appeals stands covered by the earlier order of the ITAT in in the case of the assessee for the assessment year 2009-10 vide order dated 12.03.2019.
Brief facts of the case are that during the year under consideration, the assessee, paid commission of Rs.6,17,06,124 to directors, Sh. Sunil Arora (Rs.71,71,656), Mr. Rajiv Suri (Rs.4,48,22,850) and Ms. Jyotsna Suri (Rs.97,11,618)] for the services rendered on the basis of their expertise in the field. The same was also in accordance with the Board Resolution passed by the assessed for the year under consideration. The commission and consultancy income earned by the assessee company was Rs.29.98 crores on the export orders value of Rs.589.79 crores. The commission payment is 1.05% of the value of the orders procured and executed by the company.
3 & 3833/Del/2017 Impulse India & International Pvt. Ltd. 7. The assessing officer in the impugned order dated 12.01.2015, invoked the provision of section 36(1)(ii) and disallowed the aforesaid commission on the ground that the assessee had resorted to pay commission in order to divert money in the hands of directors and avoid payment of dividend distribution tax.
8. On appeal, the CIT(A) vide order dated 22.02.2017 deleted the disallowance of commission made by the AO based on the order of the ld. CIT(A) for AYs 2010-11 and 2011-12 where in identical facts, disallowance of commission was deleted.
9. The Tribunal in the earlier order held that the disallowance of commission was not justified on the following grounds:
That the assessee company was free to determine the rates of salary, remuneration, commission to the Director paid by the assessee was in accordance with the Board Resolution.
The Directors possessed the requisite qualifications and their contribution in obtaining the orders and contributed to increase in turnover. 3. The Directors had also paid tax on the commission payments at the maximum marginal rate and thus, there was no revenue loss and even if assessee had paid dividend instead of commission, payment of such dividend would have been tax-free to directors, whereas the rate of DDT in the hands of the assessee was 15% which does not lead to any tax avoidance.
For the sake of ready reference, the relevant portion of the order of the ITAT in in the case of the assessee is reproduced as under: “Grounds relating to commission to Directors
2. The assessee company is a buying Agent in respect of abroad based clients and engaged in the business of Consultancy and Commission Income.
During the assessment year the Assessing Officer observed that the Assessee Company has paid commission expenses which have been in excess of the market rates and disallowed the amount under section 36(1)(ii). The Assessing Officer has considered that an amount of 15% increase is adequate and the remaining amount is held to be unreasonable and excessive and made addition under the provisions of section 40A(2)(b). For the A.Y. 2010-11 the Assessing Officer has also held that the assessee has tried to evade dividend distribution tax under section 115-O by the way of giving the commission which is far more excessive.
We have gone through the records before us and the submissions of the Assessee taken before lower authorities.
The commission was paid to the Directors namely Shri. Rajiv Suri, Shri. Sunil Arora and Smt. Jyotsna Suri in various years. The qualifications and contributions are as under:
(i) Mr. Rajive Suri-Managing Director He is the Managing Director of the assessee Company and has over 32 years of experience working in the Apparel Industry and has excellent relations with renowned international retail chains in Europe and America. The services provided by him are as under:
5 & 3833/Del/2017 Impulse India & International Pvt. Ltd. • Guiding the assessee and providing strategic inputs for the growth and development of the business of the assessee. • Negotiation of the buying agency terms with the Overseas buyers. • Client relationship with Overseas buyers, • Service provided by Mrs. Jyotsna Suri –Director (ii). Ms. Jyotsna Suri – Director She has experience of over 30 years in the Apparel Industry. The services provided by her are as under: i. Designing & Development ii. Quality control iii. Assisting in functional expertise to ensure that the export orders procured from the Overseas buyers are executed in time. iv. Supply chain management (iii) Mr. Sunil Arora He, as a Director has experience of over 25 years in the Apparel Industry and has instrumental in further developing its business. The services provided by are as under:
• Marketing and procurement of export orders. • Negotiation of the buying agency terms with the Overseas Buyers • Client relationship with the Overseas Buyers • Supply chain management
6. It was submitted that the assessee is in the buying house trade which is more than 40 years old, there are only a few companies which have attained the size of the assessee in terms of the export orders executed and commission earned thereon. It was stated that the assessee is among the top 10 buying houses in India which include global giants like William Connors and Li & Fung which has been possible purely due to the efforts made by the directors and their contacts with the overseas buyers. Considering the contribution made by above directors for the growth and development of business Further on the allegation that the excess payment of commission is made in lieu of dividend income, it was submitted before the Ld. CIT(A) which is reproduced as under:
"It is submitted that Mr. Rajive Suri, Chairman of the assessee is having experience of over 32 years in the Buying Agency Business and holds 16.52% shares in the assessee while the Managing Director, Mr. Sunil Arora and the director Mrs. Jyotsna Suri held 19.96% and 16.28% shares respectively in the assessee. The assessee has paid commission of Rs.4,56,22,500/- to Mr. Rajive Suri while Commission of Rs.94,01,000/- and Rs.1,17,51,250/- was paid to Mr. Sunil Arora and. Jyotsna Suri, respectively. This itself proves that the commission paid to the directors has no relation to the shares held by them in the assessee.
It is submitted that the Ld. Assessing officer has formed an opinion on an arbitrarily basis without bringing any documentary evidence on record to show that the commission paid to the directors is unreasonable and highly excessive. The Ld Assessing Officer has wrongly and erroneously concluded on assumptions and presumptions that the commission paid to them was for the investment made by them in the assessee and not for the services rendered by them without bringing any documentary evidence on record. The Ld Assessing Officer has failed to appreciate the fact that the commission paid to the directors was for the actual services rendered by them and not for the investment made by them in the assessee. The Ld. A.O. has not held any where in the assessment orders that the two directors did not render services to the assessee”.
In view of the aforesaid, it is submitted that if commission has been paid to an employee, in lieu of services rendered, same is deductible without any restriction. If such employee happens to be a 7 & 3833/Del/2017 Impulse India & International Pvt. Ltd. shareholder, deduction under section 36 (1) (ii) of the Act is also allowed, if bonus or commission was paid in lieu of services rendered by the employee/director and not by way of share of profit.
7.1 It is submitted that the Ld. Assessing Officer has arbitrarily formed an opinion that the commission if not paid, would have been payable as dividend ignoring the fact that the payment of dividend is under the provisions of Companies Act and is within the discretionary powers of the board. A shareholder of a company makes an investment when he purchases shares and is entitled to dividend on the said investment. Dividend is payable as per and in accordance with the provisions of the Companies Act, 1956. The Board proposes payment of dividend and the rate thereof and thereafter it is approved by the shareholders. It is submitted that it is not mandatory to pay dividend and moreover, the Companies Act, 1956 does not stipulate that dividend must be paid. Payment of salary to the directors is for the work and actual services rendered by them to the company. It is a contractual obligation but can be regulated by law. It is further submitted that the nature of the two payments, i.e. "dividend" and "salary" are entirely different.
7.2 It is submitted that there is no basis or material or evidence brought on record by Assessing Officer to support this contention that the commission would have been paid as dividend to the shareholders. Companies Act, 1956 contains the limitations and restriction in the matter of payment of dividend and such discretion of the company either to pay or not to pay dividend cannot be assumed. Assessing Officer cannot presume that had this commission not been paid, this would have necessarily been paid as dividend to the shareholders. There is no basis for this assumption.
Ld. DR strongly supported the orders of the Assessing Officer.
Primarily we also hold that the Revenue’s contention that the assessee is bound by Section 198
8 & 3833/Del/2017 Impulse India & International Pvt. Ltd. and Section 309 of the Companies Act, is not applicable owing to the reading of the relevant provisions. The provisions read as under:
Section 198(1) in the Companies Act, 1956 (1) The total managerial remuneration payable by a public company or a private company which is a subsidiary of a public company, to its directors and its 5 managing agent, secretaries and treasurers or manager in respect of any financial year shall not exceed eleven per cent. of the net profits of that company for that financial year computed in the manner laid down in sections 349, 350 and 351, except that the remuneration of the directors shall not be deducted from the gross profits: Provided that nothing in this section shall affect the operation of sections 352 to 354 and 356 to 360.
Section 309 in the Companies Act, 1956
Remuneration of directors.
(1) The remuneration payable to the directors of a company, including any managing or whole- time director, shall be determined, in accordance with and subject to the provisions of section 198 and this section, either by the articles of the company, or by a resolution or, if the articles so require, by a special resolution, passed by the company in general meeting 1 and the remuneration payable to any such director determined as aforesaid shall be inclusive of the remuneration payable to such director for services rendered by him in any other capacity: Provided that any remuneration for services rendered by any such director in any other capacity shall not be so included if- (a) the services rendered are of a professional nature, and (b) in the opinion of the Central Government, the director possesses the requisite qualifications for the practice of, the profession].
9 & 3833/Del/2017 Impulse India & International Pvt. Ltd. 9.1 The above provisions of section 198 and 309 are not applicable to the assessee company as the assessee being neither a public company nor a private company which is the subsidiary of a public company hence are not applicable and neither received any payment beyond the provisions of sub section 1(a) of section 309.
9.2 Further we also find that as per the Board Resolution maximum commission of 27% over the turnover can be paid to the Directors whereas the total payments is only 1.25% of the value of the export orders achieved by them. The Assessing Officer has not brought anything on record nor gathered any evidence about the contribution of the Directors which goes contra to the payments they received. The Assessing Officer has not brought any comparative cases to determine as to how the commission paid to the Directors is excessive. There is no doubt about the qualifications and contribution of the Directors for obtaining the orders and increasing the turnovers. The payment of commission has been the practice of the company for the past seven years. The Directors who have been receiving the commission are also paying tax at the maximum merchant rate so as the company hence no revenue leakage could also be found based on the tax payments. Even the dividend distribution tax in the hands of the company @ 12.5% and tax free in the hands of the recipient would not be give any credence to the alleged surreptious tax planning. Increase in personal expenses and comparing it with the increase in Directors remuneration cannot be accepted as a methodology to calculate the reasonable remuneration. The company can determine the rates of salary, 6 remuneration, commission as long as it doesn’t infarct any law enforce which is the case of the assessee. Hence we hereby delete the addition made by the Assessing Officer and hold that no interference is called for pertaining to the commission paid by the assessee to the Directors.”
10 & 3833/Del/2017 Impulse India & International Pvt. Ltd. 11. In the absence of any material change in the facts of the case and the legal propositions, we decline to interfere with the order of the ld. CIT (A).
In the result, the both appeals of the revenue are dismissed. Order Pronounced in the Open Court on 16/06/2020.