RITU TANEJA,GHAZIABAD vs. ITO, WARD-2(2), GHAZIABAD

Briefly the facts of the case are that assessee is an individual and filed return of income at Rs. 8,78,820/-. The assessee is proprietor of M/s Loan Art and has shown income from providing home loans of various banking and non banking companies to different customers against commission income. Net profit has been shown at Rs. 9,60,362/- against total commission receipt of Rs. 1,54,37,816/- which comes to 6% of the gross commission receipts. It was further observed that there is a steep decline from 11% to 6% in the net profit shown by the assessee as compared to the previous assessment year. The AO noted that in this line of business net profit increases with increase in turnover, since basic establishment expenses have to be incurred even if there is low turnover. From perusal of the profit and loss account, it was found that assessee has claimed very high commission expenses and salary expenses to the tune of Rs. 63,52,632/- and Rs. 51,71,448/- respectively. The commission payable at the end of the year was of Rs. 18 lakhs. The AO asked the assessee to file complete details of the persons to whom commission has been paid along with their ITR, computation of income, confirmation and details of client and work against which the commission has been paid and to produce bills and vouchers. Assessee was also required to produce the persons to whom commission has been shown payable at the end of the year, in order to substantiate the genuineness of expenses claimed by the assessee along with bills and vouchers and agreement with them. The assessee filed list of the commission expenses which contained name of the parties, TDS deduction, Amount of Commission paid and PAN Number. The AO noted that commission expenses shown from serial no. 18 to 25 of the list at page 3 of the assessment order are in round figures. Out of which the name appearing at serial no. 18 i.e. Shri Amit Mehta is the husband of assessee. As per the ledger account, the assessee has paid the payable amount to these parties in subsequent year. The assessee also filed copy of the ITR and computation of income in respect of 7 persons. The perusal of the address shows that most of the 7 persons belong to the same family and at the same address. Even in some of the cases instead of commission, interest has been shown. The assessee did not furnish details regarding agreement and what services have been rendered for making commission payment. The assessee also could not produce these persons to whom commission has been paid. The AO also noted that burden is upon the assessee to prove commission payable are genuine and is required to produce such persons for examination. The AO also noted that even TDS return filed for fourth quarter revealed that TDS has not been paid on time. The AO after considering explanation of assessee noted that commission expenses has been booked on 31.03.2014 and have bee shown payable only at the fag end of the next financial year. The perusal of the addresses shows most of them belong to the same family and in some of the cases interest has been paid instead of commission. The assessee did not produce any commission agreement etc. despite giving opportunity. The assessee failed to discharge onus to prove commission payable shown outstanding as liability in the balance sheet and also failed to produce any of such persons for examination. TDS is also not paid in time. The AO, accordingly, disallowed the commission payable to the extent of Rs. 20 lakhs which includes Rs. 18 lakhs commission payable and Rs. 2 lakh at TDS.

The AO also found that assessee has paid salary expenses of Rs. 51,71,448/- during assessment year under appeal. In earlier year assessee has paid salary expenses of Rs. 16,48,128/- against gross commission of Rs. 72,36,680/-. The assessee was asked to produce list of the employees, their designation and details of salary paid but the same could not be substantiated through any evidence. The assessee failed to produce attendance register and receipts given by the employees against payment of salary. The AO, accordingly, disallowed 30% out of the salary paid and made addition of Rs. 15,51,434/- .

Both the additions were challenged before Ld. CIT(A). The Ld. CIT(A) partly allowed the appeal of the assessee. The findings of CIT(A) in para 5.1 of the appellate order is reproduced as under: “5.1 Ground nos. 1 & 2: The appellant has challenged disallowance of commission and salary of Rs. 15,51,434/- and Rs. 20,00,000/- respectively. During the course of appellate proceedings it has been argued that these expenses are business expenses allowable u/s 37. Examination of facts reveals that AO examined expenses considering the steep decline in profit from 11% in the previous year to 6% during the year and AO observed that commission has been paid to some person covered by 40A(2)(b) and expenses were found to be payable as on 31.03.2014. In respect of commission documents furnished by the appellant during assessment proceedings as well as during appellate proceedings did not prove the services rendered by seven persons. Merely the deduction of TDS does not justify that expenditure has not incurred

On the other hand, Ld. DR relied upon the orders of the authorities below.

I have considered the rival submissions. It is not in dispute that in assessment year under appeal assessee received gross commission of Rs. 1.54 crores. In preceding assessment year assessee received gross commission of Rs. 72,36,680/-. The AO noted that there is a steep decline in gross profit because it has fallen from 11% to 6% in assessment year under appeal as compared to earlier years. The AO found that expenses have been increased as compared to the commission received. The assessee has shown Rs. 18 lakhs as commission payable at the end of the year and Rs. 2 lakhs as TDS on the same which was paid belatedly. The assessee could not produce those persons to whom commission was shown payable at the end of the year. The assessee failed to produce any evidence as to what services those commission agents have rendered for the business of the assessee. The amounts have been paid to them subsequently. These persons are related persons with the assessee and even one of the person is the husband of assessee. Since the assessee failed to produce relevant evidences and also failed to produce such persons for examination before the AO, therefore, the onus upon assessee to prove genuine commission was payable have not been discharged by the assessee. Merely because assessee dedycted TDS would not justified that expenses have been incurred wholly and exclusively for the purpose of business. Thus, commission payable has been rightly disallowed by the authorities below. The assessee in respect of the salary paid has failed to provide complete details before AO as well as failed to produce attendance register and the receipts given by the employees against payment of salary. The Ld. CIT(A) has already given sufficient benefit to the assessee. It may be noted here that assessee has received gross commission of Rs. 1.54 crores against which net profit has been shown at Rs. 9,60,362/- and return of income has been filed at Rs. 8,78,820/-. It, therefore, appears that the assessee has parted with the substantial gross commission to others and has earned net profit at a meager figure. The assessee could not justify fall in the profit rate in assessment year under appeal to the satisfaction of the authorities below. No prudent person who has earned commission in crore would pay such an amount to others to earn only Rs. 8.78 lakhs. The history of the assessee noted above clearly show that assessee failed to produce any documentary evidences before the authorities below to justify the commission payable and salary to the above extent. In absence of production of such persons for examination before the AO also cast doubt in the explanation of the assessee that expenses have been incurred wholly and exclusively for the purpose of business of the assessee. It would, therefore, show that assessee has inflated the expenses just to reduce the taxable income. No interference is required in the matter. I, therefore, confirm the order of Ld. CIT(A) and dismissed the appeal of assessee.

In the result, the appeal of assessee is dismissed.