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Before: SHRI H.S. SIDHU & SHRI L.P. SAHU
O R D E R PER H.S. SIDHU, JM
This appeal filed by the Assessee is directed against the Order dated 27.2.2015 of the Ld. CIT(A)-4, New Delhi relevant to assessment year 2010-11 on the following grounds:-
1. That the Ld. CIT(A) had illegally assumed jurisdiction to make addition / disallowance in the hands of the assessee, by doubting the genuineness of the commission paid by the assessee to M/s Sumiti Alloys (P) Ltd. particularly when (i) the AO had not made any addition / disallowance on account of commission paid by the assessee to M/s Sumiti Alloys (P) Ltd.
and (ii) the adhoc disallowance made by the AO @ 5% was deleted by the Ld. CIT(A).
That the addition / disallowance made by the Ld. CIT(A), without issuing any specific notice to the assessee, is unsustainable.
That on the facts of the case and under the law, the entire expenses incurred and claimed by the assessee on account of commission, ought to had been allowed.
4. That the Ld. CIT(A) had erred in picking up the figure of Rs. 90,72,893/- to make addition / disallowance in respect of commission paid to M/s Sumiti Alloys (P) Ltd., particularly when the assessee had claimed such expenses to the tune of Rs. 82,25,651/- only.
That there was no justification on the part of the Ld. CIT(A), to not allow expenses of Rs. 29,87,722/- (being the amount of commission worked out @6% in respect of export sales of Rs. 4,97,95,361/-), particularly when the Ld. CIT(A) had done so solely on presumption / assumption basis, without bringing on record any adverse material.
2. The brief facts of the case are that the assessee company filed its return of income declaring an income of Rs. 1,78,46,289/- on 28.9.2010. The case of the assessee was selected for scrutiny and notice u/s. 143(2) of the Income Tax Act, 1961 (in Short “Act”) was issued on 29.8.2011. Again notice u/s. 143(2) of the Act alongwith questionnaire u/s. 142(1) of the Act was issued on 7.11.2012. In response to notices, the A.R. of the assessee appeared from time to time and filed the requisite details. Assessee is engaged in the 2 business of manufacturing / sale of MS pipes and GS pipes. The AO, on examination of the P&L account, observed that the assessee had claimed commission on sales amounting to Rs. 1,26,58,965/-. Vide letter dated 27.12.2012, the assessee was asked to furnish party wise details of commission paid and TDS made thereon. The AO further observed that TDS was duly deducted on such payments. However, he was not satisfied with the details of quantum of sale, on which corresponding commission was claimed by the assessee. Accordingly, vide order sheet entry dated 19.2.2013, the assessee was asked to furnish sales wise details of payment of commission and in the absence of the same, relying upon his own decision in the immediately preceding year, 5% of commission, amounting to Rs. 6,32,948/- was disallowed and added back to the total income of the assessee. Against the AO’s order, the Assessee appealed before the Ld. CIT(A), who vide his impugned order 27.2.2015 has enhanced the disallowance of commission on sales in respect of sales claimed to have been made through M/s Sumiti Alloys (P) Ltd. He further held that since the AO had already made disallowance of Rs. 6,32,948/-, the net enhancement made amounts to Rs. 84,39,945/- and statistically disallowed the appeal of the Assessee. Aggrieved with the impugned order of the Ld. CIT(A), assessee is in appeal before the Tribunal.
3. Ld. Counsel for the Assessee submitted that Ld. CIT(A) had illegally assumed jurisdiction to make addition / disallowance in the hands of the assessee, by doubting the genuineness of the commission paid by the assessee to M/s Sumiti Alloys (P) Ltd. particularly when (i) the AO had not made any addition / disallowance on account of 3 commission paid by the assessee to M/s Sumiti Alloys (P) Ltd. and (ii) the adhoc disallowance made by the AO @ 5% was deleted by the Ld. CIT(A). He further submitted that the addition / disallowance made by the Ld. CIT(A), without issuing any specific notice to the assessee, is unsustainable. It was further submitted that on the facts of the case and under the law, the entire expenses incurred and claimed by the assessee on account of commission, ought to had been allowed. It was also the submission of the Ld. Counsel for the assessee that Ld. CIT(A) had erred in picking up the figure of Rs. 90,72,893/- to make addition / disallowance in respect of commission paid to M/s Sumiti Alloys (P) Ltd., particularly when the assessee had claimed such expenses to the tune of Rs. 82,25,651/- only. It was further submitted that that there was no justification on the part of the Ld. CIT(A), to not allow expenses of Rs. 29,87,722/- (being the amount of commission worked out @6% in respect of export sales of Rs. 4,97,95,361/-), particularly when the Ld. CIT(A) had done so solely on presumption / assumption basis, without bringing on record any adverse material. In view of the above, the requested that the impugned order may be cancelled and the appeal of the Assessee may be allowed.
On the other Ld. DR relied upon the order of the Ld. CIT(A) and stated that he has rightly enhanced the addition in dispute.
5. We have heard both the parties and perused the records especially the Ld. CIT(A)’s order wherein he has enhanced the addition and the Affidavit filed by the Assessee wherein it was stated that no appeal against the appellate order dated 7.5.2013 was passed by the Ld. CIT(A) in the case of M/s Garg Tubes Limited for AY 2009-10, was filed by the AO before the Tribunal; no notice u/s. 147 of the Act for AY 2009-10 was received by M/s Garg Tubes Limited from the AO and no notice u/s. 263 of the Act for AY 2009-10 was received by M/s Garg Tubes Limited from the Ld. (PCIT), hence, the appellate order dated 7.5.2013 which was passed by the Ld. CIT(A) for AY 2009-10, had attained finality. We find that during the course of assessment proceedings, the AO had observed that in the immediately preceding year, adhoc disallowance @ 5% was made out of commission expenses claimed by the assessee. Following the assessment order for immediately preceding year, the A.O. had disallowed the commission expenses to the extent of 5% of total commission, with the remarks “Hence, like immediately preceding year 5% of total commission paid i.e. Rs. 6,32,948/- is disallowed and added back to the total amount of the assessee company.’’ By the time the A.O. had passed the assessment order dt. 28.02.2013 for A.Y. 2010-11, the appellate order for A.Y. 2009-10 was not passed by the Ld CIT(A). The Ld CIT(A) had passed the appellate order for A.Y. 2009-10 on 07.05.2013, through which he had deleted the disallowance of Rs. 13,95,103/-. During the course of appellate proceedings for A.Y. 2010-11, the assessee had furnished photocopy of the appellate order dt. 07.05.2013 for A.Y. 2009-10 to the Ld. CIT(A). The Ld. CIT(A) had deleted the disallowance made by the A.O. for A.Y. 2011-12, but at the same time he had made addition /disallowance of Rs. 90,72,893/- representing the gross amount of commission charged by M/s Sumiti Alloys (P) Ltd. Prior to doing so, the Ld. CIT(A) had not issued notice to the assessee requiring it to show cause as to why it’s income, as determined by the A.O., may not be enhanced. We are of the considered view that as per sub section (2) of section 251, the Commissioner Appeals cannot not enhance an assessment unless the appellant has had a reasonable opportunity of showing cause against such enhancement. Hence, the action of the Ld. CIT(A), making enhancement of income as determined by the A.O., is illegal. This view is fortified by the following decisions:-
- Gedore Tools Pvt. Ltd. Vs. CIT Hon’ble Delhi High Court 238 ITR 268
- Spandana Foundation Vs. ADIT ITAT Hyderabad Bench [2013] 36 taxmann.com370 Order dt. 28.06.2013
Naresh Sunderlal Chug Vs. ITO ITAT Pune Bench 2014 Order dt. 12.04.2018
- Singhania Alu Foil Containers Manufacturing Company ITAT Delhi Bench Order dt. 12.04.2018
It was further noted that M/s Sumiti Alloys (P) Ltd. (who was in no way related to the assessee) had rendered services to the assessee and charged commission for the first time for F.Y. 2009-10. As a matter of fact, M/s Sumiti Alloys (P) Ltd. had rendered services to the assessee in past also i.e. for F.Y. 2008-09, for which it had charged commission of Rs. 1,15,09,628/- from the assessee. We further note that at the back of the assessee, the Ld. CIT(A) had made inquiries from the Irrigation Department, Jal Sansthan Uttarakhand and Jal Nigam Uttar Pradesh, by issuing letter dt. 30.06.2014 u/s 133(6). The Ld. CIT(A) had reproduced his said letter in para 5.5 of the appellate order. As per para 2 of the said letter, the Ld. CIT(A) had stated that M/s Garg Tubes Limited has claimed that it had made sales to the offices of various Executive Engineers, though an intermediary - M/s Sumiti Alloys (P). Ltd. As per para 4 of the said letter, the Ld. CIT(A) had asked the concerned officials to inform him that “as to whether they have procured any material from M/s Garg Tubes Limited through any inter-mediatory party or not. If so they may be asked to furnish details of such party”. A bare reading of para 5.7, 5.7.2 and 5.8 of the appellate order suggests that the Ld. CIT(A) had misdirected himself to ask various departments of Jal Sansthan / Jal Nigam to confirm as to whether Garg Tubes Limited had made supplies through Intermediary M/s Sumiti Alloys (P). Ltd. We further note that in para 5.9 of the appellate order, the Ld. CIT(A) had acknowledged to had received a Certificate from M/s Sumiti Alloy (P) Ltd. confirming that it had been rendering services to Garg Tubes Limited thereby facilitating to make sales. The assessee had clarified to the Ld CIT(A) that M/s Sumiti Alloys (P) Ltd. had rendered services to it, and not to Jal Sansthan / Jal Nigam, and thus claimed that the information asked for from Jal Sansthan / Jal Nigam was not useful. In para 6.3 of the appellate order, the Ld. CIT(A) had recorded that “Therefore, to claim that commission was made to an intermediary party with regard facilitation of sales to Government Departments, is suspicious as it is not envisaged by the GFR”. In para 6.5 of the appellate order, the Ld. CIT(A) had mentioned that “under the circumstances, it cannot be held that such commission on sales paid to M/s Sumiti Alloys with regard sales made to the above Govt. Authority was wholly & exclusively for business purpose and therefore, such commission cannot be allowed u/s 37(1)”. In this context, it is noted that in F.Y. 2008-09, the assessee had decided to take services of M/s Sumiti Alloys (P) Ltd., while agreeing to be charged @ 6% of the sales (domestic and export) made by it. Accordingly, the assessee had paid commission of Rs.1,51,09,628/- for F.Y. 2008-09 and Rs.82,25,651/- for F.Y. 2009- 10, to M/s Sumiti Alloys Pvt. Ltd. Even it is settled law that Revenue cannot prescribe what expenditure should an assessee incur and under what circumstances. This view is fortified by the decision of Hon’ble Supreme Court in the case of CIT Vs. Dhanrajgiiji Raja Narasingirji [91 ITR 544], wherein it was held “it was for the assessee to decide how best to protect his own interest”. We further note that, Mumbai Bench of the Tribunal in the case of Shahrukh Khan Vs. CIT [I.T.A. No. 623/ Mum/2013] has also taken such view. The commercial expediency guides the allowability of expenses u/s 37(1). Also a perusal of the Certificate dt. 06.10.2016 issued by M/s Sumiti Alloys (P) Ltd. reveals that it had clearly mentioned that (i) it had rendered services to Garg Tubes Ltd. thereby facilitating it to make sale of their products -Steel Tubes to Jal Nigam/Jal Sansthan (ii) it had been agreed between them that it will be entitled to charge 6% of the total amount of the sales effected by Garg Tubes Ltd., for which it had rendered services; (iii) it had charged commission of Rs. 1,51,09,628/- for F.Y. 2008-09 and Rs. 82,25,651/- for F.Y. 2009-10 from M/s Garg Tubes Ltd;, and (iv) M/s Garg Tubes Ltd. had deducted tax at source. Therefore, it is an undisputed fact that the expenditure incurred / claimed by the assessee for F.Y. 2008-09 on account of commission of Rs. 1,51,09,623/- paid to M/s Sumiti Alloys (P) Ltd. stood accepted, in as much as no action had been taken against this issue. Under identical circumstances, the assessee had incurred/claimed expenses on account of commission of Rs. 82,25,651/- paid to M/s Sumiti Alloys (P) Ltd. for F.Y. 2009-10. For the sake of consistency, the same view should be continued to prevail in subsequent year i.e. for F.Y. 2009-10 relevant to A.Y. 2010-11. Hence, we place reliance on the decision of Hon’ble Delhi High Court in the case of CIT Vs. Neo Poly Pack Pvt. Ltd. [245 ITR 492]. In our view, though the A.O. had made up his mind not to allow the expenses incurred /claimed by the assessee on account of commission charged by M/s Sumiti Alloys (P) Ltd., yet he had picked up the gross figure of Rs.90,72,893/- while overlooking the fact that service tax amounting to Rs. 8,47,242/- was included in the total figure of Rs. 90,72,893/-. It may be worth pointing out here that the assessee had claimed expenses to the tune of Rs. 82,25,651/- through its P & L Account (and not Rs. 90,72,893/-) the details of which are as under:-
Particulars Commission (Rs.) Basis of Commission Domestic Sales 52,37,929 6% of Rs. 8,72,98,816/- Export sales 29,87,722 6% of Rs. 4,97,95,361/-
82,25,651
We further note that in para 6.6 of the appellate order, the Ld. CIT(A) had touched the issue relating to commission on export sales, and recorded “However keeping in view the fact that the said Sumiti Alloys (P) Ltd. is based at Ghaziabad and there is no evidence in support of its experience/connections for enabling export sales, commission on export sales also does not appear genuine, in the light of the finding of enquiry made above, which shows that the said partly had colluded with appellant in fraudulently providing entry for commission payment”. In this context, it is noted that the Ld CIT(A)’ remarks “does not appear genuine”, itself shows that even the Ld. CIT(A) was not sure that such expense was non-genuine. Moreover, the Ld CIT(A) had not brought on record any evidence/ material to show that such expenses were not genuine.
In the background of the aforesaid discussions and respectfully following the precedents, we quash the order of the Ld. CIT(A) on legal ground as well as on merit. Hence, the addition in dispute is hereby deleted.
In the result, the Appeal of the assessee is allowed. Order pronounced in the Open Court on 29-10-2018.