M/S. ARIHANT ELECTRICALS,NEW DELHI vs. JCIT, NEW DELHI

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH: ‘A’, NEW DELHI BEFORE SH. AMIT SHUKLA, JUDICIAL MEMBER AND SH. O.P. KANT, ACCOUNTANT MEMBER Assessment Year: 2010-11 Vs. JCIT, Range -30, New Delhi M/s. Arihant Electricals, C/o- M/s. RRA Tax India, D-28, South Extension, Part-1, New Delhi PAN : AAAFA2753N (Appellant) (Respondent) Appellant by Dr. Rakesh Gupta & Sh. Shaantanu Jain, Advocates Respondent by Sh. Subhakant Sahu, Sr.DR Date of hearing 12.12.2017 Date of pronouncement 21.12.2017 ORDER PER O.P. KANT, A.M.:

This appeal by the assessee is directed against order dated 05/11/2014 passed by the Ld. Commissioner of Income-tax( Appeals)- XXV, New Delhi[ in short the Ld. CIT-(A)] for assessment year 2010-11 raising following grounds:

1. That having regard to the facts and circumstances of the case, Ld. CIT(A) has erred in law and on facts in confirming the action of Ld. AO in making estimated and ad-hoc disallowance of Rs. 16,09,778/- on account of commission expenses and that too by recording incorrect facts and findings and without giving adequate opportunity of hearing and without bringing any adverse material on record and without considering the submissions of assessee.

2. That having regard to the facts and circumstances of the case, Ld. CIT(A) has erred in law and on facts in confirming the action of Ld. AO in making disallowance of Rs.38.000/- on account of Diwali expenses and that too without any basis and by recording incorrect facts and findings.

2. Briefly stated facts of the case as culled out from the order of the lower authorities are that the assessee, i.e., a partnership firm was engaged in trading of electrical goods. The assessee filed return of income on 30/09/2010, declaring total income of Rs.1,37,22,030/-. The case of the assessee was selected for scrutiny and notice under section 143(2) of the Income-tax Act, 1961 (in short ‘the Act’) was issued and complied with. In the assessment completed under section 143(3) of the Act on 25/03/2013, the Assessing Officer made certain additions and assessed the total income at Rs.1,57,59,810/-. Aggrieved, the assessee filed appeal before the Ld. CIT(A) who sustained part of the additions. Aggrieved with the order of the Ld. CIT(A), the assessee is in appeal before the Tribunal raising the grounds as reproduced above.

3. The ground No. 1 relates to disallowance of Rs.16,09,778/- on account of commission expenses.

3.1 The Assessing Officer noticed commission expenses of Rs.22,09,778/- debited in profit and loss account. The Assessing Officer asked following information for justifying the commission expenses: 1) Full details of services provided by the Agents to you 2) Details of clients arranged, sales orders procured by each such agent. 3) Copies of agreement entered into with them. 4) Correspondence made with such agents. 5) Details regarding basis of commission paid. 6) Whether your agents as referred to above provided similar services to any other party (other than you.) 3.2 The assessee filed copy of the Ledger account of the commission expenses and information related to deduction of tax at source (TDS) on such commission. According to the information, TDS on Rs.16,54,268/- was deducted as per the rate applicable for commission and TDS on Rs.5,63,000/- was deducted as per the rate applicable for salary. 3.3 According to the Assessing Officer, the assessee did not furnish reply of the queries related to justification of the commission expenses. He further observed that the assessee even did not produce the vouchers in respect of the commission expenses, however keeping in view the business of the assessee, he did not rule out payment of some commission, and accordingly he allowed commission of Rs.6,00,000/- is incurred genuinely and disallowed the balance amount of Rs.16,09,778/- out of the commission expenses and added back to the total income of the assessee. 3.4 Before the Ld. CIT(A), the assessee made a detailed submission for justification of commission expenses. The assessee filed names, addresses, PAN of the persons to whom commission was paid, details of Tax deducted on such payment, copy of Ledger accounts, sales made corresponding to the commission paid to the parties, copies of return of income or intimation u/s 143(1) of the Act in case of persons to whom commission was paid, vouchers of commission payment etc. The ld. CIT(A) has reproduced the entire submission of the assessee in the impugned order. The assessee contested that commission amount was paid to the persons for the services rendered by them. According to the assessee, those agents ensured business to the assessee and payment from the parties and in order to minimize the risk, for business expediency and liaison work, commission was paid to those agents. The assessee submitted that for verification of the services rendered the Assessing Officer could have made independent inquiries from those parties but he did not. The assessee submitted that there was no written agreement with those agents. According to the assessee, all those parties to whom commission on sales was paid, were assessed to tax and they had shown commission receipt in their hands. The assessee also relied on the various judicial pronouncements in its submissions. In view of the submissions, the assessee requested before the ld. CIT(A) for allowing the commission payment. 3.5 The Ld. CIT(A) after considering the submission of the assessee observed that entire information in respect of the commission payment was not submitted before the Assessing Officer. The relevant finding of the learned CIT(A) is reproduced as under:

“As against the above the appellant contended that it had produced all the requisite evidence relating to the commission payments before the AG in the course of assessment proceedings. A paper book was filed wherein description of the details filed before the AO in respect of these payments was given. On a perusal of the paper book it was noticed that the claim of the appellant that the entire details regarding commission payments were produced before the AO during assessment proceedings was not correct, Pages 154 to 156 of the paper book containing the correspondences made by the appellant with the AO during scrutiny assessments revealed that the appellant did not provide sufficient relevant details to the AO during the hearing to prove the genuineness of above commission payments.”

3.6 Simultaneously, the learned CIT(A) analyzed the information filed by the assessee. The observation of the Ld. CIT(A) are summarized as under:

1. 1. The return of income filed by the commission agents did not indicate the nature of income.

2. The profit and loss account and bank statement of all such agents were missing.

3. Confirmations of the commission agent were missing 4. On the vouchers or the purchase orders issued by the buyers of electrical goods, name of the commission agent was not specified.

5. The buyers like BHEL, HINDALCO, etc purchased goods to tender and involvement of commission agent is ruled out in case of such buyers. 3.7 In view of the above observation, the Ld. CIT(A) held that the claim of commission expenses of Rs.22,09,778/- was not entirely genuine and accordingly, he upheld the disallowance of Rs.16,09,778/- made by the Assessing Officer. 3.8 Before us, the Ld. counsel of the assessee referring to the ground submitted that addition has been sustained by the Ld. CIT(A) without providing adequate opportunity of being heard and without considering the submission of the assessee. He submitted a paper book containing pages 1 to 193. He referred to pages 38 to 143 of the paper book and submitted that the assessee has discharged its onus of justifying the commission expenses paid to the commission agents and therefore, the expenses should be allowed to the assessee. Alternatively, he submitted that issue may be restored to the file of the Assessing Officer for detailed verification of the evidences filed by the assessee. 3.9 Ld. Sr. DR, on the other hand, relied on the order of the lower authorities and submitted that the evidences filed by the assessee could not justify the commission expenditure. He submitted that return of income of those commission agents did not contain commission income. 3.10 We have heard the rival submission and perused the relevant material on record. We find that the Ld. CIT(A) observed that certain details in respect of the commission payment which were filed before him, had not been produced before the Assessing Officer. In such circumstances, the Ld. CIT(A) should have asked the assessee for filing application for additional evidences under Rule 46A of Income Tax Rules, 1962 and should have called for a remand report from the Assessing Officer. Simultaneously, we find that the Ld. CIT(A) noted one of the reason for sustaining the disallowance as the commission income was not reflected in the return of income filed by the commission agent. In our opinion, the Ld. CIT(A) should have provided further opportunity to the assessee for justifying the fact that income of commission agents included commission income. Further, the assessee requested before the Assessing Officer to produce the commission agent for verification however the Assessing Officer did not issue any summons to those parties. We find that the assessee has filed detailed submission alongwith evidences for justification of the commission expenses, and thus, Ld. CIT(A) was not justified in not considering all those evidences. The finding of the ld. CIT(A) that, buyer like, BHEL, HINDALCO etc. buy the goods without involvement of commission agent, is not based on any enquiry or evidence gathered. In our opinion, if the learned CIT(A) was not satisfied with documents submitted by the assessee, he should have remanded the matter to the Assessing Officer for carrying out examination/cross-examination of those commission agent in the light of the evidences filed by the assessee. 3.11 In view of above facts and circumstances, we find that addition has been sustained without providing sufficient opportunity to the assessee and without considering submission of the assessee as well as without following the procedure under Rule 46A of Income-tax Rules, hence we feel it appropriate to restore the issue to the file of the learned CIT(A) for deciding afresh after considering the evidences filed by the assessee and after carrying out necessary enquiries required in the matter. Both the parties shall be afforded adequate opportunity of being heard. Accordingly, the ground of the appeal is allowed for statistical purposes.

“Further, it is noticed that out of above noted total expenditure of Rs.1,73,779/-, a cash expenditure of Rs. 88,000/- has been debited on 07- 10-2009. The assessee furnished the photocopy of a chart alongwith the written reply, dated 20-03-2013, in which breakup of rite payment of Rs. 88,000/- to 13 persons is shown and the signatures of the concerned payees on revenue stamps are shown in token of the disbursement of the payment. However, the above tuned chart does not depict the date of disbursement of payment. Moreover, the assessee has not given any reason as to what relation the above referred payees had with the assessee and as to how the how the above noted "expenditure of Rs. 88,000/- was incidental for the assessee's business and as to how such payment was incurred wholly and exclusively for the purposes of the assessee’s business.” Therefore, ground no. 7 is dismissed.”

4.3 Before us, the Ld. counsel referred to page 156 of the paper book and argued that details showing that the said payment was to their employees was already submitted before the Assessing Officer. He also referred to page 158 of the paper book which contained name of the employees, their designation and bonus amount paid on the Diwali. He submitted that all those documents were also provided to the Ld. CIT(A), but he did not consider the same. According to the Ld. counsel the bonus payment was made to the employees of the assessee as reflected from the copies of vouchers available on page 159 to 171, and thus the addition should be deleted. 4.4 Learner Sr. DR, on the other hand, relied on the order of the lower authorities. 4.5 We have considered the rival submission and perused the relevant material on record. In our opinion, the learned CIT(A) has not given any reasons for upholding the finding of the Assessing Officer and not considered the submission of the assessee. As the order of the learned CIT(A) on the issue in dispute is non-reasoned, we feel it appropriate to restore the issue-in-dispute to the file of the learned CIT(A) for passing a speaking and reasoned order after considering the submission of the assessee. Both the parties shall be afforded adequate opportunity of being heard. Accordingly, the Ground No. 2 of the appeal is allowed for statistical purposes.