KSHITIJ INTERRIORS P.LTD,MUMBAI vs. DCIT OSD- 8(2), MUMBAI

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ITA 5151/MUM/2014Status: DisposedITAT Mumbai12 January 2018AY 2011-125 pages

In favour of the assessee: the assessee's appeal was allowed. From the AI summary of this appeal.

AI SummaryAllowed

What did the Tribunal hold?

The Tribunal held that the commission was paid for genuine services rendered by a qualified whole-time director, as per board resolutions and at reasonable rates. It also noted that the director offered the commission for tax, negating any tax avoidance motive.

What were the facts?

The assessee company paid a commission of Rs. 3,29,900/- to its whole-time director for services rendered. The Assessing Officer (AO) disallowed this commission, treating it as being in lieu of dividend and for tax avoidance.

What were the issues?

Whether commission paid to a whole-time director for services rendered can be disallowed under Section 36(1)(ii) as being in lieu of dividend or for tax avoidance.

Which sections of the Income-tax Act were involved?

Section 36(1)(ii)

AI-generated summary — verify with the full judgment below

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Income Tax Appellate Tribunal, “A”, BENCH MUMBAI

Before: SHRI R.C.SHARMA, AM & SHRI RAVISH SOOD, JM

For Appellant: Shri Subhash Chhajed and Shri
For Respondent: Shri Rajesh Kumar Yadav
Hearing: 07/12/2017Pronounced: 12/01/2018

आदेश / O R D E R PER R.C.SHARMA (A.M): This is an appeal filed by assessee against the order of CIT(A)-17, Mumbai dated 28/05/2014 for A.Y.2011-12 in the matter of order passed u/s.143(3) of the IT Act. 2. The following grounds have been taken by the assessee.

1.

1. On facts and circumstances of the case and in law, the Commissioner of Income Tax (Appeals) 17, erred in confirming the addition of Rs.3,29,900/- made by the AO being the commission paid to the director as commission in lieu of dividend , U/s36(1)(ii) of the Income tax Act, 1961.

2. The Id. CIT and the AO failed to appreciate that:- a) The Commission is paid for the services rendered by the director as per the terms and are at reasonable rates. b) The commission is paid to the whole time director of the company.

M/s. Kshitij Interiors Pvt. Ltd., c) The director is a qualified person with a First class degree in Interior Line. d) The commission paid is in terms with board resolution. e) The commission paid during the year is not a solitary payment in the current year, it is regular payment. f) There is no motive of tax evation since the full tax is paid by the recipient of commission g) The proof of the technical qualification of the director is placed on record in the assessment proceedings, h) The qualification and experience of the director as well as the submissions made during the assessment and appellate proceedings has been ignored. i) The earlier year order was blindly followed ignoring the submissions made highlighting the differences.

3.

The appellant, therefore, prays that the addition of Rs. 3,29,9007- towards commission paid to directors may kindly be deleted. The appellant craves leave to add, alter, amend or delete any of the above grounds of appeal

3. Rival contentions have been heard and record perused.

4. Grievance of assessee revolves around disallowance of Rs.3,29,900/- paid as commission to the Director of the company by invoking provisions of Section 36(1)(ii) of the IT Act.

5. Rival contentions have been heard and record perused. We had also carefully gone through the orders of the authorities below and found that assessee company is engaged in the business of interior decorators, manufacturing, reseller and works contract. Assessee company has two directors Mr. Bhawarlal Sharma and Mrs. Manju Sharma. Mr. Bhawarlal Sharma is a whole time Director of the Company. The assessee company during the year has paid commission to Mr. Bhawarlal Sharma of Rs. 3,29,900/- for the services rendered by him to the assessee company. The AO added the commission paid to the above director and shareholder M/s. Kshitij Interiors Pvt. Ltd., u/s 36(l)(ii) on the grounds that the commission paid to director is in lieu of dividends and further reasoned that the transaction is used as a measure for tax avoidance.

6. By the impugned order, CIT(A) confirmed the action of the AO against which assessee is in further appeal before us.

7. We have considered rival contentions and deliberated on the judicial pronouncements referred by lower authorities in their respective orders as well as cited by learned AR and DR during the course of hearing before us in the context of factual matrix of the case.

8.

From the record we found that commission was paid to Mr. Bhawarlal Sharma, whole time Director of the Company, for the services rendered by him to the Company. The Director has rendered technical services to the assessee company. The commission so paid is for the services so rendered by the director and in line the principles of commercial expediency. The same are paid as per the agreed terms in the board resolution and are also at reasonable rates. We also found that the director is a whole time director and an employee of the company. Further, director is a person with technical knowledge having a first class degree in Interior line which further substantiate the fact that Mr. Bhawarlal Sharma is a technical person and his capacity and ability in effecting business activities and that the commission paid is in accordance with the board resolution passed at the beginning of the year. We also found that Mr. Bhawarlal Sharma also paid tax on the commission income received by company in his individual return. Thus,

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