ANIL L TAODARWAL,MUMBAI vs. PR CIT 19, MUMBAI

The present appeal is directed against the order passed by the Principal Commissioner of Income tax-19, Mumbai (for short Principal CIT), under Sec. 263 of the Income tax Act, 1961 (for short ‘Act’), dated 21.03.2017, which in itself arises from the order P a g e | Shri Anil L. Todarwal Vs. Pr. CIT passed by the A.O under Sec. 143(3) of the ‘Act’, dated 29.01.2015. The assessee assailing the order of the Principal CIT had raised before us the following grounds of appeal:-

That supervision charges paid to Shri Pratap Singh of Rs. 33,000/- was not commission u/s. 194H and there was no liability to deduction under the said section. Hence disallowance u/s. 40(a)(ia) is bad on facts and in law. It was duly explained and accepted by the Assessing Officer.

That the learned Principal Commissioner of Income-tax has not properly considered, appreciated and understood replies dated 24.02.2017, 03.03.2017 and 14.03.2017 and has passed the impugned order ignoring the claims and contentions, which is bad.

The order dated 21/03/2017 passed by the Principal Commissioner Of Income Tax - 19, under section 263 of the Income Tax Act 1961 is void, illegal, without jurisdiction and needs to be quashed. The Appellant craves to leave, to add, amend and/or alter all or any of the above grounds of appeal

The assessee in his reply submitted before the Principal CIT that as the A.O after making necessary verifications had allowed the claim of the assessee as regards the local and foreign commission, therefore, the assessment order passed by him was not amenable for revision under Sec.

The assessee further in the course of the revision proceedings placed on record the list of the commission agents, along with the copies of the letter and terms of payments regulating the payment of foreign commission. However, the Principal CIT after deliberating on the reply observed that the assessee had neither submitted an order under Sec.195 of the Act, nor a certificate by a Chartered accountant in Form No. 15CA specifying that the deduction of tax at source on the foreign commission paid was not required to be made. Thus, in the backdrop of his aforesaid observations the Principal CIT concluded that as the A.O while framing the assessment under Sec. 143(3), had failed to make necessary verifications in respect of deductibility of tax at source on foreign commission while framing the assessment under Sec. 143(3), therefore, the order passed P a g e | Shri Anil L. Todarwal Vs. Pr. CIT by him without making the enquiries and verifications which should have been made, rendered the order passed by him amenable for revision as per Explanation 2(a) to Section 263(1) of the Act.

The Principal CIT on perusing the details of the local commission paid by the assessee observed that the details which were furnished before the A.O differed from those furnished before him. The Principal CIT observed that local commission of Rs. 33,000/- paid by the assessee to one Shri Pratap Singh was not substantiated on the basis of any corroborative evidence. The assessee on being called upon to explain the variance submitted that he was liable to pay supervision charges through Shri Pratap Singh, therefore, the commission paid to him was to be considered as part of the salary paid, which thus ousted the applicability of the provision of Sec. 194H to the said payment. However, the Principal CIT observed that the aforesaid claim of the assessee could not be accepted, as the details available on record clearly revealed that a commission of Rs.33,000/- was paid to Shri. Pratap Singh, on which the assessee had failed to deduct tax at source under Sec. 194H of the Act. The Principal CIT in the backdrop of his aforesaid observations held that the failure of the assessee to deduct tax at source on the aforesaid commission amount, thus, rendered the same liable for disallowance under Sec. 40(a)(ia) of the Act. Thus, on the basis of his aforesaid observations, the Principal CIT concluded that because of the failure of the A.O to make necessary verifications and disallow the commission amount under Sec. 40(a)(ia), the order passed by him under Sec. 143(3) on the said count too was rendered as erroneous in so far as it was prejudicial to the interest of revenue. The Principal CIT on the basis of his aforesaid conviction, cancelled the assessment framed by the A.O under Sec. 143(3), dated P a g e | Shri Anil L. Todarwal Vs. Pr. CIT 29.01.2015, and directed him to determine the income on the basis of proper inquiries after affording an opportunity to the assessee.

The assessee being aggrieved with the order passed by the Principal CIT under Sec. 263 of the Act had carried the same in appeal before us. The ld. Authorized Representative (for short ‘A.R’) for the assessee drew our attention to the ‘Show cause’ notice (for short ‘SCN’) issued by the Principal CIT under Sec. 263(1) of the ‘Act’ (Page 41) of assesse’s paper book (for short ‘APB’). The ld. A.R further took us through the various pages of his APB. The ld. A.R referring to the observations of the Principal CIT that the assessee had not submitted either an order under Sec. 195 of the Act, nor the prescribed certificate in Form No. 15CA of the Chartered Accountant, specifying that the deduction at source on such commission paid was not required to be made, submitted that as the foreign commission was paid by the assessee to a non-resident for his services rendered abroad, therefore, there was no obligation on the assessee for deducting tax at source in respect of the said payment. The ld. A.R submitted that it was brought to the notice of the A.O that as the amount paid to Shri Pratap Singh was in respect of the supervision charges and was to be considered as a part of the salary, therefore, the provisions for deduction of tax at source on the said payment as per Sec. 194H of the ‘Act’ were not attracted. The ld. A.R submitted that the A.O had during the course of the assessment proceedings raised queries on the issues under consideration and had only after thoroughly deliberating on the reply of the assessee in respect of the said issues, viz. (i) payment of commission to foreign agents; and (ii) payment of supervision charges to Shri Pratap Singh, which was by way of salary, accepted the same. It was further submitted by the ld. A.R that prior to the initiation of the revision proceedings by the P a g e | Shri Anil L. Todarwal Vs. Pr. CIT Principal CIT under Sec. 263 of the Act, the A.O had sought information in respect of both of the aforesaid issues, vide a notice issued to the assessee under Sec. 133(6) of the Act, dated 06.10.2016 (Page 35 of ‘APB’). The ld. A.R submitted that the assessee vide his reply dated 22.11.2016, (Page 36-39 of ‘APB’) had submitted before the A.O that as the foreign commission of Rs.9,84,862/-was paid for the services rendered outside India by non-resident commission agents, therefore, in view of Sec. 9 of the Act as no income could be deemed to have accrued or arisen in India, thus no obligation was cast upon the assessee to withhold the taxes. It was further submitted by the ld. A.R that the assessee in his aforesaid reply had also clarified that there was no obligation on his part for deducting tax at source in respect of the payment made towards salary to Shri Pratap Singh. The ld. A.R submitted that the reply furnished by the assessee in response to the notice issued under Sec. 133(6) by the A.O was also a part of the ‘record’ which was there before the Principal CIT, at the time when he had initiated the revision proceedings under Sec. 263 in the case of the assessee. The ld. A.R in support of his aforesaid contention relied on the judgement of the Hon’ble High Court of Gujarat in the case of CIT Vs. Vallabhdas Vithaldas (2015) 232 taxman 57 (Guj). It was thus submitted by the ld. A.R that now when the two fold issues on the basis of which the assessment order passed by the A.O had been revised by the Principal CIT in exercise of his powers under Sec. 263 of the ‘Act’, were duly clarified by the assessee before the A.O in the course of the assessment proceedings, as well in his reply to the notice issued by him under Sec. 133(6) prior to initiation of the revision proceedings, which after necessary deliberations and application of mind was accepted by the A.O, therefore, the Principal CIT could not have revised the assessment order on the said issues on which a plausible view had already been arrived at by the A.O. The ld. A.R P a g e | Shri Anil L. Todarwal Vs. Pr. CIT submitted that now when the A.O had made necessary verifications as regards both the issues on the basis of which his order had been revised under Sec. 263 of the Act, viz. (i). Foreign commission; and (b). local commission, therefore, the Principal CIT could not have revised the order passed by the A.O, for the reason that observations in respect of the said issues were not found recorded in the body of the assessment order. The ld. A.R in support of his aforesaid contention relied on the judgments of the Hon’ble High Court of Bombay in the case of CIT Vs. Fine Jewellery (India) ltd. (2015) 372 ITR 303 (Bom) and Commissioner of Income-tax Vs. Gabrial India Ltd.(1993) 203 ITR 108 (Bom). It was thus submitted by the ld. A.R that the Principal CIT had exceeded his jurisdiction and revised the assessment order passed by the A.O under Sec. 143(3) of the Act. Per contra, the ld. Departmental representative (for short ‘D.R’) submitted that a perusal of the records of the assessee revealed that the assessee had paid the foreign commission to its buyers. The ld. D.R to drive home his aforesaid contention, took us through Page 24 and Page 45 of the ‘APB’. It was thus submitted by the ld. D.R that as the A.O had failed to make the necessary verifications in respect of the payment of the foreign commission, therefore, the Principal CIT had rightly observed that the said failure on the part of the A.O to make necessary enquiries and verifications had rendered the order passed by him under Sec. 143(3) of the Act, erroneous in so far as it was prejudicial to the interest of the revenue. The ld. D.R. further submitted that the A.O while framing the assessment had summarily accepted the claim of the assessee and had not made any verifications at all as regards the nature of the services rendered by the foreign commission agents. The ld. D.R further submitted that the payment made by the assessee to Shri Pratap Singh was by way of commission, that was paid on production of 33,000 pieces @ Rs.1 per piece. The ld. D.R to fortify his P a g e | Shri Anil L. Todarwal Vs. Pr. CIT aforesaid claim took us through the ‘Commission account’ (Page 39 of ‘APB’). The ld. A.R in his rejoinder submitted that the complete details of the foreign commission agents were furnished with the A.O, who only after thorough deliberations and application of mind had accepted the same. The ld. A.R to support his claim drew our attention to the copy of invoice of the export sales (Page 84 of ‘APB’), wherein there was a clear mention of the name of the foreign commission agent.

We have heard the authorized representatives for both the parties, perused the orders of the lower authorities and the material available on record. We find from a perusal of the records that the A.O had in the course of the assessment proceedings raised specific queries as regards the foreign commission of Rs.9,84,862/- that was paid by the assessee during the year under consideration. We find that the assessee vide his reply dated 19.11.2014 filed with the A.O during the course of the assessment proceedings, had furnished details as regards the ‘foreign commission’ as well as ‘local commission’ that was paid by him during the year under consideration (Page 22 of ‘APB’). The assessee still further had in his reply dated 16.01.2015, furnished with the A.O details of the commission paid along with supporting documents. We find that the assessee had by way of an enclosure to his aforesaid reply, specifically submitted before the A.O that the amount of Rs.33,000/- which was paid to Shri Pratap Singh, formed a part of the salary. We further find that the assessee had in the details of the foreign commission paid by him divulged the details of the foreign buyers (Page 3 of APB). We further find that specific queries after the culmination of the assessment proceedings and prior to initiation of the revision proceedings by the Principal CIT under Sec. 263, were raised by the A.O vide his notice issued to the assessee P a g e | Shri Anil L. Todarwal Vs. Pr. CIT under Sec. 133(6), dated 06.10.2016 in respect of the aforesaid issues, viz. (i) foreign commission; and (ii) local commission. We find that as observed by us hereinabove, the assessee had duly clarified that as the foreign commission of Rs.9,84,862/- was paid to non-residents for the services rendered abroad, therefore, as per Sec. 9 of the Act, in the absence of any income having deemed to accrue or arise in India, there was no obligation on the part of the assessee to withhold any tax in respect of the said payment. We further find that the assessee had also clarified the reason for non-deduction of tax at source on the local commission aggregating to Rs.44,446/-. The assessee in response to the notice issued to him by the A.O under Sec. 133(6), had in his reply dated 09.01.2017, divulged complete details as regards the reasons and the procedure for payment of the foreign commission, along with the details of the foreign commission agents. We further find that the assessee had vide his reply dated 24.02.2017 filed with the Principal CIT, categorically stated that no commission was paid to the buyers, and the same was paid only to the foreign commission agents for rendering their services outside India. We find that complete details of the commission agents as well as the foreign buyers was furnished by the assessee with the Principal CIT (Page 45 of ‘APB’), along with a copy of the bank certificate wherein it was certified that the commission was remitted to foreign agent, viz. Wing Fat Sourcing Hong Kong (Page 46-48 of APB).

We are not oblivious of the fact that the legislature, vide the Finance Act, 2015, by making available Explanation 2 to Sec. 263 on the statute w.e.f 01.06.2015, had therein provided certain circumstances, under which the order passed by the A.O, if, it is in the opinion of the Principal Commissioner or Commissioner so, shall be deemed to be erroneous in so far as it is prejudicial to the interest of the revenue. However, exercise of such deemed powers conferred on the revisional authority as per Explanation 2 have to construed by strictly confining and subject to satisfaction of the conditions contemplated therein. We are of the considered view that to the extent making of inquiries and verification which in the opinion of the CIT the A.O should have made, as contemplated in Clause (a) of P a g e | Shri Anil L. Todarwal Vs. Pr. CIT Explanation 2, though gives an edge to the opinion of the CIT as regards the inquiries and verifications which the A.O should have made, but then, such inquiries and verifications are not only required to be relevant for adjudication of the issue, but also should point out as to how the view arrived at by the A.O by not taking recourse to such inquiries and verification, can be faulted with and held to be wrong. We thus are of the considered view that now when the assessee had in the course of proceedings before the A.O proved that the foreign commission was paid to the foreign commission agents for services rendered abroad, which thus did not cast any obligation on the assessee to withhold tax while making such payment, therefore, the observation of the Principal CIT that the assessee had neither submitted an order under Sec. 195 of the Act, nor the prescribed certificate in Form No. 15CA of the Chartered Accountant, specifying that the deduction at source on such commission paid was not required to be made, in itself is rendered as redundant. Thus, in the absence of any statutory obligation on the assessee for withholding tax on the aforesaid payment, neither of the aforesaid verifications as were sought by the Principal CIT did survive any more. We are of the considered view that the Principal CIT in the backdrop of the aforesaid facts as emerges from the record, and was also pleaded by the assessee before him, had however not shown as to how the view taken by the A.O was found to be erroneous. We thus are of the considered view that as in the case of the present assessee, the necessary inquiries or verifications for leading to the conclusion that the claim of the assessee as regards the payment of foreign commission on the export sales was in order, were made by the A.O, therefore, it can safely be concluded that the order passed by him was not without making inquiries or verifications which should have been made. Still further, as regards the payment of local commission of Rs.33,000/- to P a g e | Shri Anil L. Todarwal Vs. Pr. CIT Shri Pratap Singh, we have perused the material which was furnished by the assessee during the course of the assessment proceedings, as well as his reply to the notice under Sec.133(6). We find that the assessee had through out been claiming that the amount of Rs.33,000/- was paid to Shri Pratap Singh towards supervision charges and formed part of his salary. We have given a thoughtful consideration to the aforesaid facts in the backdrop of the material available on record and are of the considered view that the A.O only after necessary deliberations on the aforesaid claim of the assessee had accepted the same. We are of the considered view that now when the A.O after necessary deliberations had accepted that the payment made to Sh. Pratap Singh was by of salary, therefore, the provisions of Sec. 194H contemplating an obligation for deduction of tax at source on payment of commission was not attracted. We are of the considered view that the observation of the Principal CIT that the amount paid to Sh. Pratap Singh was by way of commission and not salary, on which the assessee had defaulted to deduct tax at source, without pointing out as to on what basis he had so concluded, and as to what all inquiries or verification the A.O should have made, thus, cannot be accepted. We are of the view that now when a plausible view had been arrived at by the A.O accepting the claim of the assessee that the amount paid to Shri Pratap Singh towards supervision charges was by way of salary, therefore, the order passed by the A.O could not have been faulted with by holding that the same was erroneous in so far as it was prejudicial to the interest of the revenue. We thus are of the view that the assumption of jurisdiction by the Principal CIT to revise the assessment order passed by the A.O, even in respect of the issue of payment of commission to Sh. Pratap singh cannot be sustained and is liable to be vacated. We thus in the backdrop of our aforesaid observations are of the considered view that now when the A.O after P a g e | Shri Anil L. Todarwal Vs. Pr. CIT making necessary inquiries and verifications which should have been made by him in the course of the assessment proceedings and the queries raised vide notice under Sec. 133(6), had arrived at a plausible view, which we are afraid the Principal CIT had not been able to show as to how the same was erroneous, nor as to what all inquiries and verification leading to a contrary view should have been made by him, therefore, are unable to persuade ourselves to be in agreement with the Principal CIT that the order passed by the A.O under Sec. 143(3) was erroneous in so far it was prejudicial to the interest of the revenue, therein rendering it liable to be revised under Sec. 263 of the Act. We may further observe that we are in agreement with the contention of the ld. A.R that merely because the A.O had not referred about the inquiries and verifications carried out by him in respect of the issue under consideration in the body of assessment order, the same would not vest jurisdiction with the CIT to revise the order, as long as such exercise so carried out by the A.O can be gathered from the record. We find that our aforesaid view is fortified by the judgments of the Hon’ble High Court of Bombay in the case of CIT Vs. Fine Jewellery (India) ltd. (2015) 372 ITR 303 (Bom), Commissioner of Income-tax Vs. Gabrial India Ltd.(1993) 203 ITR 108 (Bom) and MOIL Ltd. Vs. CIT-1, Nagpur (2017) 396 ITR 244 (Bom). We thus in the backdrop of our aforesaid observations are of a strong conviction that the Principal CIT had traversed beyond the scope of his jurisdiction and revised the order passed by the A.O under Sec. 143(3), dated 29.01.2015, which as observed by us hereinabove, was passed by the A.O after making the necessary inquiries and verifications in respect of the issues under consideration.