Income Tax Appellate Tribunal - Nagpur
D.C.I.T. Amravati Circle, Amaravati vs Shri Savitridevi Brijlal Advani, ... on 2 July, 2018
IN THE INCOME TAX APPELLATE TRIBUNAL
NAGPUR BENCH, NAGPUR
BEFORE SHRI SHAMIM YAHYA, ACCOUNTANT MEMBER AND
SHRI RAM LAL NEGI, JUDICIAL MEMBER
ITA no. 307/Nag./2015
(Assessment Year : 2012-13)
Dy. CIT, Amravati Circle,
............... Appellant
Amravati
v/s
Smt. Savitribai Brijlal Advani
Prop. M/s. Adwani Wine Agency,
1st Floor, Amardeep Complex,
................... Respondent
Jaistambh Chowk, Amravati-444 601
PAN - ABUPA 3477 E
Assessee by : Shri R. K. Baral
Revenue by : Shri Kimesh Demble
Date of Hearing - 11.05.2018 Date of Order - 02.07.2018
ORDER
PER SHAMIM YAHYA, A.M.
This appeal by the Revenue is directed against the order of the ld. Commissioner of Income Tax (Appeals) - I, Nagpur dated 22.09.2015 and pertain to assessment year 2012-13.
2. The grounds of appeal read as under:
1. On the facts and circumstances of the case and in law, the Ld.CIT(Appeals) has erred in deleting the addition of Rs.40,03,210/- made by the Assessing Officer being disallowance of commission paid to related party.
3. Brief facts of the case are as under :
The assessee is wholesale dealer in country liquor and running the property concern in the style of Adwani Wine Agency, Amravati. The Assessing Officer in the 2 ITA No. 307/Nag./2015 Smt. Savitribai Brijlal Advani course of assessment proceedings found that the assessee has claimed sales commission expense of Rs.40,03,210/- in the P&L a/c. The commission is claimed to have been paid to Shri Shankarlal K. Advani Prop. of M/s Shiv Products, Amravati. The Assessing Officer found that the commission is paid to a single party and all the payments have been made on the last day of the financial year i.e. on 31.03.2012. The Assessing Officer, therefore, asked the assessee to justify the commission payments. In response thereto, the assessee filed the copy of agreement dtd.01.04.2011 between Advani Wine Agency, the principal and Shri Shankarlal Kimmatram Advani, the selling agent to whom the commission has been paid. In this regard, the Assessing Officer in para-5 of the assessment order has recorded a finding that "the agreement is on the stamp paper and not the registered document and even all part of document is printed except the year i.e. 2011 written by pen showing same overwriting." The ld. Counsel of the assessee filed the details of return of income filed by Shri Shankarlal Advani including the computation of income declaring total income of Rs.23,58,440/- for assessment year 2012-13. Thereafter, the Assessing Officer asked the assessee to produce Shri Shankarlal Advani for verification along with books of account and ITRs for assessment years 2011-12 to 2013-14. Shri Shankarlal Advani appeared before the Assessing Officer and his statement was recorded /s 131 of the I.T. Act, 1961 by the Assessing Officer, the relevant question answers of which are reproduced on pg.no.2 to 5 of the assessment order. Thus, based on the deposition made by Shri Shankarlal Advani, the Assessing Officer asked the assessee as to why the commission paid to Shri Shankarlal Advani should not be disallowed. The ld. Counsel of the assessee has filed a detailed reply dtd.10.02.2015 before the Assessing Officer which is reproduced on page no. 5 to 3 ITA No. 307/Nag./2015 Smt. Savitribai Brijlal Advani 10 of the assessment order. The Assessing Officer, however, declined to agree with the contentions raised by the AR and disallowed the commission for the reasons firstly, that the creditability of deposition made by Shri Shankarlal Advani is doubtful in as much as that it not logical to understand that how can a businessman who is running two proprietary concerns is not aware of exact date and time of execution of agreement.
Thus, by pointing out certain infirmities in the statement recorded and after invoking the provisions of section 40(A)(2)(b) of the Act, the Assessing Officer disallowed the entire commission paid to the Shri Shankarlal Advani.
4. Against the above order, the assessee appealed before the ld. Commissioner of Income Tax (Appeals).
5. The ld. Commissioner of Income Tax (Appeals) noted that there is a valid agreement for the payment of commission between the assessee and the commission agent. He further noted that the amount paid has not been disputed. The TDS was duly deducted. The payee had appeared before the assessing officer and confirmed the payment. In the return of income the payee had also shown the commission received as income. In these circumstances, by an elaborate order, the ld. Commissioner of Income Tax (Appeals) deleted the addition. The order of the ld. Commissioner of Income Tax (Appeals) reads as under:
5.2 On careful examination of the material facts, it is seen that the payment in question amounting to Rs.40,03,210/- to Shri Shankarlal Advani by the appellant is not disputed by the Id. AO . The Id. AO has also not brought out a case that actual services have not been rendered by the said party to the appellant in looking after the day to day affairs of its business including the efforts made towards sales promotion. The payment has been made by account payee cheque, TDS has duly been made and paid to the Government account. On perusal of the deposition made by Shri Shankarlal Advani before the AO u/s 131 of the Act, it is seen that the actual services rendered to the appellant by the said party have 4 ITA No. 307/Nag./2015 Smt. Savitribai Brijlal Advani not been denied. The statement made by Shri Shankarlal Advani is not a self securing piece of evidence but state the actual state of affairs as regards to the engagement in the business of the appellant. The inference drawn by the ld. AO that no salary or commission was received by Shri Shankarlal Advani from the appellant in lieu of having rendered the services in the past several years, therefore, the commission received in the year under appeal is not genuine is not based on sound footings in as much as that the said Shri Advani in his deposition has categorically clarified that no payments of whatsoever nature were received by him from the appellant till the partition has occurred in the joint family and it is only after the partition of joint family that he had charged the salary or commission for the services rendered to the appellant in the relevant financial year under appeal. In this regard, the agreement dtd. 01.04.2011 entered between the appellant and Shri ankarlal Advani has also to be taken into consideration before drawing any adverse inference, however, the Id. AO has discarded the same. The Id. AO has also inferred that since the payment has been made at the end of the financial year, it is not genuine. This inference drawn by the Id. AO also does not appears to be based on the merits in so far as the payment was made during the relevant financial year. Thus, the point of time when the payment is made is not material unless there is evidence contrary to the records showing that the actual services have not been rendered by the said party to the appellant and in the absence of that no inference drawn would sustain. 5.3 The Id. AO apart from examination of the party has also examined the income-tax return of Shri Advani with reference to the books of account for the relevant financial year. The recipient has duly recorded the amount of commission in his audited books of account and has duly offered the same in his return of income filed for the relevant year. Pursuant to examination of such books and relevant return of the recipient, no discrepancies have been pointed out by the Id. AO. The Id. AO ought to have appreciated that the sales during the year have increased by 50% which has resulted into corresponding increase of GP and NP by 48% and 55% in comparison to the immediately preceding FY 2010-11. The ld. AO in his order has recorded a finding that there is no competition with the business of the assessee in the area. However, the same does not appear to be correct and several other brands such as tango punch, bhingri, ploycam, badi saunf, mango, sakhu santra, blue santra, brands are in competition in the area with the brand called boby dealt with by the appellant. Thus, saying that there exists no competition in appellant's business would not be correct, as otherwi se also in an economy with free market conditions, the competition is inevitable. The appellant has been paid the commission as per the terms of the agreement dtd. 01.04 .2011. The Id. AO has also stated that the agreement is not registered, but registration of agreement is not a pre-requisite for payment of commission or salary which right accrues purely with reference to the services rendered and an oral agreement between the parties would also hold good for that limited purpose. The net taxable income declared by the recipient in his return of income after claim of deductible expenditure is immaterial, if the recipient has included the whole of the commission amount in his gross receipts. The recipient in the present case has 5 ITA No. 307/Nag./2015 Smt. Savitribai Brijlal Advani booked the entire commission amount paid of Rs. 40, 03,210/- in his books of account and offered the same for taxation. Therefore, there exists no infirmity in accounting for the same. It is a fact emanated from records that Shri Shankarlal Advani the recipient of the commission falls within the ambit of section 40 (A) (2) (b) of the Act but the auditor has omitted to give qualification to that extent in the audit report which is not directly material in the present case because the provisions of section 40(A)(2)(b) are generally invoked to compare the benefits passed on to the family members by a concern at the higher rates than the prevalent market rates applicable to other concerns dealing with the same commodity but that is not the case here. Therefore, the inferences drawn by the ld. AO are not supported by merits.
6. Against the above order, the Revenue is in appeal before us.
7. The learned departmental representative relied upon the order's of the assessing officer.
8. Per contra, the learned counsel of the assessee submitted that the assessee has made genuine payment of commission which is supported by the necessary documentary evidence as well as the confirmation by the payee himself before the assessing officer. The submission of the learned counsel of the assessee in this regard is summarized as under:
A. Assessee is a female senior citizen and proprietor of M/s. Adwani Wine Agency, Amravati which is wholesale dealer in country liquor. B. Her business is spread throughout scores of villages & talukas located in remote areas of Amravati & Akola Districts.
C. Commission of Rs.40,03,210/- has been paid by assessee to Shankarlal Adwani who looks after day to day activities such as procuring orders, bill preparation, collection of sale proceeds from approximately 146 parties and maintenance of Stock records.
D. Assessee has duly deducted IDS on such commission u/s. 194H and the same has been claimed by Shankar Adwani at time of filing his return. E. Commission earned by Shankarlal Adwani has been duly disclosed in his gross receipts & net profit arrived at considering the same has been assessed to tax.
F. Assessment Order u/s. 143(3) in case of Shankarlal Adwani has been framed by the same Ld. A.O. within a span of 15 days and he himself has accepted the commission income of Rs.40,03,2107- received from assessee. This Act of Ld A.O. would amount to assessing same income twice.6
ITA No. 307/Nag./2015 Smt. Savitribai Brijlal Advani G. Agreement dated 01/04/2011 between assessee & Shri Shankarlal Adwani for commission, is on record.
H. Statement of Shankarlal Adwani u/s. 131 of the IT. Act, 1961 has been recorded and he has categorically stated that he is receiving commission from assessee in his answers to question no. 13.
I. Comparative Chart showing increase in sales, gross profit and net profit during the concerned assessment year vis-a-vis A.Y. 2011-12 is as under:
Particulars FY 201 0-11 FY 201 1-1 2 Increase % Inc.
Sales 35,27,60,069 53,13,73,695 17,86,13,626 50.63%
Gross Profit 1,73,72,256 2,57,40,321 83,68,065 48.17%
Net Profit 1,23,74,523 1,91,94,975 68,20,452 55.12%
J. Ld. A.O. has not brought on record any evidence signifying no actual
services have been rendered by Shankarlal Adwani.
K. Shankarlal Adwani categorically clarified no payment were received
before him from appellant till the partition and only after partition he has been receiving commission. No payment of commission in last year cannot be the basis to determine its genuineness during concerned assessment year. L. Assessee deals in the brand named 'boby' of country liquor and there are other brands also existing in same area such as -'tango purchase, bhingri, ploy car, badi sarnf, mango, sakhu santra, blue santra' and hence competition does exists & services of commission agents are required considering the business circumstances. Department is not required to put itself in the armchair of the business to decide whether to incur an expense and how much to incur. The required of 'commission expediency' has to be determined from point of view of prudent business. Payment of commission is commercial wisdom of assessee. Assessee places reliance upon:
i. CIT vs Chandulal Keshavlal & Co. [SC][38ITR0601] ii. CIT vs Naval Technoplast Industries Ltd [Gujarat HC] [ITA No.1416/2011] [PP 27-28, 27] iii. Ramanlal KamdarvsCIT [Madras HC] [103 ITR 0489] [PP 29-36, 29/30]
9. Upon careful consideration we note that the assessee in this case is a female senior citizen. She is engaged into liquor business in far-flung remote areas. She has engaged a commission agent to facilitate the sales. She has paid a sum of Rs.40,03,210/-
as commission against a total sale of Rs.53,13,73,895/-. There is an income of 50% in 7 ITA No. 307/Nag./2015 Smt. Savitribai Brijlal Advani the sales as compared to previous year. The commission payment is duly backed by an agreement. The recipient has also appeared before the assessing officer and confirmed the same. The recipient has also offered the same as income in his income tax return which has been accepted by the Revenue. The assessee has duly deducted the tax deduction at source from the payment. In these circumstances, in our considered opinion, there is no infirmity in the order of the ld. Commissioner of Income Tax (Appeals). Accordingly, we uphold the same.
10. In the result, this appeal by the Revenue stands dismissed Order pronounced by listing the result on the Notice Board of the Bench under Rule 34(4) of the Appellate Tribunal Rules, 1963.
Sd/ Sd/-
-
RAM LAL NEGI SHAMIM YAHYA
JUDICIAL MEMBER ACCOUNTANT MEMBER
DATED: 02.07.2018
Copy of the order forwarded to:
(1) The Assessee;
(2) The Revenue;
(3) The CIT(A);
(4) The CIT, Nagpur City concerned;
(5) The DR, ITAT, Nagpur;
(6) Guard file.
// True Copy //
By Order
Roshani, Sr. PS
(Sr. P.S./P.S.)
ITAT