2019 (4) TMI 1166 - AT - Income Tax

Tribunal partially allows appeal, upholds 25% disallowance of commission expenditure due to insufficient evidence.

The Tribunal partially allowed the assessee's appeal, justifying a 25% disallowance of the commission expenditure due to deficient evidence. The Tribunal ... Allowability of commission/discount as business expenditure - evidentiary value of books and self generated registers - burden of proof and verifiability of payment - disallowance for lack of documentary evidence - apportionment of disallowance for deficient recordsAllowability of commission/discount as business expenditure - evidentiary value of books and self generated registers - burden of proof and verifiability of payment - apportionment of disallowance for deficient records - Whether the commission expense of Rs. 10,10,287/- claimed by the assessee is allowable in full or requires disallowance for lack of adequate supporting evidence - HELD THAT: - The Tribunal examined the competing material: the assessee's audited books, stamp sale registers, affidavits and income tax returns of registry consultants against the Assessing Officer's and CIT(A)'s finding that the commission payments lacked vouchers and the sale register was illegible and unverifiable. The Tribunal accepted that in the trade of licensed stamp vending it is common commercial practice to pass discounts/commissions through consultants and that daily, multiple small payments made practical receipt taking difficult. The Tribunal, however, noted the legitimate concern arising from absence of individual vouchers/acknowledgements and the limited verifiability of self generated entries. Balancing these factors, and giving weight to the assessee's contemporaneous books, registers and third party affidavits/returns, the Tribunal found complete disallowance excessive. It applied an apportionment to reflect the deficiency in corroborative documentation and to protect the revenue interest, holding that a partial disallowance of 25% of the claimed commission fairly addresses the lack of necessary vouchers while recognising the commercial practice and other evidence placed on record. [Paras 13, 15]Assessee's appeal partly allowed; disallowance of commission restricted to 25% of the claim (Rs. 2,52,572/-), setting aside the full disallowance made by lower authorities.Final Conclusion: Appeal partly allowed: the Tribunal accepted the commercial practice and some supporting evidence but sustained a quantified disallowance of 25% of the claimed commission expense for Assessment Year 2010-11 to account for inadequate documentary proof. Issues Involved:1. Proper and reasonable opportunity to substantiate expenditure.2. Defective remand report.3. Assumption-based additions and directions flouted by AO.4. Non-appreciation of independent third-party confirmations.5. Non-exercise of powers under sections 131 and 133(6) of the IT Act.6. Admission by AO regarding commission payments.7. Incorrect findings on stamp sales registers.Issue-wise Detailed Analysis:1. Proper and reasonable opportunity to substantiate expenditure:The assessee contended that the respondent did not provide a proper and reasonable opportunity to substantiate the expenditure of Rs. 10,10,287/- as commission/discount paid to customers and registry consultants. The Tribunal noted that the assessee was given opportunities to produce evidence but failed to do so satisfactorily. The Tribunal observed that the assessee's inability to identify the purchasers due to illegible handwriting in the stamp sale register further weakened his claim.2. Defective remand report:The assessee argued that the remand report was defective and did not bring new evidence but rather reiterated the assessment order's findings. The Tribunal found that the remand report provided by the AO did not add significant new information and largely repeated the initial assessment's conclusions, failing to support the assessee's claims with substantial evidence.3. Assumption-based additions and directions flouted by AO:The assessee claimed that the AO made additions based on assumptions and did not follow CIT(A)’s directions to conduct an independent inquiry from customers. The Tribunal noted that the AO did not conduct the necessary inquiries and relied on the illegibility of the stamp sale register, leading to unsupported assumptions about the commission payments.4. Non-appreciation of independent third-party confirmations:The assessee presented affidavits and confirmations from advocates and registry consultants, which the AO disbelieved without cross-verifying. The Tribunal acknowledged these third-party confirmations and noted that while the AO dismissed them without proper verification, the lack of detailed vouchers and receipts from the assessee weakened his position.5. Non-exercise of powers under sections 131 and 133(6) of the IT Act:The assessee argued that the respondent did not use powers under sections 131 and 133(6) to summon customers and parties, despite specific requests. The Tribunal agreed that the AO did not utilize these powers, which could have provided clarity on the commission payments.6. Admission by AO regarding commission payments:The assessee pointed out that the AO admitted in the assessment order that a portion of the commission payments appeared correct but were allegedly paid to advocates or registry consultants, not customers. The Tribunal found this admission significant but noted that the AO's failure to verify these payments through proper channels left the issue unresolved.7. Incorrect findings on stamp sales registers:The assessee contended that the CIT(A)'s findings on the stamp sales registers were incorrect and contrary to law. The Tribunal observed that the CIT(A) dismissed the registers as self-generated evidence with no evidentiary value due to illegible entries, which the assessee admitted were made by him. This undermined the credibility of the registers as reliable evidence.Conclusion:The Tribunal, considering the facts and circumstances, partially allowed the assessee's appeal. It justified a 25% disallowance of the commission expenditure, amounting to Rs. 2,52,572/-, due to the deficiency in maintaining necessary vouchers and receipts. The Tribunal set aside the findings of the lower authorities and sustained the partial disallowance, thereby partly allowing the assessee's appeal. The order was pronounced in the open court on 16.04.2019.