TaxTMI 
TaxTMI 
2019 (3) TMI 1166
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....Assessment Year 2003-2004. 2. The questions of law on which the present Appeal was admitted by the Co-ordinate Bench on 21.12.2009 are quoted below for ready reference:- "i. Whether, on the facts and in the circumstances of the case, the Appellate Tribunal was right in law in disallowing the sum of Rs. 9 lakhs paid to its sister concern as advisory fees on the ground that there are no documentary evidence produced when in the nature of trade such documentary evidence is not possible to be maintained as all institutions are conveyed by telephonic messages? ii. Whether, on the facts and in the circumstances of the case, the Appellate Tribunal was right in law in holding that the competency of the recipient of advisory fee....
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....hat payment has been made to a person as specified in Section 40A(2)(b)(v). The assessee was not in a position to produce any documentary evidence regarding the services rendered by M/s. Patterson & Co. Pvt. Limited. Under such circumstances, the Assessing Officer disallowed the amount involved under Section 37 holding that it was not made for the purpose of business. The Assessing Officer also held that the payment has been made to a person covered under Section 40A(2)(b)(v) which was clearly unreasonable. 3.2 Upon assessee's appeal, the learned Commissioner of Income Tax (Appeals) held that M/s. Patterson & Co. Limited., had a long standing and rich experience with clients in share trading business. Hence, it has the competen....
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....ex Court in the case of ITO vs. C.H.Atchaiah 218 ITR 239 (SC) has held that it is the duty of the Assessing Officer to assess the right person only. Accordingly, we set aside the order of the learned Commissioner of Income Tax (Appeals) and restore that of Assessing Officer on this issue." 4. The learned counsel for the Assessee has vehemently submitted before us that the learned CIT (Appeal) was perfectly justified in allowing the said advisory fees in the hands of the Assessee Company as an allowable deduction by finding that there was an Agreement between the Assessee Company and its sister concern M/s.Patterson & Co., Pvt. Limited., for providing advice for business procurement and research and Advisory service to the Assessee Compan....
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....ices of procurement of business and market advise to be rendered by the sister concern. As the 50% of the brokerage earnings for the period under consideration amounted to Rs. 16,10,467/-, the maximum permissible amount of Rs. 9 lakhs was paid to the sister concern Patterson & Company for the professional services rendered by them. 7. The Assessing Officer noted that Shri M.Amarnath, a Director in the assessee company, had substantial interest in the firm Patterson & Company to which the payment of Rs. 9 lakhs was made. Thus, the payment was made by the assessee company to a related person as specified in Section 40A(2)(b)(v) of the Income Tax Act. The Assessing Officer further required the assessee company that services had, indee....
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.... diversion of business from the firm Patterson & Company to the assessee company are available on record. Again, given the nature of the business of stock broking, market advice and recommendations required to advise the clients of the assessee company would be provided by the firm Patterson & Company through telephone on a continuous basis and the assessee cannot be blamed for not maintaining records of such telephonic advice received from the firm Patterson & Company." 7. Per contra, the learned counsel for the Revenue supported the impugned order. 8. We are of the considered opinion that as a matter of fact, no substantial questions of law arise in the present Appeal filed by the Assessee. The findings of the learned Tribu....