2015 (4) TMI 1151 - HC - Income Tax

Invoking provisions of Section 40A(2)(b)(ii) - payment made to Renu Munjal Director the assessee company - AO had invoked Section 36(1)(ii) of the Act on the ground that Renu Munjal was also a shareholder and therefore the commission payment should be disallowed as dividend could have been paid - Held that - An identical question had engaged the attention of this Court for the Assessment Year 2005-06 2014 (8) TMI 1091 - DELHI HIGH COURT as held that reasoning of the Assessing Officer has been rightly rejected by the Tribunal. It is also noticeable that tax on dividend payment payable by the respondent company was much less than the tax payable by the individual assessee on income under the head Salary . In case Renu Munjal had received dividend she would not have paid any tax on dividend. However she has paid tax on the commission earned. In these circumstances we are not inclined to interfere with the impugned order.

Summary

Issues:
1. Disallowance of commission paid to the Managing Director/shareholder.
2. Interpretation of Section 36(1)(ii) of the Income Tax Act.
3. Comparison between tax on dividend payment and tax on income under the head 'Salary.'

Analysis:
1. The High Court addressed the issue of disallowance of commission paid to the Managing Director/shareholder in the present case. The Revenue challenged the order of the Income Tax Appellate Tribunal (ITAT) regarding the commission paid to Mr. Renu Munjal for the Assessment Year 2006-07. The Tribunal had rejected the disallowance of the commission payment, citing a previous decision of the Delhi High Court in a similar matter for the Assessment Year 2005-06.

2. The Court referred to a previous judgment related to the Assessment Year 2005-06 where it was held that the Assessing Officer's reasoning for disallowing the commission payment based on Section 36(1)(ii) of the Income Tax Act was not valid. The Tribunal's decision was upheld, emphasizing that dividend payment tax payable by the company was lower than the tax payable by the individual assessee on income under the head 'Salary.' The Court dismissed the Revenue's appeal, stating that no question of law arose due to identical facts in the present case.

3. The Court further elaborated on the comparison between tax implications on dividend payment and income under the head 'Salary.' It highlighted that if the Managing Director/shareholder had received dividends instead of a commission, the tax liability would have been lower. However, since tax was paid on the commission earned, the Court found no grounds to interfere with the Tribunal's decision. Consequently, the appeal was dismissed, maintaining consistency with the previous judgment and the interpretation of relevant provisions of the Income Tax Act.