2009 (1) TMI 60 - HC - Income Tax

Deduction claimed for commission paid to agents (M/s. O. M. C.). - payment of commission by one firm to another firm payment made to M/s. O. M. C. is nothing but payment made to partners - When the partners in both the firms are the same and there is nothing on record to indicate regarding any other services rendered by M/s. O. M. C. except to the appellant in our view section 40(b) is rightly invoked - formation of M/s. O. M. C. is to avoid tax deduction not allowed

Summary

The Karnataka High Court delivered a judgment in the case of an appeal filed by an assessee against an order of the Tribunal. The appellant, a partnership firm engaged in the manufacture and sale of agarbattis, filed a return declaring a loss for the assessment year 1992-93. The firm claimed deductions for commission paid to agents, including payments to sister concerns of the assessee. The Assessing Officer disallowed these deductions, citing the creation of the sister concerns as a means to divert profits and avoid tax. The Commissioner of Income-tax (Appeals) upheld the disallowances, a decision affirmed by the Tribunal.

The High Court considered whether the disallowances were justified. It noted that the partners of the appellant firm were also partners or directors of the sister concerns, and that the firms had not provided any professional services beyond the appellant. The court found that the payments were effectively made to partners and invoked section 40(b) of the Income-tax Act to disallow the commission payments to the sister concerns. The court also upheld the disallowance of marketing and sales promotion expenses, viewing the creation of the sister concerns as a means to siphon off profits. The court emphasized the need to assess the substance of transactions to prevent tax avoidance.

The appellant argued that the payments were for legitimate services, but the court found that the nature of the transactions indicated a tax avoidance scheme. The court dismissed the appeal, upholding the disallowances made by the Assessing Officer and the appellate authorities. The judgment underscores the importance of evaluating the genuineness and substance of transactions to prevent tax evasion.