2025 (5) TMI 825 - AT - Income Tax

Addition of commission income based solely on Form No. 26AS without verifying actual receipt of commission by the assessee - HELD THAT - It is not in dispute that as per 26AS the Assessee has been shown as recipient of commission amount of Rs. 97, 12, 121/-. Further the Assessee has shown total commission of Rs. 21, 15, 420/- only. Apart from the same the Assessee has also taken full credit of TDS deducted by the payer on commission shown in the Form No. 26AS. It is the case of the Assessee that the Assessee has not received any of the commission amounts from the payee i.e. M/s Laxmi Remote (India) Pvt. Ltd. therefore the said Company should not have debited TDS amount and should not have made payment to the Government. We remand the matter to the file of the A.O. with a direction to examine the issue afresh by providing opportunity of being heard to the Assessee and pass an order afresh as observed by the Tribunal in the case of Anju Sachdeva 2022 (8) TMI 1576 - ITAT DELHI - Appeal of the Assessee is partly allowed for statistical purpose.

Summary

1. ISSUES PRESENTED and CONSIDERED

The core legal questions considered by the Tribunal in this appeal include:

(a) Whether the addition of commission income based solely on Form No. 26AS without verifying actual receipt of commission by the assessee is justified;

(b) Whether the assessee was denied proper opportunity of being heard, violating principles of natural justice;

(c) Whether the Assessing Officer (A.O.) and First Appellate Authority erred in relying on the TDS credit reflected in Form 26AS to make additions without examining the payer company's financial statements and actual payment records;

(d) Whether the TDS return filed by the payer company, which showed deduction of tax on commission not actually paid to the assessee, can be revised beyond limitation and whether the assessee can claim refund based on such TDS;

(e) Whether the addition of commission income without considering the assessee's submissions regarding reversal of commission and non-receipt of amounts is legally sustainable;

(f) Whether the Tribunal should follow the precedent set by the coordinate bench in a similar case where the matter was remanded for fresh examination of facts.

2. ISSUE-WISE DETAILED ANALYSIS

Issue (a): Justification of addition of commission income based on Form 26AS without verifying actual receipt

The relevant legal framework involves the principle that income is taxable only when it is either received or accrued to the assessee. The Supreme Court ruling in State Bank of Travancore vs. Commissioner of Income Tax (Appeal) (1986) 158 ITR 102 (SC) was cited, which establishes that income must be shown as actually received or accrued to be taxable.

The Court noted that the Assessing Officer relied heavily on Form 26AS, which showed commission credited and TDS deducted by the payer company, but did not verify whether the commission was actually paid or accrued to the assessee. The assessee contended that the payer company had neither paid the commission nor revised the TDS returns due to limitation constraints.

Key evidence included the commission account of the payer company, which did not mention the assessee's name, and the financial statements showing a lower commission payment than indicated in Form 26AS. The Tribunal found these contradictions significant and emphasized that mere reflection of TDS in Form 26AS is not conclusive proof of income accrual or receipt.

The Tribunal applied the law to facts by holding that addition based solely on Form 26AS without verifying actual payment or accrual is unsustainable. It treated the assessee's argument that the payer company had erroneously deducted TDS on commission not paid as credible and requiring further investigation.

The competing argument from the Revenue was that the payer company had deducted and deposited TDS correctly and that the assessee had taken credit for the TDS amount, justifying the addition. However, the Tribunal found that this did not override the need to verify actual receipt or accrual of income.

Conclusion: The Tribunal held that the addition of commission income based solely on Form 26AS without verifying actual payment or accrual is not justified and requires fresh examination.

Issue (b): Denial of proper opportunity of hearing and violation of natural justice

The assessee contended that no show cause notice was issued for filing particular documents, and that the authorities did not provide adequate opportunity to explain the discrepancies.

The Tribunal recognized the principle of natural justice requiring that the assessee be given a proper opportunity to present and substantiate their case. It noted that the First Appellate Authority and Assessing Officer failed to consider the assessee's submissions adequately.

The Tribunal directed that on remand, the Assessing Officer must provide reasonable and adequate opportunity of hearing to the assessee before passing any order.

Conclusion: The Tribunal found that the principles of natural justice were not fully complied with and directed that opportunity of hearing be afforded on remand.

Issue (c): Reliance on TDS credit in Form 26AS without examining payer company's financials

The Tribunal noted that the payer company's financial statements showed commission payments significantly lower than the amounts reflected in Form 26AS. The assessee argued that the payer company had wrongly debited commission and deducted TDS on amounts not actually paid.

The Tribunal referred to the coordinate bench decision in a similar case where the Tribunal remanded the matter for fresh examination after directing the assessee to produce cogent evidence that the payer company had not paid the commission as reflected in Form 26AS.

The Tribunal emphasized the need to reconcile the contradictory facts arising from the payer company's financials and the TDS returns, and to verify the true position before making any addition.

Conclusion: The Tribunal held that reliance on Form 26AS alone without examining the payer company's financials and payment records is erroneous and requires detailed scrutiny.

Issue (d): Revisability of TDS returns and claim of refund by the assessee

The assessee submitted that the payer company could not revise the TDS returns due to limitation and that no refund can be claimed by the assessee on the basis of the original or revised TDS returns when the commission was not actually received.

The Tribunal observed that the issue of revisability of TDS returns and claims of refund involves procedural and substantive tax law principles. The assessee's contention that TDS returns cannot be revised to claim refunds or change the source of income was noted but was not finally adjudicated in this order.

The Tribunal directed that these aspects be examined afresh by the Assessing Officer on remand, after hearing the assessee.

Conclusion: The Tribunal did not decide this issue finally but required fresh examination of the facts and law relating to TDS return revisability and refund claims.

Issue (e): Consideration of assessee's submissions regarding reversal of commission and non-receipt

The assessee submitted that the commission was reversed and not accrued or received, and that the authorities below did not consider these submissions.

The Tribunal found that the authorities failed to appreciate the assessee's explanations and did not investigate the reasons for reversal or non-payment of commission.

The Tribunal directed that on remand, the Assessing Officer must consider these submissions and examine the factual matrix thoroughly before passing any order.

Conclusion: The Tribunal held that the assessee's submissions must be considered and verified before making any addition.

Issue (f): Application of coordinate bench precedent

The Tribunal relied on the coordinate bench decision in a similar case involving identical facts and legal questions. The coordinate bench had remanded the matter for fresh examination after directing the assessee to produce cogent evidence regarding non-payment of commission despite TDS deduction by the payer company.

The Tribunal held that it is appropriate to follow the precedent and remand the matter to the Assessing Officer for fresh adjudication in line with the directions given by the coordinate bench.

Conclusion: The Tribunal remanded the matter for fresh examination consistent with the coordinate bench ruling.

3. SIGNIFICANT HOLDINGS

The Tribunal's crucial legal reasoning is encapsulated in the following verbatim excerpt from the coordinate bench decision it followed:

"The undisputed fact is that as per Form 26AS, the assessee has been shown as recipient of commission amounting to Rs. 48,56,061/-. It is also an undisputed fact that the assessee has shown only Rs. 20,12,260/-. It is also true that the assessee has taken full credit of TDS deducted by the payer on the commission shown in Form 26AS. Though the financial statement of the payer company shows that the company has paid total commission of Rs. 11 lakhs, then the statement of the counsel is that the payer company could not have debited Rs. 48.56 lakhs commission in the name of the assessee. If that being so, then how come the assessee has accounted for commission of Rs. 20.12 lakhs when the payer company has shown commission of Rs. 11.08 lakhs in his financial statement. These contradictory facts are emanating from the records. Therefore, it becomes necessary to ascertain true facts and, therefore, we deem it fit to restore the entire issue to the file of the Assessing Officer. The assessee is directed to demonstrate that the payer company never paid commission of Rs. 48,56,061/- by bringing cogent material evidence on record. The Assessing Officer is directed to examine the same and if satisfied with the claim of the assessee, then the Assessing Officer is directed to make addition of Rs. 4,85,606/- being TDS amount on which credit has been taken by the assessee in her return of income."

Core principles established include:

- Income must be shown as actually received or accrued to be taxable; mere reflection in Form 26AS and TDS credit is not conclusive evidence of income accrual.

- The Assessing Officer must verify contradictory financial records and consider the assessee's submissions before making additions.

- Principles of natural justice require that the assessee be given adequate opportunity to present evidence and arguments.

- TDS returns filed by the payer company that are barred by limitation for revision cannot be the sole basis for addition without examining the true facts.

Final determinations:

The Tribunal partly allowed the appeal for statistical purposes by remanding the matter to the Assessing Officer with directions to conduct a fresh examination of the facts, afford the assessee an opportunity of hearing, verify the payer company's financial statements, and consider all submissions before passing a fresh order.