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TMI Blog1984 (1) TMI 129X X X X Extracts X X X X X X X X Extracts X X X X ..... his appointment dt. 1st May 1977 the following are the emoluments to which the assessee is entitled under the terms of the appointment: "(a) You will be paid a salary of Rs. 200 (Rupees two hundred only) per month during your posting at Visakhapatnam shop. (b) Commission: During your posting at Visakhapatnam shop, you will be paid 65% of the shop pool selling commission. The difference between your previous rate of selling commission and revised rate of selling commission will revert to the company. --You will be HP Paid collection commission as per existing applicable rules in this regard. -- You will be paid aggregating commission as per existing applicable rules in this regard. (c) The management undertakes no liability to provide ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is pecuniary expenditure incurred in attracting customers to the counter. The ITO however, was unable to locate any provision in the IT Act, 1961, under which such expenditure can be claimed and allowed. He felt that commission is part of salary as per the provisions of s. 17 of the IT Act, and it cannot be treated either under the head "business" or under the head "other sources". Therefore, he disallowed the deduction of Rs. 12,752 claimed and had taken the gross commission of Rs. 45,489 earned by the assessee as part of his income and finalised the assessment for 1981-82 under his assessment order dt. 28th November, 1981. 3. Aggrieved against the said disallowance, the assessee went in appeal before the AAC It is argued before him that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e exemption is only to the extent to which such expenses are actually incurred as laid down in CIT vs. Tejaji Farasram Kharawalla Ltd. (1968) 67 ITR 95 (SC). The AAC further held that the assessee fulfilled both the conditions in this case in as much as the ITO recorded a finding that the assessee produced evidence to show that he incurred an expenditure of Rs. 12,752. In appeal proceedings also, the assessee produced evidence to show that the amount of Rs. 12,752 has been incurred in earning the commission which relates to the procurement of business, incidental charges, travelling expenses etc. Therefore, in view of all the above, the AAC held that Rs. 12,752 should be deducted from the gross commission paid to the assessee and only the n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (Trib) 21, P.C. Balasubramaniam vs. I.T.O. (1982) 26 CTR (Trib) 21. In that case also, an employee of Remington of India Ltd. used to procure orders and was paid commission. He claimed deduction for travelling expenditure incurred by him. The ld. Single Member in that case upheld the ITO's order that the income from commission was assessable under the head 'salary' but he allowed deduction of 30% of income on account of expenditure incurred in earning such income u/s 10(14) of the IT Act. On the other hand, the ld. Departmental representative contended that deductions which are specifically mentioned u/s 16(1) only could be given and as the type of expenditure claimed as deduction in this case was not complicated u/s 16(1), it cannot be al ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... employee would try to get as much commission as possible, by trying to effect maximum sales of the product. It would be possible only if in his turn he pays commission or brokerage to others and if he makes an extensive tour to propagate the product also. For instance, because of the keen interest for the total involvement of the assessee and others. the sales of machines as well as fans of M/s Usha Ltd. increased over the years as follows: Accounting year Machine Sales Fans Sales 1978-79 102 1339 1979-80 249 1595 1980-81 314 1826 For the increase in sales, the personal effort or involvement of the employees of Allied Sales Corporation must be there. As can be seen from the appointment order of the assessee. It speaks only abo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... this, I am of the view that a part of the commission received by the assessee would be exempt under section 10(14) of the Act. Taking into account the amount of commission income earned by the assessee, it would be reasonable to allow 30% as expenditure incurred for earning such income. The income-tax Officer is directed to modify the assessment accordingly." The deduction claimed in this case worked out to 26 or 27% of the total commission earned by the assessee. The decision of the Chandigarh Bench also helps the assessee in his defence. Therefore, we feel that the expenditure incurred of Rs. 12,752 can be allowed as deductible expenditure u/s 10(14) of the IT Act. We, therefore, direct the ITO to exclude the sum of Rs. 12,752 from out ..... X X X X Extracts X X X X X X X X Extracts X X X X
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