TMI Blog2015 (12) TMI 375X X X X Extracts X X X X X X X X Extracts X X X X ..... inst revenue. Disallowance of commission paid to directors - allegation that commission was paid to avoid dividend distribution tax - CIT(A) deleted the addition - Held that:- the assessee during the year not only has paid dividend to the directors but has also paid commission @ 3% of the profits. It is also not disputed by the learned Departmental Representative that the assessee is continuously following the practice of payment of dividend as well as commission to the directors from past several years. It is also not disputed that the dividend payment to directors over the years has increased substantially and for the impugned assessment year, as noted by the learned Commissioner (Appeals), the assessee has declared dividend of approxi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted the facts are, the assessee company is engaged in the business of manufacturing and sale of submersible pumps and its accessories. For the assessment year under consideration, the assessee filed its return of income on 28th September 2010, declaring total income of ₹ 6,80,44,242. During the assessment proceedings, on the basis of information received from the Director General of Income Tax (Inv.), Mumbai, to the effect that purchases effected by the assessee are bogus, the Assessing Officer called upon the assessee to furnish the details. From the material on record, he noticed that the assessee had made bogus purchases from M/s. Samarth Enterprises, Bhayander, for ₹ 71,303, in the financial year 2009-10 and ₹ 5,129, f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and material on record, found that the assessee during the relevant previous year, has recorded purchases of ₹ 11,238, from Smarth Enterprises, in its books of account. He, therefore, directed the Assessing Officer to restrict the disallowance to that amount. Being aggrieved, the Department is in appeal before us. 5. Having considered the submissions of the parties and on a perusal of the material on record, we do not find any reason to interfere with the decision of the learned Commissioner (Appeals) on this issue. As can be seen, the learned Commissioner (Appeals), on verifying the books of account of the assessee for the relevant assessment year has given a factual finding that the actual purchases made by the assessee during th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s submitted, the commission is calculated as per the provisions of Companies Act, 1956, as a part or whole time working directors' remuneration package and TDS has been deducted under section 192B of the Act by treating it as part of salary. It was also submitted that section 17 of the Act also treats as commission part of salary. The Board resolution authorising payment of commission to the directors was also submitted. The Assessing Officer, however, did not find merit in the submission of the assessee. He observed that as per section 36(1)(ii), one of the conditions for allowing this type of expenditure is the amount payable to employees as bonus or commission should not otherwise have been payable to them as profit or dividend so th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Officer. As far as the decision in the case of Dalal Broacha Stock Broking Pvt. Ltd. (supra), the learned Commissioner (Appeals) found the same to be factual distinguishable from assessee's case as in that case there was a nexus between the payment of dividend and commission to the directors. Whereas, in the case of assessee, the commission payment of the directors were towards services rendered. He observed that when the Assessing Officer accepts the services rendered to the directors to be genuine, there is no reason to disallow the commission. The learned Commissioner (Appeals) relying upon certain decisions of the Hon'ble Delhi High Court in the case as referred to by him and a decision of the Tribunal, finally deleted the addit ..... X X X X Extracts X X X X X X X X Extracts X X X X
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