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In 250ITR772 the assessing officer alleged that the higher price paid by the assessee to the cane growers was in contravention of its bye-laws. The Bombay High Court flatly dismissed the case of the revenue and pointed out that for the income tax purposes one has to go by the test of commercial expediency where the reasonableness of the expenditure has to be judged from the point of view of a businessman and unless the payment is sham no part of it shall be disallowed. In this case, the assessee also took into account the price paid by neighboring sugar factories and the argument was that if the karkhana had paid a lesser price, the karkhana could not have been able to procure sugarcane for the running of the factory because the sugarcane growers would not have supplied sugarcane to the assessee-karkhana if it offered a price below the price offered by neighboring karkhanas.


This probability may hold true in the selection of uncontrolled comparable prices in the context of transfer pricing in the current environment in choosing the best available comparable. Thus there is no unfolding of this universal principle of commercial expediency though without escaping note of the Special Bench decision in 49 ITR (Trib) 589 (Kol) to the effect that the transfer pricing provisions, being anti-abuse provisions with the sanction of the statute, come into play in the specific situation of certain transactions with the associated enterprise. The general provisions of commercial expediency may have to give way to these specific anti-abuse provisions. This was a case of interest-free loan to a subsidiary and the spl bench held that the commercial expediency of a loan to a subsidiary was wholly irrelevant in ascertaining the arm’s length interest on such a loan. However, there is also a view that when commercial expediency of payment was recognized, it could not be said that such payment wasn’t at ALP vide Showa India (P.) Ltd. v. Deputy Commissioner of Income-tax, Circle 8 (1), New Delhi.



Further in the case of Waldies Ltd. Vs. Income-tax Officer (246ITR29) it was contended that the excess payments on account of commission and rent were made for extra commercial consideration as the recipient company was holding 36 percent. of the shares of the assessee-company. On this basis, the assessing officer attempted to use his reassessment jurisdiction in this case on the advice of the internal audit party which act was found inappropriate by the Calcutta High Court following the three-judge Bench judgment of the Supreme Court of India in J. K. Woollen Manufacturers v. CIT [1969] 72 ITR 612. The SC held that the test of commercial expediency for determining whether an expenditure was wholly and exclusively laid out for the purpose of business, the reasonableness of the expenditure has to be adjudged from the point of view of the businessman and not of the Income-tax Department.


Way back on March, 17, 1967 the Apex Court for the first time in the case of Commissioner of Income-tax Vs. Walchand and Co. Private Ltd. (65ITR381) laid down the rule of commercial expediency. In this case, the assessing officer was of the view that since the increase in the remuneration of the salary of the officers was not reflected in the increase in the profits of the assessee the same could not be justified as laid out wholly and necessarily for the purposes of the business. At this, the Apex Court remarked that it is not the function of the Tribunal to determine the remuneration, which in their view should be paid to an employee of the assessee. An employer in fixing the remuneration of his employees is entitled to consider the extent of his business, the nature of the duties to be performed, and the special aptitude of the employee, future prospects of extension by the business, and a host of other related circumstances. It is erroneous to think that increased remuneration can only be justified if there is a corresponding increase in the profits of the employer.


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