S. 36(1)(ii) Without Evidence AO can not presume Commission paid as Dividend

In the case of ACIT Vs. Bony Polymers Pvt. Ltd. (supra), it was held by the Co-ordinate Bench that in the absence of any material or evidence to show that the commission is being paid as dividend to the shareholders the dis allowance u/s 36 (1)(ii) was not permissible. The Companies Act, 1956 contains the limitation and restrictions in the matter of payment of dividend and such obligation of the company either to pay or not to pay dividend cannot be assumed. The Assessing Officer cannot presume that had this commission not paid would have necessarily being paid as dividend to the shareholders....