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Income Tax Appellate Tribunal, HYDERABAD BENCHES “A”: HYDERABAD
Before: SHRI SATBEER SINGH GODARA & SHRI LAXMI PRASAD SAHU
Assessment Year: 2013-14 C&K Management Ltd., Vs. Income-tax Officer, Secunderabad. Ward – 1(3), Hyderabad. PAN – AABCC 4481D (Appellant) (Respondent) Assessee by: Shri J. Maruthi Raghuram Revenue by: Shri Sunku Srinivas Date of hearing: 09/09/2021 Date of pronouncement: 04/10/2021 O R D E R PER L.P. SAHU, A.M.: This appeal filed by the assessee is directed against CIT(A) - 1, Hyderabad’s order dated 04/05/2018 for AY 2013-14 involving proceedings u/s 143(3) of the Income Tax Act, 1961 ; in short “the Act, on the following grounds of appeal: “1. On the facts and circumstances of the case, the order of the Ld. CIT(A) and Ld. AO is contrary to law and facts of the case.
2. The Ld. AO disallowed Rs.58,170/-w.r.t PF and ESI payments stating this amount is not paid before the due
:- 2 -: C&K Management Ltd., Sec’bad. date without any mention of the section of the IT Act under which it is disallowed. Section 43B of IT Act is a Non-Obstante Clause and PF and ESI payments which are paid in this case before the due date of filing the return of income for A Y 2013-14 should be allowed as deduction. The Ld. AO erred in disallowing this amount and Ld. CIT(A) erred in upholding the same.
3. The Ld. AO disallowed Rs.1,87,953/- w.r.t interest on delayed payments of statutory dues. These payments pertain to late filing fees for delay in filing service tax returns and are incorrectly represented as penalty on statutory payments in financial statements. Hence, the Appellant is of the view that this expense should be allowed as deduction u/s 37 of the IT Act. The Ld. AO erred in disallowing this amount considering it as penalty on statutory payments and Ld. CIT(A) erred in upholding the same.
4. The Ld. AO disallowed Rs.10,60,303/- u/s 36(1 )(viia) of IT Act stating it is Provision for Bad and Doubtful Debt only. The Appellant learned that the Client (ETQM- College, Dubai) was unwilling to pay the dues for the services rendered even after several communications and continuous follow-ups with the Client. So, the Appellant considered it as irrecoverable debt from the Client. This amount is shown as Provision for Bad and Doubtful Debt in Profit and Loss Account instead of showing as Bad Debts. The same amount is reduced from the Sundry Debtors in the Balance Sheet. It is pertinent to note that this amount was offered as income in the earlier year. Hence, the Appellant is of the view that it should be allowed as bad debt u/s 36(1)(vii) of IT Act. The Ld. AO erred in disallowing this amount and Ld. CIT(A) erred in upholding the same.
5. The Ld. AO erred in the assessment order in not quantifying (a) the amount of income tax refundable to the Appellant and (b) the interest payable to the Appellant on the income tax refund amount.”
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We notice at the outset that assessee’s instant appeals suffer from 15 days delay in filing before the ITAT. To this effect, the assessee filed a petition along with an affidavit for condonation of delay wherein it was inter-alia, affirmed that due to the fact that taking decision between the assessee and the ld. AR to file the appeal before the ITAT against the order of CIT(A), which is factually incorrect, as per the assessee, caused the impugned delay in filing of the instant appeals. Case law Collector Land Acquisition vs Mst. Katiji & Ors, 1987 AIR 1353 (SC) and University of Delhi Vs. Union of India, Civil Appeal No. 9488 & 9489/2019 dated 17 December, 2019, hold that such a delay; supported by cogent reasons, deserves to be condoned so as to make way for the cause of substantial justice. We accordingly hold that assessee’s impugned delay is neither intentional nor deliberate but due to the circumstances beyond its control. The same stands condoned. Case is now taken up for adjudication on merits.
Briefly the facts of the case are that the assessee company filed its return of income on 30/09/2013 declaring loss of Rs. (-) 58,18,737/- under normal provisions and under MAT u/s 115JB admitted an amount of Rs. Nil for the AY 2013-24, which was processed u/s 143(1) of the Act. Subsequently, the case was selected for scrutiny under CASS and accordingly, statutory notices
:- 4 -: C&K Management Ltd., Sec’bad. were issued to the assessee, against which the AR of the assessee filed the required information.
3.1 After examining the information submitted by the assessee, the AO completed the assessment assessing the total income of the assessee at Rs. (-) 45,12,311/- by making various additions.
When the assessee preferred an appeal before the CIT(A), the CIT(A) partly allowed the appeal of the assessee.
Aggrieved, the assessee is in appeal before the ITAT.
As regards ground no. 2 relating to disallowance of Rs. 58,170/- with reference to PF and ESI payments, during the assessment proceedings, the Assessing Officer noticed that the assessee company had not remitted the PF & ESI payments to the tune of Rs.2,28,512/- before the due date and the same is not an allowable expenditure. The assessee company already disallowed an amount of Rs. 1,70,342/- while computing its total income, therefore the balance amount of Rs.58,170/- was disallowed and added back to the returned income.
6.1 On appeal, the CIT(A) confirmed the same.
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6.2 We have considered the rival submissions and perused the material on record as well as gone through the orders of revenue authorities. We observe from the order of lower authorities that the assessee has paid the entire dues of employees P.F. contribution before the filing of income tax return. The income tax return was filed on 30.09.2013 i.e. before the due date prescribed for filling the return of income. The issue has been settled that if the assessee has paid the PF and ESI payments before the due date of filing of return income u/s 139(1) of the Act, no disallowance is warranted as held by the coordinate bench of the ITAT Hyderabad in case of for Assessment Year: 2013-14, in case of Value Momentum Software Services Private Limited, Vs Deputy Commissioner of Income Tax, in which, it was held as under: “5. Next comes the latter issue of Section 43B disallowance of Rs.8,11,648/- pertaining to employees provident fund. It is not in dispute that learned lower authorities held that the same had to be deposited before the due date prescribed in the corresponding statute than the due date for filing Section 139(1) return. The Revenue’s case in tune thereof relies on Section 36(va) read with explanation thereto that it is not Section 43B but the former provision which is applicable in such an instance. We find no merit in the Revenue’s foregoing stand. We take note of the explanatory memorandum to the Finance Act, 2021 proposing amendment in both Section 36(va) as well as Section 43B by inserting corresponding Explanations that although the impugned employees provident fund comes under the former provision only, the same is :- 6 -: C&K Management Ltd., Sec’bad. applicable from 01-04-2021 onwards. Meaning thereby that the legislature itself has condoned the impugned default before 01-04-2021. We thus delete the impugned employees provident fund disallowance of Rs.8,11,648/- for this precise reason alone. Necessary computation to follow as per law Respectfully, following the above judgement of the co- ordinate bench of Tribunal, we delete the addition confirmed by the ld. CIT (A) on this issue. Accordingly, ground No. 2 is allowed.
As regards ground No. 3 relating to disallowance of Rs. 1,87,953/- towards interest on delayed payments of statutory dues, during the assessment proceedings, the Assessing Officer noticed from the P & L account that the assessee company had paid an amount of Rs.2,03,523/- towards penalty on statutory payments, which was not an allowable expenditure u/s.37 of IT Act. However, on verification of the computation of Income it was noticed that the assessee had already disallowed an amount Rs.15,570/- out of total amount of Rs.2,03,523/- and for balance amount of Rs. 1,87,953/ - the assessee company failed to give any reply. Therefore the balance amount of Rs.1,87,953/- was disallowed and added back to the returned income.
7.1 On appeal, the CIT(A) confirmed the disallowance made by the AO.
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7.2 We have considered the rival submissions and perused the material on record as well as gone through the orders of revenue authorities. We, observe that before the ld. CIT (A) the assessee submitted that it was a late filing fee for service tax return, which has not been accepted by the ld. CIT (A) and he held that as per financial statements Note No. 26(a)(iv) it was clearly mentioned as “penalty on statutory payments”. If we consider the contention of the AR that it is a late fee for filing of service tax return, then, it is allowable expenditure u/s 37(1) of the Income Tax Act. 1961, because in the service tax Act/Rules, allow the assessee for filing of its service tax return with payment of late filing fee, therefore, it does not come under the Explanation 1 of U/s 37(1) of the Income Tax Act. 1961. Before us, the AR has not filed any evidence about the exact nature of payments. Therefore, in view of the contradicting findings and submissions, we deem it fit and proper to remit the issue back to the file of AO for a limited purpose of verification. If the AO finds that the payments is towards late fee for filling service tax return, then, the AO is directed to delete this addition or if found, otherwise, he will decide the issue as per law. Therefore, this ground of appeal is allowed for statical purpose.
8. As regards ground No. 4 relating to disallowance of Rs. 10,60,303/- u/s 36(1)(viia), during the assessment proceedings, the Assessing Officer noticed that the assessee
:- 8 -: C&K Management Ltd., Sec’bad. company has claimed an amount of Rs.10,60,303/- as expenditure under the head 'provision for Doubtful debts'. During the scrutiny, the assessee submitted that these debts were from a Dubai contract which has come to a closure during the year. While settling accounts, the customer did not agree to some invoices raised prior to 31.03.2010 and there is no chance of recovery. Therefore, the management decided to write off 50% of the outstanding as on 31. 03,2013 (50% of 21.20,604/-) and hence debited the same to the P & L account. The AO observed that this was not accepted and moreover it was noticed from the Profit & Loss A/c. that this was provision only and not write-off from the ledger account of debtor. He, therefore, disallowed Rs. 10,60,303/- u/s 36(1)(viia) of the Act. (AO wrongly mentioned the disallowed amount as Rs. 42,68,995/- instead of Rs. 10,60,303/-) .
8.1 The CIT(A) confirmed the disallowance made by the AO.
8.2 The AR reiterated the submissions made before the lower authorities and further relied on the decision of the Hon’ble Supreme Court in the case of TRF Ltd Vs. CIT [2010] 190 Taxman 391 (SC) wherein it was held that it is not necessary for the assessee to establish that debt has become irrecoverable (i.e. bad) in case a provision has been made in the preceding previous years. In the Circular No.
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12/2016, dated 30th May, 2016 issued by the CBDT, it was mentioned as under: “Claim for any debt or part thereof in any previous year shall be admissible u/s.36(1)(vii) if it is written off as irrecoverable in the books of accounts of the assessee for that previous year. It is also mentioned in same circular, in point 3 that it is not necessary for assessee to establish that the debt, In fact has become Irrecoverable; it is enough if the bad debt is written off as irrecoverable in the books of accounts of assessee” 8.3 The ld. DR. relied on the order of the lower authorities.
8.4 We have considered the rival submissions and perused the material on record as well as gone through the orders of revenue authorities. On going through the financial statements, we find that the assessee has shown it under the note No. 16 - “Other Non- Current assets” and under this note at Sr. No. 03 has shown “Trade Receivables” and further at Sr. No. 04 the assessee has reduced an amount of Rs. 10,60303/- under the account head of “Provision for doubt full debts”. The same amount has also debited into the P&L Account under the same account head at Note No.
He has also shown under Note No. 18 - Trade Receivables. The assessee did not explain why the Trade Receivables has been shown at two different places. During the course of hearing, it was specifically asked the assessee that whether the assessee has written off the provision for bad debts from the debtors, but, he
:- 10 -: C&K Management Ltd., Sec’bad. was unable to explain the same. It is also clear from the financial statements that the assessee has made only a provision, but, not written off in its books of account. Further, we find that out of total bad debts claimed, the assessee has made a provision of 50% in its books of account during the year, for which there is no plausible explanation from the assessee. In the impugned case, the assessee itself has failed to establish that the debt has become irrecoverable. In its own submissions, the appellant said that their significant customer (ETQM College, Dubai) did not agree to some invoices raised prior to 31/03/2010 i.e. to say that the bills have not been validated as expenses allowable under the I.T. Act. Therefore, the case law relied on by the ld. AR of Hon’ble Apex Court and Board Circular cited supra are not applicable to the case of the assessee. The ld. CIT(A) has rightly dismissed the appeal of the assessee on this count. Accordingly, the grounds raised by the assessee on this issue are dismissed.
In the result, appeal of the assessee is partly allowed for statistical purposes in above terms.
Pronounced in the open court on 4th October, 2021.