M/S. TITAGARH WAGONS LTD.,KOLKATA vs. CIT, LTU, KOLKATA, KOLKATA

Present for: Appellant by : Shri Siddharth Jhajharia, FCA Respondent by : Shri Sudipta Guha, CIT, DR Date of Hearing : 23. 02.2023 Date of Pronouncement : 27.03.2023 O R D E R

PER GIRISH AGRAWAL, ACCOUNTANT MEMBER:

2. Assessee has taken eight grounds of appeal challenging the initiation of revisionary proceedings u/s. 263 of the Act and passing an order thereon on a solitary issue of claim of deduction of Rs.3,24,45,459/- on account of bad debt actually written off in the books of the assessee. For the sake of brevity the grounds are not reproduced.

Titagarh Wagon Ltd., AY: 2013-14

3.1. On these observations, a show cause notice was issued u/s. 263(1) of the Act dated 23.02.2018. The contents of show cause notice are reproduced as under:

Titagarh Wagon Ltd., AY: 2013-14 “1. An assessment order 18.05 2016 was passed u/s 143(3) of Income Tax Act, 1961 in the case of M/s. Titagarh Wagons Limited by the Assessing Officer i.e Assistant Commissioner of Income Tax (LTU)-2, Kolkata. On examination of case records of the said assessment order, it has been observed that during the year under consideration, the Assessing Officer had allowed a sum of Rs.3,24,45,459/- debited/written off under the head Doubtful Advances/irrecoverable advance u/s 36 of Income Tax Act, 1961. In fact, assessee company offered an advance of Rs. 3,24,45,459/- (three Crores twenty four lakh forty five thousand and four hundred fifty nine) to M/s Greysham Private Limited (Vendor) for the purpose of supply of Air Brake equipment and Slack Adjuster during the period 2008 to 20l0. Vendor was an Associated Company of the assessee i.e. M/s Titagarh Wagons Limited. Meanwhile, as per Assessee Company, the Vendor failed to supply goods for which advance offered due to bankruptcy and case was filed against for recovery of advance of Rs. 3,24,45,459/- Given..

3. Prima facie, the assessee company has claimed deduction of Rs.3,24,45,459/- twice i.e. in the assessment year 2011-12 & again in 2013- 14 while suit filed for recovery of advance given to M/s. Greysham Private Limited is still pending in the Court. As on date the total deduction claimed on identical ground is Rs.(3,24,45,459x2)= 6,48,90,918/-.

4. At the time of scrutiny assessment Assessing Officer allowed this sum of Rs.3,24,45,459/- (Three Crores Twenty Four Lakh Forty Five Thousand and Four Hundred Fifiy Nine) as deduction from the income as claimed by the assessee. The assessee has claimed the deduction of Rs.3,24,45,459/- u/s. 36 of Income Tax Act, 1961. …..

6. These [(i) to (xiii)] were some of the important issues re3quired to be examined before allowing the writing off debt and specially looking into the close association between the parties involving a huge amount paid as advance to a known person and being claimed as bad debt. Furthermore, it was required to examine the legality of the allowance of this loss being capital in nature and being not a loan given in the ordinary course of business by the assessee or to purchase raw material required on day to day basis. It was not a routine revenue expenditure of the assessee being claimed as deduction out of business profit.”

3.2. In response to the show cause notice, assessee furnished its reply which is reproduced in the impugned order. The reply of the Titagarh Wagon Ltd., AY: 2013-14 assessee contains threefold contentions, challenging the revisionary proceedings invoked by the Ld. CIT – (i) in the assessment year 2011-12 provisions of doubtful debts claimed by the assessee has already been added and accepted by the assessee at the stage of Ld. CIT(A). (ii) Ld. AO had already examined the claim of the assessee and allowed it after due application of mind in AY 2013-14. (iii) The advance made by the assessee and claimed as a bad debt is a business loss.

3.3. Ld. Counsel submitted that in respect of claim of deduction made on account of provision for doubtful debts in AY 2011-12, Ld. CIT categorically noted the relevant facts that AO had disallowed an amount of Rs.344.45 Lakhs debited in Schedule 20 of its P&L Account. Assessee had shown a recovery of Rs. 20 lakhs during the year and now the amount debited in the computation is Rs.324.45 lac. In the written submission filed before Ld. CIT(A) for AY 2011-12 the same ground was ‘not pressed’ for relief before the Ld. CIT(A).

3.4. Ld. CIT also took note of the observation made by Ld. AO while making disallowance in AY 2011-12 which are reproduced as under: “B. Provision for Doubtful Advances: (i) The assessee has debited an amount of rs.344.45 lakh in schedule-20 of its P&L A/c on account of ‘provision for doubtful advances’ for the assessment year under consideration. (ii) In this regard, the assessee was asked to furnish the details of doubtful advance vide notice u/s. 142(1) of the I T Act dated 07.01.2014. It is found from the submission of the assessee that the assessee had given advances to its associated company, M/s. Greysham & Co. (P) Ltd. In earlier years for supply of raw materials and other components such slack adjuster and air break equipments. (iii) The assessee was further asked to explain why provision for doubtful advances of 344.45 lakh will not be disallowed for want of substantial evidences.

Titagarh Wagon Ltd., AY: 2013-14

(iv) In reply the A/R of the assessee submitted a written submission which is reproduced as under:- "Your goodself has mentioned that the provision for advances debited in the profit and loss account at Rs. 344.45 lakh is not allowable. In such respect, your goodself may kindly appreciate that the assessee had given advances to its associated company M/s. Gresham & Co. (P) Ltd. For supply of raw material and other components such as slack adjuster, air break equipments in earlier years. The said company was manufacturing such components and which was being used in the final product manufactured by the assessee company. The advance was given to such company was adjusted towards supply made by said company to the assessee company. Since April 2010, manufacturing activity in the said associated company has been haulted due to operational difficulties and other reasons and it had shut down its manufacturing activity since such time. As such, the amount of Rs 344.45 lakh is the unadjusted advance remaining since such period. Your goodself may kindly appreciate that the advance was given in the course of business and the said associated company was unable to return the same to the assessee company the assessee company has treated the same as business loss and the provision in such respect was debited in the P/L A/C and has been claimed as such in the computation of income. In such respect, your goodsef may kindly appreciate that since the advance was given in the course of business, the assessee company unable to recover/adjust the same and it has claimed as business loss and the same is allowable. In such respect your attention is drawn to the following decision. " a) Mohan Meakin Ltd. V. CIT (2012) 348 ITR 109 (Del) b) A.W.Figgis & Co. P. Ltd. v CIT (2002) 254 ITR 63(Cal). (v) The submission of the assessee was examined carefully and on perusal of the facts of the case, it is found that the assessee company without putting any effort for recovery/adjust of advance money from its associated company, it has claimed expense in the form of provision of doubtful advance. The contention of the assessee as mentioned in its submission is not acceptable. Hence, the entire amount of Rs 344.45 lakh debited in the P&L A/c as provision for doubtful advance is disallowed and added back to the total income of the assessee. [Disallowance: Rs.344.45 lakh]”

3.5. After considering the submissions made by the assessee, Ld. CIT drew his consideration to hold that Ld. AO has passed the assessment order without taking all the documents on record, conducting enquiry, examining the legal issues involved and the material placed on record,

Titagarh Wagon Ltd., AY: 2013-14 making the order erroneous insofar as it is prejudicial to the interest of the revenue. He also directed the Ld. AO who may carry out the examination and verification from the accounts of Greysham & Co. Pvt. Ltd. for AY 2011-12 and AY 2013-14 regarding the adjustment and reflection in the final account. He also directed to examine the records of Greysham & CO. Pvt. Ltd., the treatment of the alleged advances in their final account and get information from M/s. Greysham & CO. (firm) on these transactions to come to a legally valid and appropriate conclusion with more accurate information. Aggrieved, the assessee is in appeal before the Tribunal.

Titagarh Wagon Ltd., AY: 2013-14 4.1. In this respect, attention was drawn to the notes on account of Greysham & Co. Pvt. Ltd. (for year ended 31.3.2010) which is reproduced hereunder : “M/s. Greysham Pvt. Ltd. entered into a Business Transfer Agreement in September, 2008 with M/s Greysham & Co. a partnership firm engaged in the manufacture and sale of certain critical components e.g. Air Brake, lack Adjuster, etc. which are used in the manufacture of wagons by )TWL), the holding company. In terms of the said agreement the business and liabilities, rights, permission, privileges, etc. pertaining to the said firm would be transferred to the company on fulfilment of the terms and in the agreement. Pending this, the firm would continue to supply the components required by TWL directly. With a view to carry on the business and meet the working capital requirements, the firm has requested the company to provide necessary resources for which the company has entered into the following arrangements. (a) In term of an agreement the M/s. Greysham Pvt. Ltd. has received amounts as interest free trade advance from Titagarh Wagons Ltd. (TWL), the holding company (outstanding balance as on 31.03.2011 Rs.3,44,45,459/- which is repayable by way of adjustments against bills for supply. (b) In terms of a separate agreement entered into between M/s Greysham Pvt. Ltd. and the aforesaid partnership firm, M/s Greysham Pvt. Ltd. has given to the said firm as interest free trade advance (outstanding amount Rs. 4,05,85,420/- as on 31.3.2011) which is recoverable (under a back to back arrangement) against the bills for supply as mentioned in (9) (a) above. However, the same is subject to confirmation the said advances are considered recoverable in terms of agreement above referred to M/s Greysham Pvt. Ltd. has filed a case for breach of one of the clause of the said agreement against the firm and its partners 'at Hon'ble City Civil Court. "

4.2. Ld. Counsel further emphasized on the fact that assessee had claimed the deduction of the same amount towards provision for bad and doubtful debts in AY 2011-12 which was disallowed by Ld. AO. Against this disallowance, assessee went in appeal before the Ld. CIT(A)in Appeal No. 12/CIT(A)-22/ACIT-LTU-2/11-12/17-18/Kol wherein ground taken by the assessee for this disallowance was “not pressed”. Ld. Counsel thus, asserted that this amount claimed by assessee as deduction has suffered its due tax in AY 2011-12 which has not been contested by the assessee. Relevant extract of the order of Ld. CIT(A) is reproduced as under:

Titagarh Wagon Ltd., AY: 2013-14

Titagarh Wagon Ltd., AY: 2013-14

.- 4.3. To this effect, Ld. Counsel also placed on record an affidavit dated 20.02.2023 from Shri Saurav Singhania, a director of the assessee wherein these facts have been affirmed. The relevant contents of the said affidavit are as under:

“1. That, the Authorised signatory has been duly authorized by the Board of Directors of the company and as such is competent to file this affidavit.

2. That, the captioned appeal has been filed by the appellant aginst the order of CIT(LTU) (order dt. 28.3.2018) 3. That, the subject matter in the aforesaid order u/s 263 pertains to write off of bad debt of Rs. 3,24,45,459/- ( Rs. 3,44,45,000/- Less: Rs. 19,99,541/-).

4. That, the aforesaid amount write off i.e. Rs. 3,44,45,000/- was provided for in the books of account as "PROVISION TOWARDS DOUBTFUL DEBTS" in A.Y 2011-12 and the AO in the order passed u/s 143(3)/144C(4) dt. 18.5.2015 had disallowed such provision in normal computation of income.

Titagarh Wagon Ltd., AY: 2013-14 5. That, the appellant in the proceedings before CIT(A) for A.Y 2011-12 in appeal No. 12/CIT(A)-22/ ACIT(LTU)-2011-12/17-18/Kol dt. 26.2.2018 [at ground No.9] had not pressed against the disallowance of the impugned amount shown as "provision for doubtful debt" and had withdrawn such ground before CIT(A). 6. That, the provision for doubtful debt in A.Y 2011-12 will not be pressed as claim for deduction of such assessment year in any further proceedings.”

4.4. Ld. Counsel thus stated that in the year under consideration i.e. AY 2013-14, assessee has actually written off the amount of bad debts in the books of account and thus the same was claimed as deduction from the computation of income which was allowed by the Ld. AO after due examination and verification of the records and application of mind. Ld. Counsel referred to the order sheet entries to demonstrate that relevant enquiries were made and were complied with which are placed in paper book. He referred to order sheet entry dated 24.02.2016 in particular, wherein details of bad debts submitted are noted. Ld. Counsel also referred to the written submission made before the ld. AO vide letter dated 24.02.2016 and pointed to the details of bad debts written off by the assessee. He also referred to Note no. 1 disclosed in the audited financial statement of the assessee by the auditor, which Ld. CIT(A) has annexed to the impugned order as Annexure “C”. In this respect, the same are reproduced as under:

Titagarh Wagon Ltd., AY: 2013-14

Titagarh Wagon Ltd., AY: 2013-14 4.5. Ld. Counsel also reiterated that the issue on which the present revisionary proceedings were initiated had been subject matter of addition in AY 2011-12 and as such the same cannot be considered in AY 2013-14 for disallowance. He also stated that the said sum was advanced for supply of raw material and the write off is due to irrecoverability of the same and as such is an allowable business loss. On a specific query by the Bench to the Ld. Counsel in respect of effect of recent decision by the Hon’ble Supreme Court in the case of PCIT Vs. Khyati Realtors Pvt. Ltd. (2022) 447 ITR 167 (SC), ld. Counsel made a detailed submission to demonstrate that it is distinguishable in the present set of facts for its applicability. He submitted that the said decision of the Hon’ble Supreme Court does not apply to the facts of the assessee in view of the following :

Titagarh Wagon Ltd., AY: 2013-14 “a) Advance given was for supply of slack adjuster which was required for finished products and as such in nature of raw material and was very much in course of business of appellant. b) Advance was not capital asset, since said advance for Rs.35,00,000/- is a separate transaction and has not written off and is outstanding. c) Such write off was claimed u/s. 28(i) as ‘BUSINESS LOSS’ and not u/s. 36(1)(vii) r.w. 36(2).”

4.6. He further submitted that in the said decision, according to the Hon’ble Supreme Court, it is mandatory for the assessee to prove that the advance against which claim of bad debt is made is “in its ordinary course of business”. In the present case, according to the Ld. Counsel, the advance in question was wholly and exclusively for the purpose of business of the assessee since assessee is in the business of manufacturing of railway wagons and the claim is in respect of advance given by it to Greysham Co. Pvt. Ltd. for supply of raw material, as a business loss.

Titagarh Wagon Ltd., AY: 2013-14 been considered and dealt with in AY 2011-12 wherein claim of the assessee on account of provision for bad and doubtful debts had been disallowed by Ld. AO for which assessee had accepted the disallowance by not pressing the ground taken before the Ld. CIT(A) in the appeal filed by the assessee. Relevant extracts in this respect are reproduced above in this order.

6.1. For the year under consideration, assessee has claimed bad debts when it has only written off the advances given to Greysham & Co. Pvt. Ltd. for supply of raw material from its books of account. The claim is of the same amount which was disclosed in AY 2011-12 and has suffered its due taxes. We also take note of the affidavit by the director of the assessee affirming that disallowance made in AY 2011-12 on the issue raised by the Ld. CIT in the present revisionary proceeding has been accepted and not contested further even though the appeal for AY 2011-12 is pending for disposal before the ITAT, in ITA no. 1064/Kol/2018. To ascertain this fact, records of appeals for AY 2011-12 and 2012-13 pending before the Coordinate Bench of ITAT, Kolkata in and ITA No. 1065/Kol/2018, respectively as well as C.O No. 14 & 15 respectively were called for perusal . We note that assessee has not contested on this issue in the said appeals pending for disposal.

6.2. It is also noted that Ld. AO has duly examined and verified the records in respect of claim made by the assessee in the relevant disclosures were made in the audited financial statements of the assessee for AY 2011-12, placed on record. We also take note of the fact that assessee had given advance in earlier years for supply of raw material to Greysham Co. Pvt. Ltd. Supplies were made to the assessee in the earlier years. Subsequently, dispute arose between the Titagarh Wagon Ltd., AY: 2013-14 assessee and the supplier company resulting in the claim of bad debts by the assessee towards the balance advance lying with the supplier. The said advance against the supply of raw material is claimed by the assessee as a business loss and is allowable in computing the income of the assessee under the Act. From the above noted facts and observations, we find that the revisionary proceeding invoked by Ld. CIT did not meet the twin criterion enunciated in section 263 of the Act.

7.1. Further, from the submissions made by the Ld. Counsel in respect of decision of Hon’ble Supreme Court in the case of Khyati Realtors Pvt. Ltd. (supra), we note that decision is distinguishable on the facts of the present case. Considering the facts and circumstances of the case, the judicial precedence referred above and the threefold contentions taken by the Ld. Counsel as stated above, we are convinced to quash the impugned revisionary order passed u/s. 263 of the Act. Accordingly, grounds taken by the assessee in this respect are allowed.

Order pronounced in the open court on 27th March, 2023.