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Income Tax Appellate Tribunal, DELHI BENCH ‘B’ : NEW DELHI
PER SHAMIM YAHYA, ACCOUNTANT MEMBER :
These are cross appeals by the assessee and Revenue for the Assessment Year 2013-14 and appeal by the assessee for the Assessment Year 2014-15.
Since the issues are connected and appeals were heard together, these are being consolidated and disposed off by this common order.
REVENUE’S APPEAL (AY 2013-14)
3. The grounds of appeal in Revenue’s appeal read as under :-
“1. On the facts and in the circumstances of the case and in law, the Ld. CIT(A) has erred in deleting the disallowance of Rs.4,28,16,257/- on account of subscription fees paid.
2. On the facts and in the circumstances of the case and in law, the Ld. CIT(A) has erred in deleting disallowance u/s 40(a)(ia) for the payment made of Rs. 4,39,28,027/- to Deloitte Touche Tohmatsu India (P) Ltd. (DTTIPL) by ignoring fact that DTTIPL has rendered services to the assessee and that the payment was made in lieu of these services which cannot be termed as reimbursement as this payment partakes the character of expense for expense for services in the hands of the assessee.
3. On the facts and in the circumstances of the case and in law, the LD. CIT(A) has erred in deleting disallowance of remuneration paid to partners u/s 40(b) amounting to Rs.16,66,667/- by ignoring fact that the remuneration was to be paid proportionate to the period of working as per partnership deed.”
Apropos disallowance on account of subscription fee paid : At the outset, on this issue, ld. counsel of the assessee submitted that ITAT, & 2012-13 has decided the issue in favour of the assessee. We note that pursuant to AO’s disallowance of subscription fee of Rs.4,28,16,257/- paid for membership of Deloitte Global Network. Ld. CIT (A) has decided the issue in favour of the assessee by noting that ITAT, Delhi Bench in AY 2009-10 has decided the issue in favour of the assessee. Ld. CIT (A) reproduced the ITAT order in that case and held that since the identical issue on same fact has been decided in favour of the assessee, the addition made by the AO on this ground is deleted. Thus, we note that identical issue has been decided by the ITAT in assessee’s own case in favour of the assessee. There are four orders of ITAT in this regard, one for AY 2009-10 vide order dated 23.10.2018, one dated 29.01.2021 for AY 2010-11 and another dated 15.01.2021 for AYs 2011-12 & 2012-
13. Ld. counsel of the assessee in this regard has also referred to certain other decisions on similar issue as under :-
(i) Hon’ble Madras High Court judgment in CIT vs. Spencers and Co. Ltd. [2014] 49 taxmann.com 318;
(ii) ITAT, Kolkata Bench order in DCIT vs. M/s. Deloitte Haskins & Sells in & 588/Kol/2016 for AYs 2010-11 & 2011-12;
(iii) ITAT, Kolkata Bench order in DCIT vs. M/s. Deloitte Haskins & Sells in for AY 2012-13 dated 28.09.2018;
(v) ITAT, Mumbai in ACIT vs. Arthur Anderson & Co. [2006] 5 SOT 393; and (vi) ITAT, Ahmedabad Bench in DCIT vs. M/s. Deloitte Haskins & Sells in for AY 2013-14 & ITA No.1984/Ahd/2017dated 01.10.2019;
Ld. DR for the Revenue could not dispute the proposition. It is also not the case that Hon’ble jurisdictional High Court has reversed the order of ITAT. Since the ITAT in assessee’s own case consistently decided the issue in favour of the assessee and no case has been made out that facts are different, respectfully following the coordinate Bench decisions, we uphold the order of ld. CIT (A) on this issue.
Apropos disallowance u/s 40(1)(ia) for the payment made to Deloitte Touche Tohmatsu India Pvt. Ltd. : On this issue, the AO has disallowed u/s 40(a)(ia) for payment of Rs.4,39,28,027/- made to Deloitte Touche Tohmatsu India Pvt. Ltd. paid under different heads for the reason that these were reimbursement of expenses, hence no TDS was required. Pursuant to AO’s disallowance, ld. CIT (A) outlined the facts on this issue as under :-
“5.4.1 The appellant is part of Deloitte Group and their common services in India handled by M/s DTTIPL. This company is doing other activities apart from giving common services like Accounts & Finance, Administration, IT, HR, documentation ./2019 ITA No.4617/Del./2019 ITA No.7236/Del./2018 and risk& regulatory to its group companies at cost with no mark up. The cost relating to these services incurred by DTTIPL is shared amongst the members on the basis of members earning and computer related cost based on head count. It is observed that these consultancy firms are structured thin capital due to frequent incoming/outgoing members and most of the equipments/ buildings/cars etc. are on "hire basis" and system of accounting is also "cash system" which is probably done to avoid valuation & distribution issues arising from these assets when the partners come in/out of organization. As per the confirmation of DTTIPL filed it is observed that • Theses cost are charged on actual basis without any mark up by DTTIPL.
• The methodology of accounting by DTTIPL is that all the costs reimbursed by the group companies is deducted from the total cost and net expenses for its own activities are claimed in the Profit & loss.
• The methodology of allocating these expenses has been explained.
• DTTIPL is deducting TDS on all the payments made by it on all contractual payments
• These reimbursements have been considered in their accounts not as receipts of income but deduction from the expenses made by it for its own use as well as these group companies
5.4.2 In order to address the issue whether tax is required to be deducted at source, in respect of reimbursement of expenses, it will be necessary to keep in mind the following two aspects, viz:
(i) Tax is deductible at source under Chapter XVII-B of the Act, only in respect of payment of income or other sum made by the person responsible for such payment, viz. tax-deductor to other person being the tax-deductee, and (ii) Reimbursement of expenses does not partake the nature of income in the hands of the payee of such expenses.”
After elaboration on the issues, ld. CIT (A) was of the opinion that tax is deductible at source in respect of payment of income or other sum comprising an element of income and that reimbursement of expenses cannot partake the nature of income in the hands of the payee of such expenses. Ld. CIT (A) made further following observations in deleting the disallowance :-
“During the remand report proceedings the AO has not commented on the submissions made by the appellant like detailed confirmation of DTTIPL and form 26A submitted to AO, on merit. The following observations are made on merit:
• The facts of the case clearly point out that there is reimbursement of expenses by the appellant to DTTIPL as per actual cost allocated on the scientific basis. There is no element of profit in the hands of DTTIPL as there is no mark up on actual cost to DTTIPL.
• These reimbursement of expenses to DTTIPL by various group entities including the appellant have been accounted as deduction from gross expenses by DTTIPL and not receipts. The DTTIPL had paid taxes on all the income received by it. The DTTIPL has deducted TDS on payments made by it on gross basis, wherever it is required under the law.
• These expenses were duly allowed to the appellant without deduction of TDS in preceding and succeeding financial years.
./2019 ITA No.4617/Del./2019 ITA No.7236/Del./2018 • The judgement of ITAT Delhi in the case of KPMG advisory services P Ltd and Delhi High Court in the case of Expeditors international are judgments on the identical facts as that of the appellant.
• Without prejudice the case of the appellant is also covered by second proviso to section 40(a)(ia).
Thus it can be concluded that the Tax is deductible on the income of the recipient and not in cases where there is no income in the hands of the recipient. The present payments are in the nature of reimbursement of expenses by appellant to DTTIPL on cost basis without any element of income in the hands of recipient DTTIPL. Therefore, the TDS was not deductible on such reimbursement of expenses on cost sharing on scientific basis. Accordingly, the provisions of section 40(a)(ia) cannot be invoked on such payments. Therefore addition made by the AO u/s 40(a)(ia) of Rs.4,39,28,027 is hereby deleted and this ground of appeal is allowed.”
Against this order, Revenue is in appeal before us. We have heard both the parties and perused the records.
Ld. counsel of the assessee reiterated the point made out by the ld. CIT (A) that payment are in the nature of sharing of common cost without any profit element, hence they are not subject to TDS. In this regard, reference was made to the decision of ITAT, Mumbai Bench in case of KPMG Advisory Services (P.) ltd. 168 ITD 34 and Hon’ble jurisdictional High Court decision In CIT vs. Expeditors International (India) P. Ltd. [2012] 24 taxmann.com 76. Ld. counsel of the assessee apart from the above further supported the deletion of the disallowance on the ground that requirement of the second proviso to section 40(a)(ia) mad to Deloitte Touche Tohmatsu India Pvt. Ltd. For this purpose, reliance has been placed on following case laws :-
(i) Hon’ble Delhi High Court decision in case of CIT vs. Ansal Land Mark Townshop (P) Ltd. 377 ITR 635;
(ii) Hon’ble Delhi High Court decision in case of CIT vs. Bhanot Construction & Housing Ltd. [2019] 102 taxmann.com 234;
(iii) Hon’ble Punjab & Haryana High Court in case of Pr.CIT vs. M/s. Mobisoft Telesolutions Pvt. Ltd. in of 2017; and (iv) Hon’ble Bombay High Court in case of Pr. CIT vs. Perfect Circle India Pvt. Ltd. in of 2016.
Upon careful consideration, we find that ld. CIT (A) has passed a reasoned order. His finding of fact that these are reimbursement of expenses which have not been disputed by the Revenue. Hence, in light of case laws referred above, we do not find any need to interfere in the order of ld. CIT (A). Accordingly, we uphold the same.
Apropos disallowance of remuneration paid to partners : On this issue, AO noted that from the perusal of profit & loss account, an amount of Rs.5,78,00,000/- is claimed as partner’s remuneration. The assessee was asked to submit partnership deed. From the perusal of partnership deed, AO noted that the amount of Rs.5,28,00,000/- is mentioned instead of Rs.5,78,00,000/- as claimed. On being asked from the assessee, the Rs.5,78,00,000/- remuneration from stamp paper dated 01.08.2012, hence AO held that remuneration so paid for 01.04.2012 and 01.08.2012 is in contradiction to section 40(b) of the Act. AO was not satisfied with the assessee’s reply and proceeded to make the disallowance of Rs.16,66,667/-.
Upon assessee’s appeal, ld. CIT (A) was of the opinion that AO has not been able to fully understand assessee’s agreement in this regard.
He deleted the same by observing as under :-
“The appellant has a structure of partners of firm working together on the salary signed by all the partners. If any partner joins during the year, a new partnership deed mentioning remuneration of each partner is prepared and signed by each partner. This deed mentions the annual amount to be paid to the partner. The controversy is that the AO considers the amount payable annually in the deed whereas a partner coming in during the year will not work for full year and, accordingly, his remuneration should be proportionately allowed for the months worked during the year. The appellant explained that although the annexure to the partnership deed mentions annual salary, it actually means that this amount will be payable for the financial year irrespective of the period of working. He filed the confirmation of the partner Mr. Mahesh Pansukhlal Sarda to show that this amount has been paid to him inspite of his introduction on 01.08.2012 in the firm. Similar issue arose in A.Y. 2014-15 also and the CIT(A) has deleted this addition, the operative part is reproduced as under:
"4.3.3 The contention of the Assessing officer and the submission of the appellant has been considered. During the course of appellant proceedings, the appellant has also filed the copy of partnership deed where in Schedule ./2019 ITA No.4617/Del./2019 ITA No.7236/Del./2018 B the details of remuneration payable to partners as per clause 6.1 of the partnership deed has been mentioned which shows the annual remuneration payable to Sh. Tarun Arora and Sh. Sameer Rohatgi of Rs.10,00,000/- and Rs.7,00,000/- respectively. Further, the appellant has also filed the copy of confirmation from these partners in this regard. In this light, as the annual remuneration has been paid as per the terms and conditions of the partnership deed, I do not find any justification in confirming this addition and the addition of Rs.5,44,109/- made by the Assessing Officer is deleted."
The facts and circumstances are same as in A.Y. 2014-15. The incoming partner has confirmed to have received Rs.50 lakhs as per the partnership deed. Thus it makes the stand of the appellant clear that the amounts although referred as annual remuneration are actually the amounts to be paid even if the partner joins during the year. In fact it means the remuneration for the remaining period of working in that F.Y. I do not find any reason to disagree with the above observation of CIT(A) for A.Y. 2014-15. therefore, the addition made by the AO of Rs.16,66,667/- is hereby deleted and this ground of appeal is allowed.”
Against this order, Revenue is in appeal before us. We have heard both the parties and perused the records.
Ld. counsel of the assessee placed reliance on the order of ld. CIT (A). He submitted that remuneration paid to partners in terms of the partnership deed; that the aggregate of remuneration paid within the limit provided in section 40(b) of the Act. He further submitted that the concerned partner has confirmed the receipt of remuneration and payment submissions made.
15. We find that we are in agreement with ld. CIT(A). He has factually examined the issue and given a finding of fact. This finding could not be rebutted by the Revenue. Hence, we uphold the order of ld. CIT (A).
ASSESSEE’S APPEAL (AY 2013-14)
Grounds of appeal raised by the assessee on the issues read as under :-
“1. Disallowance of payment to Retired Partners Rs.1,75,81,653/-
2. Disallowance of expenses not paid in the relevant Financial Year Rs.11,34,979/-;
Foreign Tax Credit.”
Apropos disallowance of payment to retired partners : On the issue of payment to retired partners, the assessee’s plea was that these payments were on account of diversion of overriding title of partnership deed and, therefore, not liable to tax at source. Accordingly, section 40(1)(ia) is not attracted in these cases. AO was not satisfied with the submission and made the disallowance of Rs.1,75,81,653/-. Ld. CIT (A) noted that on similar ground in AY 2015-16, CIT (A) confirmed the order and found that facts remained the same. He did not find any reason to deviate and accordingly he held that the disallowance of Rs.1,75,81,653/- made by the AO on this issue is upheld.
Against this order, assessee is in appeal before us. We have heard both the parties and perused the records.
Ld. counsel of the assessee submitted that the issue is covered in favour of the assessee by the ITAT decision in assessee’s own case and also by catena of other decisions as under :-
(i) Delhi ITAT order dated IS January 2021 in assessee own case for the AY 2011-12. (Internal page 28 and para 7.2)
(ii) Ahmedabad ITAT order dated OLIO. 2019 in the case of DCIT vs Deloitte Haskins & Sells, Ahmedabad [ITA No.1983/AHD/2017 for the AY 2013-14 and for the AY 2014-15. (Internal Pagel6 para 5.4)
(iii) Chennai ITAT order dated 25 November 2016 in the case of Deloitte Haskins & Sells, Chennai vs ACIT and vice versa and ITA No.2079/Madras/2016 for the AY 2011-12 (Internal page 14 to IS, Para 14 to 16)
(iv) Hon’ble Supreme Court judgement in case of Dalmia Cement Ltd. v CIT 237 ITR 617(SC)
(v) Hon’ble Supreme Court judgement in CIT v. Excel Industries Ltd. (358 ITR 295) (SC)
(vi) Hon’ble Bombay High Court judgement in the case of M/s C.C. Chokshi & Co in and 193 of 2008 and A.F. Ferguson & Co. in ITA no.87 of 2011
(vii) Hon’ble Bombay High Court judgement in the case of DCIT versus Wadia Ghandy & Company vide judgment dated 7 August 2019.
(viii) Hon’ble Calcutta High Court judgement in CIT v. G. Basu & Co. (182 ITR 472) (Cal)
(ix) Hon’ble Bombay High Court judgement in CIT v. V. G. Bhuta (203 ITR 249) (Bom)
(x) Hon’ble Madras High Court judgement in CIT v. V.N.V. Devara Julu Chetty & Co. (18 ITR 357) (Mad)
(xi) Hon’ble Bombay High Court judgement in CIT v. Mulla & Mulla & Craigie Blunt & Caroe (190 ITR 198) (Bom)
(xii) Hon’ble Bombay High Court judgement in CIT v. Nariman B. Bharucha & Sons (130 ITR 863) (Bom)
Upon careful consideration, we note that ITAT in assessee’s own case vide order dated 15.01.2021 in for AY 2011- 12 and ITA No.3716/Del/2017 for AY 2012-13 has decided this issue in favour of the assessee as under :-
“7.2 As far as the issue of disallowance of payment to Retired partners in Assessment Year 2011-12 is concerned, it is seen that this issue is also settled in favour of the assessee by numerous judgments of the Hon’ble High Courts as well as the Co-ordinate Benches of the Tribunal. We find that an identical issue had come up before the ITAT Chennai bench in the case of a related concern of the assessee in assessment year 2011 - 12 and the ITAT Chennai bench in vide order dated 25/11/2018, after relying on an order of ITAT Mumbai Bench in the case of CC Chokshi & Co. for assessment years 2000-01 and 2001-02 had held the issue in favour of the assessee. The Hon’ble High Court of Bombay in ./2019 ITA No.4617/Del./2019 ITA No.7236/Del./2018 the case of DCIT versus Wadia Ghandy & Company, vide judgment dated 12/02/2019, also upheld an identical order of ITAT Mumbai and noted that payment to the partner would amount to diversion of income at source by overriding title. The court went on to observe that it was not necessary to refer to long line of decisions where a similar view in similar circumstances had been taken. The undisputed facts are that the partnership firm envisaged payment to a outgoing partner on the basis that the partner would have rendered service during his tenure as a partner of the firm but could not enjoy the fruits thereof on account of the fact that the work having remained incomplete, the concerned client had not been billed for the work already done. The Hon’ble Bombay High Court held that in similar circumstances, the courts have held that payment to the partner would amount to diversion of income at source by overriding title. The Ld. senior departmental representative could not point out any judgment to the contrary on this issue as well and, therefore, in view of the ratio of the decisions as aforesaid and as relied upon by the Ld. Authorized Representative, on identical facts, respectfully following the above cited judicial precedents, we allow ground No.3 of the assessee’s appeal in Assessment Year 2011-12 and direct the Assessing Officer to delete the disallowance.”
Since facts are identical following coordinate Bench decision, we set aside the orders of the authorities below and decide the issue in favour of the assessee.
Apropos disallowance of expenses not paid in the relevant financial year:- The authorities below have disallowed the expenses of Rs.11,34,979/- by giving following observation:-