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Income Tax Appellate Tribunal, JAIPUR BENCHES,”A” JAIPUR
Before: SHRI VIJAY PAL RAO, JM & SHRI VIKRAM SINGH YADAV, AM vk;dj vihy la-@ITA. No. 732/JP/2017
आयकर अपीलीय अधिकरण] जयपुर न्यायपीठ] जयपुर IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHES,”A” JAIPUR Jh fot; iky jko] U;kf;d lnL; ,oa Jh foØe flag ;kno] ys[kk lnL; ds le{k BEFORE: SHRI VIJAY PAL RAO, JM & SHRI VIKRAM SINGH YADAV, AM vk;dj vihy la-@ITA. No. 732/JP/2017 fu/kZkj.k o"kZ@Assessment Years : 2012-13 cuke Oriental Earthmovers Pvt. Ltd. The ACIT, Vs. 40-41, Mahalaxmi Nagar, Ajmer Road, Circle-2, Opp. Heerapura Power House, Jaipur. Jaipur. LFkk;h ys[kk la-@thvkbZvkj la-@PAN/GIR No.: AAACO 4491 N vihykFkhZ@Appellant izR;FkhZ@Respondent fu/kZkfjrh dh vksj ls@ Assessee by : Shri D. Kumar (Adv.) jktLo dh vksj ls@ Revenue by : Shri K.C. Gupta (JCIT) lquokbZ dh rkjh[k@ Date of Hearing : 16/04/2019 mn?kks"k.kk dh rkjh[k@Date of Pronouncement : 24/04/2019 vkns'k@ ORDER PER: VIKRAM SINGH YADAV, A.M. This is an appeal filed by the assessee against the order of ld. CIT(A)-I, Jaipur dated 21.07.2017 for the Assessment Year 2012-13.
In ground no. 1, the assessee has challenged the adhoc disallowance of 10% of various expenses sustained by the ld. CIT(A). During the course of hearing, the ld. AR has submitted that routine operational expenses were incurred which are required to run business successfully & normally. It was submitted that the AO on an adhoc basis has disallowed 20% of sales promotion, conveyance expenses, miscellaneous expenses and repair & maintenance expenses. Further, the ld. CIT(A) has given a finding that the AO made disallowance without any evidence on record but has maintained the disallowance to the extent of 10% of the expenses. It was submitted that the ld. CIT(A) has not examined that bills were available on record for all the expenses except for petty amounts which are required to be paid in cash for which self made vouchers were available. It was submitted that sales promotion expenses includes advertisement in newspapers, expenses on demo of machinery, conference expenses and other sales promotion expenses incurred for its customers by the company. Regarding conveyance expenses it was submitted that it includes conveyance paid to staff, local delivery van expenses and outstation travel as well as reimbursement of petrol and diesel expenses. The miscellaneous expenses includes expenses for purchase of stamp papers, newspapers & puja expenses items. The repair maintenances expenses include repair of building, warranty repair, repair of vehicle and machinery repair. It was submitted that all the expenses are supported by vouchers along with complete details with purpose which is available for verification. It was submitted that all the bills were produced before the Assessing Officer which were test checked and he not specifically point out the defects which have been found by him. It was accordingly submitted that the addition as confirmed by the ld. CIT(A) should be deleted.
Per contra, the ld. DR has relied upon the orders of the lower authorities.
We have heard the rival contentions and perused the material available on record. We find that the expenses have been disallowed purely on an adhoc basis and even the ld CIT(A) has returned a finding that the AO has no material to make the subject disallowance. In absence of any finding that the expenses are bogus or not incurred for the purposes of the assessee’s business, the adhoc disallowance so made is directed to be deleted. In the result, the ground of appeal is allowed.
5. In ground no. 2, the assessee has challenged the addition of Rs. 69,270/- made by the AO U/s 41(1) of the Act. During the course of hearing, the ld. AR has submitted that the assessee has engaged M/s Shekawati Courier & Cargo and instruction were given that no delivery of goods to customers should be made without receipt of cheque and in case, consignee does not give cheque for goods, the goods are required to be delivered to their Bikaner office. It was submitted that the transporter has delivered the goods to the customer namely Mr. Ram Kishan choudhary without obtaining cheque/payment. It was submitted that the assessee has not made the payment of freight to the transporter and has tried to recover the amount from consignee but in spite of its best efforts, the amount could not be recovered by company from the consignee. It was submitted that subsequently, it came to its knowledge that the consignee, Shri Ram Kishan Choudhary has expired and therefore, the company has no option but to adjust the freight payable against dues of its consignee. It was submitted that the lower authority has not properly appreciated these facts and have merely held that since the closing balance as on 31.03.2010 continue in the subsequent years when the amount has been squared up and accordingly the same was brought to tax U/s 41(1) of the Act. It was submitted that the Assessing Officer has not complied with the basic requirement of proving the factum of obtaining of a benefit by the assessee by way of remission or cessation of a liability and the burden to prove that the liability ceased to exist is on the Revenue. Unless and until these two conditions were fulfilled by the AO i.e. benefit in real terms by way of remission or cessation of liability and the evidence of cessation of liability, addition U/s 41(1) of the Act cannot be made. In support, reliance was placed on the decision of Hon’ble Supreme Court in case of CIT vs. Sugauli Sugar Works (P) Ltd. 236 ITR 518 (SC). Further reliance was placed on the decision of Hon’ble Delhi High Court in case or CIT vs. Shri Vardhman Overseas Ltd. 343 ITR 408. Without prejudice, it was that the information that the consignee has expired on 1.4.2014 relevant to assessment year 2015-16 when the account was squared up, the additions, if at all can be made in assessment year 2015-16 and not in the impugned assessment year.
6. Per contra, the ld. DR has relied upon the finding of the lower authorities and in particular, our reference was drawn to the findings of the ld. CIT(A) which are reproduced as under:- “(iii) I have duly considered the submissions of the appellant, assessment order and the material placed on record. It appears that during the appellate proceedings, the appellant has changed its stand as made before the AO. Further, on a perusal of the ledger account of Shekhawati Courier & Cargo as appearing in the books of accounts of the appellant, it was observed that there was opening credit of Rs. 26,085/- as on 01.04.2010 and closing credit balance of Rs. 69,270/- as on 31.03.2011 which remained
the same till 01.04.2014 and on the same date, through a journal entry an amount of Rs. 69,270 was debited in the said account and the account was squared up. In the ledger account of Ramkishan Coudhary, there was a debit balance of Rs. 1,57,721/- on 31.03.2011 which remained the same till 01.04.2014 and on the same date through journal entry, a sum of Rs. 69,270/- was credited. (iv) In view of the above discussion, it is clear that the appellant was having transactions with M/s Shekhawati Courier & Cargo prior to 01.04.2010 whereas it has been claimed that the appellant appointed it only during the year 2010-11. Further, before the AO it was stated that the outstanding amount was paid in the subsequent years which is not correct as is evident from the above discussion. Therefore, in view of the facts and circumstances of the case, it is held that the AO was justified in making addition of Rs. 69,270/- u/s 41(1) of the Act.
We have considered the rival contentions and perused the material available on record. The factual matrix of the case as apparent from the entries in the books of accounts as noted by the ld CIT(A) which remain undisputed before us is that as per the ledger account of Shekhawati Courier & Cargo as appearing in the books of accounts of the assessee, there was opening credit of Rs. 26,085/- as on 01.04.2010 and closing credit balance of Rs. 69,270/- as on 31.03.2011 which remained the same till 01.04.2014 and on the same date, through a journal entry, an amount of Rs. 69,270 was debited in the said account and the account was squared up. In the ledger account of Ramkishan Coudhary, there was a debit balance of Rs. 1,57,721/- on 31.03.2011 which remained the same till 01.04.2014 and on the same date through journal entry, a sum of Rs. 69,270/- was credited. Therefore, as on last day of the financial year i.e, 31.03.2012 relevant to impugned assessment year, the amount of Rs 69,270 stood credited in the account of Shekhawati Courier & Cargo. The act of square up of the said account with the trade debtor happened in subsequent financial year 2014-15 relevant to assessment year 2015-16. In absence of any finding that as on the close of the financial year, there is any benefit by way of remission or cessation of its freight liability, the amount cannot be brought to tax u/s 41(1) in the year under consideration. The Revenue is however free to take action as per law in the year the account was squared up. In the result, the ground of appeal is allowed.
8. In ground no. 3, the assessee has challenged the sustenance of disallowance of interest paid on service tax U/s 40(a)(ii) of the Act. During the course of hearing, the ld. AR has submitted that the assessee has debited interest paid on late deposit of service tax in the profit and loss account and the same is not penal in nature but compensatory in nature and therefore is an allowable expenditure. It was submitted that the Assessing Officer has wrongly invoked the provisions of Section 40(a)(ii) of the Act as the said section applies to any sum paid on account of tax on profits or gains of business or profession and the service tax is recovered on the value of the services. It was further submitted that the issue is squarely covered by the decision of the Tribunal in case of Remfry & Sagar Consultants Pvt. Ltd. vs. ACIT 34 CCH 0131. Further, Reliance was placed on the decision of Hon’ble Gujarat High Court in case of CIT vs. Kaypee Mechanical India P Ltd. 223 Taxman 346 and decision of Hon’ble Supreme Court in case of Lachmandas Mathuradas vs. CIT 254 ITR 799.
It was further submitted that the ld. CIT(A) has wrongly relied upon the Coordinate Bench decision in case of DNV GL AS (ITA No. 4687/Mum/2016 dated 31.05.2017) as the said decision has been rendered in the context of interest on delayed payment of TDS. It was further submitted that the AO has wrongly observed that borrowed funds have been used for payment of service tax merely for the reason that such interest has been clubbed under the head “Interest paid to others”. It was accordingly submitted that the interest paid on late deposit of service tax being compensatory in nature is duly allowable and therefore, the addition so made by the lower authorities should be deleted.
Per contra, the ld. DR has relied upon the decision of lower authorities and in support, reliance was placed on the Coordinate Bench decision in case of DNV GL AS (supra).
We have considered the rival contentions and perused the material available on record. From perusal of records, we find that the asssessee has paid interest on service tax amounting to Rs 77,565 on 23.03.2012 and the said amount has been debited in the profit/loss account and has been claimed as an allowable expenditure. There is therefore no dispute that the assessee has actually discharged its liability towards interest on late deposit of service tax. The Assessing officer has invoked the provisions of section 40(a)(ii) and has disallowed the said claim of the assessee. The provisions of section 40(a)(ii) reads as under:
59(ii) any sum paid on account of any rate or tax levied60 on the profits or gains of any business or profession60 or assessed at a proportion of, or otherwise on the basis of, any such profits or gains. 61[Explanation 1.—For the removal of doubts, it is hereby declared that for the purposes of this sub-clause, any sum paid on account of any rate or tax levied includes and shall be deemed always to have included any sum eligible for relief of tax under section 90 or, as the case may be, deduction from the Indian income-tax payable under section 91.] 62[Explanation 2.—For the removal of doubts, it is hereby declared that for the purposes of this sub-clause, any sum paid on account of any rate or tax levied includes any sum eligible for relief of tax under section 90A;] On a plain reading of the above provisions, it provides that any sum paid on account of any rate or tax levied on the profits or gains of any business or profession or assessed at a proportion of, or otherwise on the basis of, any such profits or gains. What it therefore provides is the rate or tax levied on the profits/gains of any business or profession. The interest on service tax is not a tax levied on the profits/gains of any business or profession. Thus, the very foundation of disallowance by invoking the provisions of section 40(a)(ii) is not satisfied in the instant case. Further, the decision relied upon by the ld CIT(A) is distinguishable as the said decision deals with case of interest on late deposit of TDS which was disallowed by the AO u/s 37(1) of the Act. Even where the provisions of section 37(1) are considered as implied invoked by the ld CIT(A) in the instant case, it is a settled position that the interest on account of delayed deposit of service tax is 9 Oriental Earthmovers Pvt. Ltd. vs. ACIT compensatory in nature and not in the nature of penalty and was, therefore, duly allowable under section 37(1) of the Act. The decision of the Coordinate Bench in case of Remfry & Sagar Consultants (supra) which has laid down a similar proposition thus supports the case of the assessee. In the result, the ground of appeal is allowed. In the result, the appeal filed by the assessee is allowed.
Order pronounced in the open Court on 24/04/2019. Sd/- Sd/- ¼fot; iky jko½ ¼foØe flag ;kno½ (Vijay Pal Rao) (Vikram Singh Yadav) U;kf;d lnL;@Judicial Member ys[kk lnL;@Accountant Member Tk;iqj@Jaipur fnukad@Dated:- 24/04/2019. *Santosh आदेश की प्रतिलिपि अग्रेf’ात@ब्वचल वf जीम वतकमत वितूंतकमक जवरू 1. vihykFkhZ@The Appellant- Oriental Earthmovers Pvt. Ltd., Jaipur. 2. izR;FkhZ@ The Respondent- ACIT, Circle-2, Jaipur. 3. vk;dj vk;qDr@ CIT 4. vk;dj vk;qDr@ CIT(A) 5. विभागीय प्रतिनिधि] आयकर अपीलीय अधिकरण] जयपुर@क्त्ए प्ज्Aज्ए Jंपचनत. 6. xkMZ QkbZy@ Guard File { vkns'kkuqlkj@ By order,
सहायक पंजीकार@Aेेज. त्महपेजतंत