Loading judgment…
No AI summary yet for this case.
Income Tax Appellate Tribunal, “SMC” BENCH, AHMEDABAD
Before: SHRI RAJPAL YADAV & SHRI WASEEM AHMED
PER WASEEM AHMED, ACCOUNTANT MEMBER:
The captioned appeal has been filed at the instance of the Assessee against the appellate order of the learned Commissioner of Income-Tax (Appeals)-5, Ahmedabad [“CIT(A)” in short] relevant to Assessment Year 2013-14. 2. Assessee has raised the following grounds of appeal:- “1. The ld CIT(A)-5, Ahmedabad erred in confirming the action of assessing Officer in disallowing bank guarantee expenses of Rs.3,94,626/- u/s 37(1) of the act by treating the same as capita in nature.”
The only issue raised by the assessee is that ld CIT(A) erred in confirming the disallowance of Rs. 3,94,626/- u/s 37(1) of the Act by treating the bank guarantee commission expenses as capital in nature.
Briefly stated facts are that the assessee in the present case is an AOP and engaged in the business of construction contracts. The assessee during the year incurred an expense of Rs. 3,94,626/- under the head bank guarantee expenses. As per the assessee, the bank guarantee expenses represent the commission paid to the bank for availing the bank guarantee for the execution of the project undertaken by it. Accordingly, the assessee claimed that such expenditure was incurred exclusively for the purpose of the business.
1 The assessee also claimed that it has no fixed assets. Therefore there is no question of treating the bank guarantee commission as capital in nature.
2 The assessee also claimed that there was no fixed asset which was coming into existences out of such bank guarantee commission expenses.
However, the AO during the assessment proceedings observed that the bank guarantee was to be given by the assessee before the commencement of the project. Therefore the bank guarantee commission was incurred prior to the commencement of the relevant project. Accordingly, the AO was of the view that the bank guarantee commission expenses needs to be treated as capital in nature. Hence, the AO disallowed the same and added to the total income of the assessee.
Aggrieved, assessee preferred an appeal to ld. CIT(A). The assessee before the ld. CIT(A) submitted that it has started its business activities in the year 2008-09. The bank guarantee was availed from the bank to execute the work awarded by Airport Authority of India in its normal course of business.
Therefore, the allegation of the AO that the expenditure was incurred prior to the commencement of the business is incorrect.
1 The assessee also submitted that the bank guarantee was furnished to the Airport Authority of India for satisfactory completion of the work assigned to it. As such, the bank guarantee availed by it represents the performance guarantee which was obtained in the course of the business.
2 There was no capital asset or right accrued to the assessee out of such bank guarantee commission.
However, the ld. CIT(A) disregarded the contention of the assessee and confirmed the order of AO by observing as under:
“4. 3. I have considered the facts of the case and submission made by the appellant. It is worth here to mention that in appellant's own case in appeal for A.Y. 2010-11, the undersigned vide order in appeal No. CIT(A)- 5/ITO.Wd.5(2)(3)/216/2015-16 dtd. 20.07.2016 has confirmed the disallowance made by the AO in respect of Bank guarantee expenses for the reasons discussed in para -4.3 to 4.15 of the appellate order which is reproduced as under:- "4. 3. During the assessment proceedings the AO has noticed that the assessee has debited an amount of Rs.12,12,525/- under the head bank guarantee expenses. The assessee has paid the same to the bank for procuring bank guarantee in ' favour of Air Port Authority of India as per the terms of tender contract. In the assessment order, the AO has held that performance deposit confers right on the assessee to carry out work and commission borne for providing such deposit is a capital expenditure. Accordingly, the AO has disallowed the same and added to the income of the assessee.
During the course of appellate proceedings, the appellant has contended that the said expenditure was incurred in order to execute the work awarded to it in normal course of such work and it is not in the nature of expenditure incurred prior to operations of the business or prior
to setting up of the business. It is further contended that the business of developing and executing infrastructure project of the Air Port was set up and commenced in preceding year and during the year further expenditure was incurred which was for the purpose of continuing the guarantee which shows that it was not an expenditure for setting up of business. The appellant has also contended that it was one of the conditions of the agreement that security deposit in performance guarantee work required and the guarantee was given by obtaining the same from a bank for which the bank charged commission. Thus, the expenditure was intimately and directly concerned with carrying on of business year to year until the work was satisfactorily completed. The appellant has relied upon following decisions/judgments as reproduced in the preceding paras of this order.
The facts of the case and the submissions are considered. Here the question to be decided is that the guarantee commission paid by the assessee to the bank for performance deposit is a revenue expenditure or capital expenditure. The assessee has received contract from Air Port Authority of India for developing and executing infrastructure project of the Air Port. One of the condition of the contract is to provide performance guarantee to the Air Port Authority of India and without providing the same the assessee cannot obtain the right to execute the contract. The assessee has given bank guarantee for the performance deposits to the Air Port Authority of India. By giving the bank guarantee the assessee acquire the right to execute the contract. Any expenditure incurred for (ding the bank guarantee is of capital nature and it is irrelevant whether it is fore commencement of contract or after that. The judgments relied upon by the appellant are related to guarantee commission paid to bank for purchase of machinery and encashment of performance guarantee. Facts and issues of those cases are entirely different from the facts of the appellant. Considering the above, the bank commission paid on performance guarantee is held to be a capital in nature and the action of the AO is found to be justified and the addition made by the AO is confirmed. Thus the ground of appeal is dismissed."
Since the disallowance made by the AO was confirmed in appellate proceedings for A.Y. 2010-11 and the issue identically involved in the appeal under consideration, the disallowance made in respect of bank guarantee expenses is confirmed. Thus the ground of appeal is dismissed.”
Being aggrieved by the order of Ld CIT(A) assessee is in appeal before us:
There was no authorized representative appeared from the side of the assessee at the time of hearing. However, the assessee filed its written submission which is reproduced as under: “The only ground of appeal is regarding disallowance of bank guarantee expenses of Rs. 3,94,626/- u/s.37(1) of the Act by treating the same as capital in nature.
At the outset, it is submitted that the learned Commissioner (Appeals) have confirmed above mentioned disallowance on the basis of appellate order of A.Y. 2010-11. However, since the appellant has not received said appellate order till date of A.Y. 2010-11, no further action is taken by the appellant in this regard.
Hence, these submissions may kindly be considered;
With respect to ground of appeal, the contentions of the appellant are as follows: (i) The said expenditure was incurred in order to execute and secure performance of the work awarded to it in the normal course of such work and as per tender terms it is not in the nature of expenditure incurred prior to operations of the business or prior to setting up of the business. (ii) The business of developing and executing infrastructure project of the Airport was set up and commenced in the year 2008-09. During the year, further expenditure was incurred which was for the purpose of continuing the guarantee, which shows that it was not an expenditure for setting up a business. (iii) Evidence in support of the justification of the said expenditure was submitted during both assessment and appellate proceedings. It was one of the conditions of the agreement that security deposit in performance guarantee were required (extract of tender document is enclosed herewith - Page 1). The guarantee was given by obtaining the same from a bank, for which the bank charged commission, which is the impugned expenditure. By furnishing the guarantee instead of depositing 5% of tender cost, the appellant was required under the terms of the agreement to secure due performance of its obligations for developing the Airport. Thus, the expenditure was intimately and directly concerned with carrying on of business from year to year, until the work was satisfactorily completed. Non-performance of the obligations would have resulted into forfeiture of the guarantee amount. (iv) Further, the expenditure did not give rise to any asset or a right but it was an annual expenditure by way of guarantee commission expense paid to the bank for the particular financial year.
(v) In support of the claim as and by way of revenue expenditure, the appellant places reliance upon following decisions: Taxman 0025 (Gujarat) wherein it was held that bank guarantee given for performance of contract was allowable as business expenditure u/s.37(1) of the Act. Hence, in view of above, it is submitted that the disallowance of bank guarantee expenses of Rs.3,94,626/- treated by ITO as capital in nature may kindly be deleted.”
On the other hand ld. DR relied on the order of authorities below:
We have heard the rival contentions and perused the materials available on record. In the instant case, the assessee has incurred commission expenses for availing the bank guarantee favoring to Airport Authority of India. The bank guarantee was taken by the assessee for satisfactory completion of the work undertaken by it. Indeed, the bank guarantee was taken prior to the commencement of the project undertaken by it from the Airport Authority of India. Therefore, the AO treated the expenses incurred on account of such bank guarantee as capital in nature and therefore, the same was disallowed u/s 37(1) of the Act. The view taken by the AO was subsequently confirmed by the ld CIT(A).
From the preceding discussion, we note certain undisputed facts as detailed under: i. The assessee started its business activities in the year 2008-09 which evidences that the business was setup and commenced in the earlier years.
ii. The assessee claimed before the lower authorities that it has no fixed assets in its business. The argument of the assessee was not disputed by any of the lower authority. iii. The amount of commission expenses was treated as capital in nature but no deduction was allowed either as preliminary expenses or depreciation on account of such expenses. iv. None of the authority below has doubted the genuineness of the expenses. v. There is no allegation from the authority below that the expenditure was not incurred in connection with the business of the assessee. After having regard on the aforesaid facts we note that the authorities below erred in not allowing the deduction of the commission expenses either as revenue or in the form of depreciation. The expenditure is treated as capital in nature if there arises some fixed assets out of such expenditure but it is not so in the case before us.
1 Once, the assessee has incurred any expense in connection with its business then he has liable for deduction either in the form of revenue expenses, preliminary expenses or depreciation. As we note that no benefit has arisen to the assessee out of such expenses which is enduring in nature.
Therefore we are inclined not to treat such expenses as capital in nature.
2 We also note that the bank guarantee was furnished by the assessee for satisfactory performance of the work assigned to it. Therefore, in our considered view, it is directly linked with the trading/revenue activities of the assessee. Therefore we are of the view that such expenditure should be treated as revenue in nature. In holding so, we find support and guidance from the judgment of Hon’ble Gujarat High Court in the case of Neo structo construction Ltd. reported in 218 taxman 24, whereas it was held as under:
“The contractee 'O' encashed the bank guarantee, which was furnished by the assessee as performance guarantee, due to the non-fulfilment of the contract by the assessee. It can be said to be compensatory in nature and not penal in nature. The Tribunal has rightly held that the assessee would be entitled to the deduction of the same as business expenditure under section 37(1). Therefore, the assessee will be entitled to the deduction of the said amount as business expenditure under section 37(1), as the same is compensatory in nature”
From the above judgment, we note that if performance guarantee has forfeited by the concern party then the same is allowable as deduction to the assessee. Therefore, we can draw the principles from the aforesaid judgment which can be applied to the bank guarantee commission expenses incurred by the assessee for providing performance guarantee to the party. Thus, we hold that the expenses incurred by the assessee on account of commission expenses as discussed above is revenue in nature and accordingly the same is allowable for deduction u/s 37(1) of the Act. Hence, we set aside the order of ld CIT(A) and direct the AO to delete the same. Hence, the ground of appeal of the assessee is allowed.
In the result, appeal of the assessee is allowed.
Order pronounced in the Court on __08_ October, 2018 at Ahmedabad. (RAJPAL YADAV) ACCOUNTANT MEMBER Ahmedabad; Dated _08_/10/2018 Priti Yadav, Sr.PS
आदेश क" ""त"ल"प अ"े"षत/Copy of the Order forwarded to : 1. अपीलाथ" / The Appellant
""यथ" / The Respondent. 3. संबं"धत आयकर आयु"त / Concerned CIT 4. आयकर आयु"त(अपील) / The CIT(A) – 5, Ahmedabad. "वभागीय ""त"न"ध, आयकर अपील"य अ"धकरण, अहमदाबाद / DR, ITAT, Ahmedabad. 5. 6. गाड" फाईल / Guard file. आदेशानुसार/ BY ORDER, स"या"पत ""त //// उप/सहायक पंजीकार (Dy./Asstt.