JCIT(OSD), CIRCLE- 16(2), NEW DELHI vs. MAX MEDICAL SERVICES LTD., NEW DELHI

आदेश/ORDER आदेश आदेश आदेश PER SUSHMA CHOWLA,VP This bunch of four appeals filed by Revenue are against orders of CIT(A)- 6, Delhi dated 11.01.2017, 14.06.2017, 02.04.2018 and 23.10.2018 relating to assessment years 2012-13 to 2015-16 respectively against the order passed under section 143(3) of the Income-tax Act, 1961 (in short ‘the Act’).

Esufali HM Abdulai (1973) 90 ITR 271? 4. Whether in facts and on circumstances of the case, the Ld. CIT(A) is legally justified in holding the decision arrival at in one assessment year by his predecessor is binding on him by ignoring that the principle of Estoppels (i.e. decision arrived at in one assessment year is not binding in subsequent assessment years) has no application to the income tax proceedings?

However, we refer to the facts and issues in relating to Assessment year 2012-13 to adjudicate the present bunch of appeals.

The assessee company agreed to receive 8% of the share of revenue earned by Devki Devi Foundation towards leasing of medical & other equipment. Earlier this percentage was fixed at 10% vide agreement dated 10.12.2001. Similarly, vide separate agreement dated 21.02.2009, the assessee agreed to receive 5% of the share of revenue earned by M/s Devki Devi Foundation for maintenance and healthcare facilities provided by the assessee company. Earlier this percentage was 6% as per Agreement dated 10.12.2001. The assessee was asked to explain as to why the expenses equal to the amount by which the income from lease and income from maintenance has been reduced, due to downward re-adjustment of percentage of profit as per the agreement dated 21.02.2009, be not disallowed. The reply of the assessee is reproduced at pages 2 to 11 of the assessment order. The Assessing Officer vide para 2.1 at page-12 of the assessment order noticed that the explanation of the assessee was similar to earlier submission made during the assessment proceedings for Assessment Year 2011-12. Reference was made to the extract of the order for Assessment Year 2011-12 and following the same stand as in the earlier year the expenditure incurred by the assessee during the year equal to the reduction of percentage in the revenue i.e. Rs.4,68,45,000/- was disallowed.

Coming to the second aspect of disallowance of 5% being expenditure attributable to goods sold on cost to cost basis to the sister concern, the said addition was also deleted by the CIT(A) following the findings in the earlier order.

“12. As regard to the ad-hoc disallowance made by the AO, the assessee submitted to the ld. CIT(A) that the AO made the arbitrary disallowance without pointing out, any defect in the books of accounts maintained or any specific vouchers of disallowable nature. The said action of the AO was purely based on suspicion and surmises without bringing any evidence on record in support of the disallowance. The reliance was placed on the following case laws:

 Dwarka Prasad Agarwal Vs ITO 52 ITD 239 (Cal)  Rattah Mechanical Works Ltd. Vs ITO 87 Taxman 288 (Chd.)  Shriram Pistons and Rings Ltd. Vs IAC 39 TTJ 132 (Del.)

 Roger Enterprises Pvt. Ltd. Vs ITA 52 TTJ 198 (Del.)  Ramji Das Modi Vs DCIT 110 Taxman 107 (JP)  ACIT Vs Bateli Tea Co. Ltd. (2003) SOT 72  Continental Seeds & Chemicals Ltd. Vs ACIT (2003) SOT 393 13. The ld. CIT(A) after considering the submissions of the assessee observed that the assessee had entered into an agreement for leasing of equipment and construction/maintenance of hospital building with Devki Devi Foundation for consideration of 10% and 6% of annual turnover of the hospital respectively. The said agreements were revised during the relevant assessment year whereby the percentage of fee agreed was revised downward from 10% to 8% and 6% to 5% respectively, in accordance with the terms of supplementary agreement dated 21.02.2009. He further observed that the nexus drawn by the AO between the expenses incurred by the assessee during the year for the purposes of business and downward revision in the fee receivable from M/s Devki Devi Foundation was not supported by any material fact. He further observed that the legal position had been emphasized by the Hon’ble Delhi High Court in the case of CIT Vs B. Dalmia Cement Ltd. (supra) wherein it was held that once it was established that there was nexus between the expenditure and the purpose of the business (which need not necessarily be the business of the assessee itself), the revenue cannot justifiably claim to put itself in the shoes of the businessman to decide the reasonableness of any expenditure having regards to the circumstances of the case and that the expenses had been incurred by the assessee for the purposes of business and there was no iota nor any single voucher/expense had been pointed out, suggesting that the expenditure had not been incurred for the purposes of business or was excessive having regard to the fair market, therefore, in the absence of any such finding, there was no provision in law which mandates an AO to disallow part of an expenditure on ad-hoc basis. The ld. CIT(A) also discussed in para 5.3.4 of the impugned order, the ratio laid down by various Hon’ble Courts and the ITAT and further observed that there was no decline in the gross revenue earned by the assessee from M/s Devki Devi Foundation which had increased in absolute terms vis-à-vis the preceding year and that it was only the percentage of fees agreed between the parties originally was revised downward, on grounds of commercial expediency which could not be disputed/dictated by the AO. The ld. CIT(A) deleted the ad-hoc disallowance made by the AO.”

Whether the ITAT is justified in deleting the disallowance made by the Assessing Officer (‘AO’) on account of the change in percentage of profit of the Assessee and M/s Devki Devi Foundation from 10% to 8%?

15. Now, coming to the next issue of disallowance of expenditure attributable to goods sold on cost to cost basis. Similar issue was before the Tribunal in earlier year also. Both the Assessing Officer and CIT(A) have relied upon the respective orders of the Assessing Officer and the CIT(A) in earlier year. For the sake of convenience, we refer to the observations of the Tribunal vide paras 14 to 17 which read as under:-

“14. As regards to the disallowance on account of expenditure attributable to goods sold on cost to cost basis. The ld. CIT(A) observed that it had not been established by the AO that any undisclosed income was earned by the assessee nor any tangible material was available on record for the same, consequently no addition to income was to be made in the assessment order. According to the ld. CIT(A) if the expenditure was found to have been incurred for the purposes of business, no part thereof can be disallowed on ad-hoc basis. The ld. CIT(A) was held that there was no valid basis to disallow expenses incurred during the relevant year, admittedly, for the purposes of business, without there being any single expenditure/voucher suggesting no business nexus. Accordingly, the disallowance made by the AO was disallowed.

17. We have considered the submissions of both the parties and perused the material available on the record. In the present case, it appears that the AO made the disallowance of the expenses only on this basis that there was reduction in the sharing of the revenue in comparison to the earlier years, no other reasons has been given. In the instant case, it is also noticed that there was increase in the income earned by the assessee in comparison to the earlier year i.e. 53% more than the preceding year as is evident from the chart furnished by the assessee before the ld. CIT(A), which shows that even after reduction in the percentage of share, the assessee earned more revenue in comparison to the earlier year. In the present case, the AO did not point out any defect in the books of account maintained by the assessee in the regular course of business, it was also not brought on record that any of the expenses was not incurred wholly and exclusively for the purpose of the business. The AO made the disallowance only on the basis of surmises and conjecture which is not tenable in the eyes of law. Moreover, the AO did not bring anything on record to substantiate that by reducing the percentage of share of fee, the assessee was looser in terms of earning the revenue and that the extra expenses were incurred by the assessee in the same ratio in which the revenue sharing was reduced. The contention of the assessee that the reduction in the fees from leasing of equipments/maintenance of the office

building was on account of business exigency, had not been rebutted at any stage. We, therefore, by considering the totality of the facts of the present case, are of the view that no interference is called for in the well reasoned order passed by the ld. CIT(A). Accordingly, we do not see any infirmity in the impugned order.

Order pronounced in the open court on 31st July, 2020.