ACIT, NEW DELHI vs. M/S. NUSSLI SWITZERLAND LTD., NEW DELHI

This appeal by Revenue has been directed against the Order of the Ld. CIT(A)-27, New Delhi, Dated 27.01.2017, for the A.Y. 2012-2013, challenging the deletion of disallowance of loss of Rs.1,87,37,906/-.

Short term provision as Rs. 26,44,599/- Fee for technical services, fee for Rs. 37,36,713/- professional and consultancy services Salary Rs. 32,13,600/- Supervision and Consultancy foreign Rs. 1,57,11,956/- 2.1. Whereas no work was done by the assessee during the year and no computation for loss of claim was filed. In this background, the A.O. disallowed the loss claimed by the assessee of Rs.1,87,37,906/-.

2.2. The assessee challenged the addition before the Ld. CIT(A). the written submissions of the assessee is reproduced in the appellate order in which the assessee briefly explained that assessee filed complete details before A.O. The assessee was in the business of supplying material for Commonwealth Games which took place in ay 2011- 2012 and was also engaged in undertaking the incidental activities thereto. The assessee supplied the required

3 ITA.No.2142/Del./2017 M/s. Nussli Switzerland Ltd., New Delhi. material and landed in complex litigation and its payments were stuck up. The assessee has been following its recovery and contesting the cases in the ordinary course of business. These expenses incurred are of administrative nature, litigation and audit fee etc., which are allowable as is held in judicial decisions which shows that even in cases of defunct company, the expenses incurred to retain the status as a company are allowable expenditure. In the instant case, assessee company has incurred the expenditure not only for retaining its status but carrying on its business including the matters arising out of the conduct of business. Therefore, deductions are allowable. The assessee relied upon decision in the case of ITO vs. Mokul Finance Ltd., 110 TTJ 445 (Del.). It was also submitted that there was a continuation of business carried on by assessee. The assessee furnished complete details in support of the above explanation. The assessee has suffered losses which is allowable deduction. The Ld. CIT(A) considering the material on record, allowed the claim of assessee and deleted the 4 ITA.No.2142/Del./2017 M/s. Nussli Switzerland Ltd., New Delhi. addition. His findings in para 5.3 and 6 of the Order are reproduced as under :

“5.3. Finding :

I have examined the observations made by the AO in the impugned assessment order, written submissions and supplementary submissions of the appellant and various evidences placed by the appellant in the paper book submitted and with supplementary written submissions submitted. The AR also produced before me various replies / details filed by the assessee before the AO during the course of assessment proceedings, whereas the AO has not referred to any details / evidences / replied filed by the AR, in the impugned assessment order before disallowing the loss claimed by the assessee. It is observed from the assessment order that while passing the impugned assessment order no details filed by the AO were referred to, and without making any effort to verify the same with the claim made by the assessee in the Profit and Loss A/c, the AO disallowed the claim of the appellant assessee

5 ITA.No.2142/Del./2017 M/s. Nussli Switzerland Ltd., New Delhi. company. I find that assessee company has debited its profit and loss A/c claiming following expenses against Nil receipts :-

Supervision and consultancy services Rs. 600(000) – India Freight, transportation & Handling Rs. 225(000) Bank Guarantee Commission Rs.10732(000) Payment to Auditors Rs. 200(000) Foreign Exchange Fluctuation – Loss Rs.40351(000) Administrative Expenses Rs. 7144(000) “Total Expenses debited to P & L A/c Rs.59251(000)(A) Out of above assessee himself added back the following expenses debited to Profit and Loss A/c. Interest Rs. 30(750) Foreign Exchange Fluctuation – Loss Interest Rs. 30(750) Foreign Exchange Rs.40350(511) Fluctuation – Loss Expenses to which TDS Rs. 206(692) not deducted Total of the above Rs.40587(953) Rs.40588(000) (B) Balance of (A)- (B) Rs.18663(000) (C)” Less Expenses disallowance made in preceding year u/s.40(a)(ia) to be 6 ITA.No.2142/Del./2017 M/s. Nussli Switzerland Ltd., New Delhi. allowed in the year under consideration, Rs. 75(000) since paid tax was deposited during the year u/s. Total business loss claimed by the Rs.18738(000) assessee as per computation of income/Return of income.

Thus, after examining the ledger accounts and corresponding bills produced before me, I find that the above business loss claimed by the appellant assessee is on account of Supervision and Consultancy services - Rs.6,00,000/- + Freight, transportation 8s Handling Rs.2,24,932 + Bank Guarantee Commission Rs.1,07,31,688/- + Professional & Consultancy Services paid Rs.69,80,490/-, Telephone Expenses Rs.1,32,487/- + Rs.75,000/- Disallowance made in preceding previous year u/s 40(a)(ia), to be allowed during the year since tax paid during the year. These expenses are incurred by the appellant for the business activities of the assessee, and the assessee company has not yet been closed.

In view of my above observations, as the assessment order has been passed by the AO ignoring the details / evidences /

7 ITA.No.2142/Del./2017 M/s. Nussli Switzerland Ltd., New Delhi. replies submitted by the assessee during the course of assessment proceedings, the loss claimed on account of expenses incurred in order to meet out the business exigencies of the assessee company and therefore, the same deserves to be allowed. I do not find any reason to sustain the action of the AO, therefore, the business loss claimed by the appellant is hereby allowed.

6. In the result, the appeal is allowed.”

Order pronounced in the open Court.