Loading judgment…
No AI summary yet for this case.
Income Tax Appellate Tribunal, JAIPUR BENCHES (SMC
Before: SHRI BHAGCHANDvk;dj vihy la-@ITA No. 733/JP/2015
आयकर अपीलीय अधिकरण] जयपुर न्यायपीठ] जयपुर IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHES (SMC), JAIPUR Jh Hkkxpan] ys[kk lnL;] ds le{k BEFORE: SHRI BHAGCHAND, ACCOUNTANT MEMBER vk;dj vihy la-@ITA No. 733/JP/2015 fu/kZkj.k o"kZ@Assessment Year : 2011-12 cuke M/s Jasoria Products, I.T.O., Vs. Atte Wali Gali, Ward 1(3), Alwar. Jaipur. LFkk;h ys[kk la-@thvkbZvkj la-@PAN/GIR No.: AABFJ 2464 N vihykFkhZ@Appellant izR;FkhZ@Respondent fu/kZkfjrh dh vksj ls@ Assessee by : Shri Manish Agarwal (CA) jktLo dh vksj ls@ Revenue by : Shri R.A. Verma (Addl. CIT) lquokbZ dh rkjh[k@ Date of Hearing : 22/06/2017 mn?kks"k.kk dh rkjh[k@ Date of Pronouncement : 23/06/2017 vkns'k@ ORDER
PER: BHAGCHAND, A.M.
This is an appeal filed by the assessee emanates from the order of
the ld. CIT(A), Alwar dated 10/09/2015 for the A.Y. 2011-12, wherein the
assessee has taken following grounds of appeal: “1. On the facts and in the circumstances of the case the Ld. CIT(A) has grossly erred in sustaining an addition of Rs. 3,22,524/- out of the addition of Rs. 7,21,961/- made by Ld. AO by disallowing the payment of remuneration to partners claimed by assessee u/s 40(b), by misinterpreting the provisions of section 40(b) and ignoring the fact that the interest received from partners was in the due course of business and is always added in the gross profit for computing book profit for the
ITA 733/JP/2015_ 2 M/s Jasoria Products Vs ITO
purpose of calculation of amount allowable u/s 40(b). Thus, the addition of Rs. 3,22,524/- deserves to be deleted.
1.1 That, the Ld. CIT(A) has further erred in ignoring the fact that the accounts of assessee are audited u/s 44AB and no discrepancy whatsoever has been specified by the Auditor in the Audit Report. Therefore, the conclusion of Ld. AO as well as Ld. CIT(A) are based on mere assumption and presumptions. Hence, the addition of Rs. 3,22,524/- deserves to be deleted.
On the facts and in the circumstances of the case the Ld. CIT(A) has grossly erred in sustaining the lump sum disallowance of Rs. 4,000/- out of the addition of Rs. 8,055/- being 15% of the telephone, mobile expenses and depreciation on mobile phone on account of involvement of personal use without appreciating the genuineness of the claim, thus the disallowance so made deserves to be deleted.
On the facts and in the circumstances of the case the Ld. CIT(A) has grossly erred in sustaining the lump sum disallowance of Rs. 12,000/- out of the addition of Rs. 23,484/- being 15% of the expenses related to car on account of involvement of personal use without appreciating the genuineness of the claim, thus the disallowance so made deserves to be deleted.”
Ground No. 2 and 3 of the appeal was not pressed by the assessee,
therefore, the same are dismissed as not pressed.
In the ground No. 1 and 1.1 of the appeal, the issue involved is
against sustaining the addition of Rs. 3,22,524/- out of the addition of Rs.
7,21,961/- made by the Assessing Officer on account of disallowing the
payment of remuneration to the partners claimed U/s 40(b) of the Income
Tax Act, 1961 (in short the Act).
ITA 733/JP/2015_ 3 M/s Jasoria Products Vs ITO
While pleading on behalf of the assessee, the ld AR of the assessee
has submitted as under:-
“Under these grounds of appeal the assessee has challenged the action of Ld. CIT(A) in sustaining the disallowance of Rs. 3,22,524/- out of total disallowance of Rs. 7,21,961/- made by Ld. AO out of remuneration paid to partners u/s 40(b) of the Act.
Brief facts pertaining to these grounds of appeal are that during the year under consideration, the assessee firm has paid interest on loans taken and also received interest on loans given, which has been shown in the profit & loss a/c as follows:
Interest Received (Credited in P & L a/c) Interest Paid (Debited in P& L A/c) Interest on Loan from partner 6,41,094.73 Interest paid to 58,338.67 Bank Interest Received from Parties 5,62,173.65 Interest Paid to 11,94,429.00 Parties Interest paid to 1,03,555.61 partner 12,03,268.38 Total 13,56,323.28
In this regard, it is submitted that assessee firm had advanced loan to two of its partners namely, Sh. Suresh Chand Jasoria and Smt. Krishna Devi Jasoria, on which interest of Rs. 6,41,094/- was charged. Apart from this, interest of 5,62,173 was received, which represents interest on debtors as well as interest on loans and advances made, which are reflecting under the head “Loans & Advances (Asset)” under Current Assets.
Further, so far as interest paid is concerned, assessee has taken loan from one of its partners, on which interest amounting to Rs.1,03,095/- has been paid. Apart from this, interest on unsecured loans amounting to Rs.11,94,429/- and bank interest of Rs. 58,338/- has been paid.
Thus, entire interest received Rs.12,03,267/- and entire interest paid of Rs.13,56,323/- has been entered in profit & loss a/c.
ITA 733/JP/2015_ 4 M/s Jasoria Products Vs ITO
Further, on perusal of profit & loss a/c (APB 6-7), it is evident that assessee has debited Partner’s remuneration of Rs.16,09,744 to profit & loss a/c, which has been computed on accordance with provisions of section 40(b) /-, on the basis of net profit as per profit & loss a/c. At this juncture attention of the Hon’ble bench is invited to specific provision for computing the “BOOK PROFIT” for the purpose of working of allowable amount of partners remuneration as per section 40(b), which is given in Explanation 3 to section 40(b) which reads as under: “Explanation 3- For the purpose of this clause, “book-profit” means the net profit, as shown in the profit & loss account for the relevant previous year, computed in the manner laid down in Chapter IV-D as increased by the aggregate amount of the remuneration paid or payable to all the partners of the firm if such amount has been deducted while computing the net profits”
From the perusal of the specific provision regarding the computation of book profit where only two adjustments are permitted i.e. i) to be computed in the manner laid down in the Chapter IV-D viz the disallowable expenditures to be added and ii) such net profit to be increased by the amount of remuneration, if already debited in the Profit & Loss account.
In our case ld. AO exceeded his jurisdiction by not computing the book profit in the manner laid down in Explanation-3 to section 40(b) and proceeded to reduce the other income credited to the profit & loss account though such income could not the reduced whole computing the income as per chapter IV-D, thus any further adjustment in the book profit is against the spirit and the provisions section 40 which starts with the words “notwithstanding anything to the contrary in ss. 30 to 38, the following amount shall not be deducted ….”
During the course of assessment proceedings Ld. AO recomputed the partners remuneration at Rs.8,87,775/-, which was computed on net profit after reducing entire interest received of Rs.12,03,268 as stated above by treating the same as Income from Other Sources. However, no adjustment, whatsoever was made on account of interest paid.
On appeal, Ld. CIT(A) restricted the allowable partner’s remuneration to Rs.12,87,212/-, which was computed on net profit after reducing net interest
ITA 733/JP/2015_ 5 M/s Jasoria Products Vs ITO
received from partners of Rs.5,37,540/-,i.e. interest received from partners Rs.6,41,094.73 as reduced by interest paid to partner Rs.1,03,555.61.Accordingly, disallowance made by AO was restricted to Rs.3,22,524/-.
In this regard, it is submitted that the interest was received on business advances / loans and also since the partners have withdrawn their capital in excess to their contribution, interest was charged which is purely business income. It is also a matter of fact that Ld. AO had accepted the returned income as it is and not separated the interest income under the head Income from Other Sources which is apparent from the perusal of the Computation of Income in assessment order.
Thus, the approach of Ld. AO is not proper rather he accepted the mode and manner of the income declared by the assessee. Further interest is paid / received from partners is taxable / allowable u/s 40(b) which section is related to the computation of income of firm under the head “Income from Business or Profession”.
However, the Ld. AO has completely ignored the abovementioned facts and circumstances of the case and has observed that the interest income so received by the assessee from partners has wrongly been treated business income and held the same as income from other sources. Having held so, book profits of assessee were reduced by the amount of abovementioned interest income, as a result of which the quantum of remuneration to partners, as allowable u/s 40(b) of the Act also got reduced to Rs.8,87,775/-. Accordingly, addition was made by Ld. AO to the tune of reduction in remuneration allowable u/s 40(b) of the Act, being Rs. 7,21,961/-.
In appeal, the Ld. CIT(A) vide his aforementioned order, granted part relief to the assessee. Ld. CIT(A) at page 4 para 5.7, has recomputed the remuneration allowable to partners u/s 40(b) at Rs.12,87,212/- as follows:
Profit including interest before remuneration 25,32,893/- Less: Net Interest income (from partners) 5,37,540/- Business Income before remuneration 19,95,353/-
ITA 733/JP/2015_ 6 M/s Jasoria Products Vs ITO
Remuneration allowable to partners 12,87,212/- (90% of first Rs.3 lacs and 60% of the balance amount) Accordingly relief of Rs. 3,99,437/- was granted to assessee. On perusal of above, it is evident that Ld. CIT(A) has no objection on inclusion of interest received from debtors as well as third parties in book profit for computing remuneration allowable u/s 40(b), however net interest received from partners of Rs.5,37,540/- ,(i.e. after reducing interest paid to partner of Rs.1,03,555/-)has been reduced for computing partner’s remuneration. You honour would appreciate that so far as interest has been charged on loans given to partners which is at par with loans to third parties, there seems to be no reason for which interest from third parties to be considered as business income and that from partners as “Income from other sources.” Had assessee charged interest at a lower rate from partners, there could still be some possibility that both the transactions should not be treated at par in view of fundamental difference in the nature of transaction, which has not happened in the present case.
Further, nobody else than the businessman can decide the nature of transaction, whether the same has been carried out as a part of business or not. In this regard, it is further submitted that Ld. CIT(A) has, without any specific reason, concluded that Ld. AO has been correct in denying the remuneration to partners u/s 40(b) in respect of interest received from partners. So far as, abovementioned loans/advances were given as a part of business transaction of assessee, interest income received therefrom has to be treated as been business income. It is not a case of diverting the business funds without interest or at a lower rate of interest than marker rate, rather the loans/advances were given to partners at interest rate of 12% as to other parties, in respect of which there is no dispute. On the other hand, it is a normal business transaction entered out of commercial expediency.
In light of the above it is submitted that the interest income received by assessee from the partners is its business income and thus forms part of the book profit. Accordingly, the remuneration allowable u/s 40(b) has to be computed after including therein the aforementioned interest income as a part of book profit and
ITA 733/JP/2015_ 7 M/s Jasoria Products Vs ITO
thus the addition of Rs. 3,22,524/- sustained by the Ld. CIT(A) deserves to be deleted.
Reliance is placed on following decision passed by this Hon’ble Bench. 128 TTJ 68 S.P. Equipment & Services Vs. ACIT (Jaipur ‘A’) Firm – Disallowance under section 40(b) – Salary to partners vis-à-vis computation of book profit – For the purpose of computing allowable deduction under s.40(b), book profit has been defined under Expln.3 thereto to mean the net profit as shown in the P &L a/c of the relevant previous year computed in the manner laid down in Chapter IV-D subject to specified adjustments- Selection of any head of income, more particularly “Profits and gains of business of profession” is nowhere required or envisaged by the legislature- There is no substance in the contention of the Revenue that the receipts credited to P & L a/c should be assessed under different heads of income as classified under s.14- Legislature has not authorised exclusion of some receipts from P& L A/c even though they are non- business receipts- Explanation 3 nowhere empowers the AO to go behind the net profit shown in P &L a/c except to the extent of adjustments provided therein- Since the book profit has been defined to be the net profit shown in the P & L a/c of the firm, it is the profit which the partners have agreed to share and therefore such net profit has to be considered as business income at least for the purpose of S.40(b) – Provisions of s.28(v) also support this view- If the nature of the income has been deemed by the legislature to be the business income by the recipient, the source also should bear the same character i.e. business income- Therefore, interest income is not to be excluded from the net profit declared by the assessee firm for computing book profit for the purpose of determining the allowable deduction of remuneration payable to the partners under s.40(b).” He also pleaded that the issue is covered by the decision of the Hon’ble
ITAT, Jaipur Benches, Jaipur in the case of S.P. equipment & Services Vs.
ACIT in ITA No. 464/JP/2011 order dated 30th September, 2009.
On the other hand, the ld Sr. DR has relied on the orders of the
authorities below.
I have heard both the sides on this issue, I am of the view that the
issue raised in grounds No. 1 and 1.1 are directly covered by the decision
of the ITAT, Jaipur Benches, Jaipur in the case of in the case of S.P.
ITA 733/JP/2015_ 8 M/s Jasoria Products Vs ITO equipment & Services Vs. ACIT (supra). The relevant portion of the order
has already been reproduced in the submission of the ld AR, therefore, by
respectfully following the same, I allow ground No. 1 and 1.1 of the appeal.
In the result, the appeal of the assessee is partly allowed.
Order pronounced in the open court on 23/06/2017. Sd/- ¼Hkkxpan½ (BHAGCHAND) ys[kk lnL;@Accountant Member Tk;iqj@Jaipur fnukad@Dated:- 23rd June, 2017 *Ranjan आदेश की प्रतिलिपि अग्रेf’ात@ब्वचल वf जीम वतकमत वितूंतकमक जवरू vihykFkhZ@The Appellant- M/s M/s Jasoria Products, Alwar. 1. izR;FkhZ@ The Respondent- The ITO, Ward 1(3), Jaipur. 2. vk;dj vk;qDr@ CIT 3. vk;dj vk;qDr¼vihy½@The CIT(A) 4. विभागीय प्रतिनिधि] आयकर अपीलीय अधिकरण] जयपुर@क्त्ए प्ज्Aज्ए Jंपचनत 5. xkMZ QkbZy@ Guard File (ITA No. 733/JP/2015) 6. vkns'kkuqlkj@ By order,
सहायक पंजीकार@Aेेज. त्महपेजतंत