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Income Tax Appellate Tribunal, MUMBAI BENCHES “A”, MUMBAI
Before: Shri Saktijit Dey & Shri G. MANJUNATHA,
सुनवाई क� तार�ख / Date of Hearing : 19/06/2019 28/06/2019 आदेश क� तार�ख /Date of Order: आदेश / O R D E R
Per G. Manjunatha, Accountant Member
This appeal filed by the Revenue is directed against order of the Ld CIT(A)-4, Mumbai, dated 04/08/2016 and it pertains to AY-2010-11.The Revenue has raised following grounds of appeal:- 1. "On the facts and in the circumstanced of the case and in law, the Ld. CIT(A) erred in allowing the salary, wages and bonus expenses by ignoring the fact that 2 M/s Ascent Advisory Services Pvt. Ltd. the assessee has not submitted the complete details on the basis of which verification could be made, thereby failed to discharge the onus cast on it." 2. "On the facts and in the circumstanced of the case and in law, the Ld. CIT(A) has erred in deleting the disallowance of business support services expenses by holding that mere non-receipt of reply from the parties does not mean that expenses were not genuine, thereby ignoring that the onus to prove the expenses were genuine now shifts to the assessee. "
3. For these and other grounds that may be urged at the time of hearing, the decision of the CIT(A) may be set aside and that of the-AO restored.
The brief facts of the case are that the assessee is engaged in the business of rendering business support services and recovery of assigned debts, filed its return of income for AY-2010-11 on 15/10/2010, declaring total income at Ra.1,30,89,729/-. The case was selected for scrutiny and notice u/s 143(2) and 142(1) of the Income Tax Act, 1961(hereinafter ‘the Act’) were issued. In response to notices, the Authorised Representative of the assessee appeared from time to time and filed details as called for.
During the course of assessment proceedings, the AO noticed that the assessee has claimed huge expenditure under the head salaries, wages and bonus and also under the head business support services, therefore in order to verify correctness of expenditure debited under various in head profit & loss account, called upon the assessee to file necessary supporting evidences. In response, the assessee vide letter dated 15/03/2003 submitted details in respect of salaries, wages and bonus amounting to Rs.1,25,75,909/- and business support services expenses amounting to Rs.83,60,198/-only. The AO on the basis of information furnished by the assesses, observed that in spite of sufficient time and opportunity, the assessee has failed to file details for remaining amount of expenses debited under the head salaries, wages and business support services, therefore, after considering the relevant facts and also by following various judicial precedence, held that 3 M/s Ascent Advisory Services Pvt. Ltd. the assessee has failed to file supporting evidences in respect of salaries, wages and bonus amounting to Rs.69,53,750/- and business support services expenses amounting to Rs.63,56,442/- and hence disallowed both expenses and added back to the total income of the assessee. The relevant findings of the AO are as under:-
“4.1. It is seen from the Profit & Loss Account, the assessee has debited an amount of Rs.19529659/- towards Salaries, wages and bonus and an amount of Rs. 14716640/- towards Business Support Services. During the course of assessment proceedings, the Authorized Representative of the Assessee was asked to submit the details of the expenses and also submit the bank statement in respect of these payments. The Authorized Representative of the Assessee vide letter dated 15.03.2003 submitted the details in respect of salaries, wages and bonus amounting to Rs. 1,25,75,9097- and Business Support Service expenses amounting to Rs. 83,60,1987- only. However, in spite of sufficient time and opportunity given, the assessee has failed to remaining details of expenses i.e. salaries, wages and bonus amounting to Rs.69,53,7507- and Business Support Service expenses amounting to Rs.6356442/-.
4.2. In the event of non-furnishing of details, it is presumed that assessee has nothing to say in this matter. It is pertinent to mention here that before allowing any expenditure, one has to take into consideration the question of commercial expediency and principles of ordinary commercial trading and the gain consideration that has got to weigh is where the expenditure was part of the process of profit making Reliance is placed on Security Printers of India P Ltd Vs. CIT(1978) 78 ITR 766.
4.3. Where the expenditure was wholly and exclusively laid out for the purpose of business, reasonableness of the expenditure has to be from the point of view business, but such point of view whatever to be prudent reasonable point of view which is free from a apportioned text of callousness and colorable discretion. Reliance is placed on SiddhoMal & sons Vs. CIT ' (1980) 122 ITR 839.
4.4. In view of the above discussions and the case laws quoted it is held that the expenses claimed but not reflected in bank statements are not said to be genuine and incurred wholly and exclusively for the purpose of business. Therefore the details of expenses not furnished by the assessee is not allowable u/s.37(1) of the I.T. Act.
4.5. Hence, salaries, wages and bonus amounting to Rs.69,53,7507- and Business Support Service expenses amounting to Rs.63564427- are hereby disallowed and added back to the total income of the assessee. Since the assessee has furnished inaccurate particulars of income, penalty proceedings u/s.271(1)(c)are initiated separately.”
4 M/s Ascent Advisory Services Pvt. Ltd. 3. Aggrieved by the assessment order, the assessee preferred an appeal before the Ld CIT(A). Before the Ld. CIT(A), the assessee has filed additional evidences along with application for admission of additional evidences vide its application dated 08/06/2014. The Ld CIT(A), during the course of appellate proceedings, considering relevance of additional evidences, forwarded additional evidences filed by the assessee to the AO for his comment.
The AO, vide its remand report dated 06/10/2015 commented upon additional evidences filed by the assessee and submitted that the assessee had filed details of salaries and wages of Rs.1,89,57,504/- and also business support services expenses of Rs.1,47,16,640/-. However, further, observed that the details are not cross verifiable and moreover full details have not been submitted, hence the explanation of the assessee cannot be accepted. The AO further commented that out of salary expenses of Rs.1,89,57,504/-, the assessee has failed to furnish details in respect of a sum of Rs.5,72,155/- and also further a sum of Rs.15,97,902/- has been shown as deduction from gross salary on the ground that the same has been adjusted out of salary advances, therefore, he submitted that the issue may be decided on merits of the case.
The Ld. CIT(A) after considering relevant submissions of the assessee and also taken note of remand report issued by the AO observed that the assessee has submitted details of salaries, wages and bonus to the extent of Rs.1,89,57,504/- whereas debited into profit & loss account a sum of Rs.1,95,29,659/-. Further, a difference of Rs.5,72,155/- has not been explained with necessary evidences, accordingly confirmed the additions made by the AO towards disallowance of salary, wages and bonus to the extent of Rs.5,72,155/-and
5 M/s Ascent Advisory Services Pvt. Ltd. the remaining amount has been deleted. In so far as, business support services expenses of Rs.63,56,442/-, the Ld CIT(A) observed that the AO has admitted the fact that out of six employees two have replied to notices under section 133(6) of the Act and confirmed they have received the business support expenses, therefore, merely for the reason that some parties have not responded to notices, no adverse inference could be drawn when the assessee has filed complete details of payment made to the parties in respect of business support services, accordingly deleted additions made by the AO. The relevant observations of the Ld. CIT(A) are as under:-
“9. I have considered the finding of the AO, rival submission of the appellant, remand report and counter-representation of the appellant. I find that the appellant has submitted details of salary, wages and bonus to the extent of Rs. 1,89,57,504 whereas expenditure was debited to the extent of Rs. 1,95,29,6597-. Thus, full details and verifiable evidence of Rs. 5,72,1557- has not been given. The Id.AO has very specifically mentioned it in para 5.3 of the remand report. In counter representation, no such evidence has been given justifying such remaining expenses, but, has confirmed the finding of the AO that full details of expenses of Rs. 5,72,1557- has not been given. Hence, to this extent, disallowance of expenditure is sustained.
As regards balance amount of Rs. 15 97,9027- I find force in the contention of the Id.AR that such amount was advanced and during the Remand Report proceedings, the AO had not verified or investigated the details. Had the AO asked about the deductions, the appellant would have submitted the details accordingly. The AO also does not speak about any deficiency, hence, such expenditure cannot be sustained, therefore, balance addition of Rs. 15,97,9027-is deleted.
As regards disallowance of Rs. 63,56,4427- being business support services expenses fhe remand report submitted in para 5.4, nothing has been clarified by the AO as to how such expenses are not genuine one. The AO has admitted that out of six employees, two have replied the notice u/s 133(6). Merely on the reason that notices have been issued but no reply has been received, such expenditure cannot be disallowed. Mere non- receipt of reply does not mean that expenses were not genuine one. Since the AO has not established otherwise, such disallowance of expenditure cannot be sustained, hence, expenditure of Rs. 63,56,4427- is deleted.”
6 M/s Ascent Advisory Services Pvt. Ltd. 5. The Ld. DR submitted that the Ld CIT(A) has failed to appreciate the fact in right perspective which is evident from the fact that even though the Ld. AO in remand proceedings, categorically stated that in absence of necessary details, the details filed by the assessee in support of salaries, wages and bonus and also business support services expenses cannot be verified. In spite of negative comment on the evidences filed by the assessee in support of said expenses, the Ld. CIT(A) have taken a clue from remand report in respect of amount of Rs.5,72,155 where the assessee could not file even single evidence in support of expenditure, confirmed the additions made by the AO to that extent and deleted remaining amount without recording any finding as to how expenditure claimed under the head salaries wages and also under the head business support services is explained with necessary evidences. The Ld DR further referring to paper book filed by the assessee submitted that the assessee has failed to file even reconciliation between expenses debited into profit & loss account and corresponding payment made to concerned employees/parties with necessary evidences. There is a lot of anomalies in the papers filed by the assessee as per which nothing is coming out from the records to prove that said amount in fact paid to the employees. The Ld. CIT(A) has ignored all these crucial aspects while deleting additions made by the AO and hence findings of the CIT(A) should be reversed and the additions made by the AO should be sustained.
The Ld AR for the assessee strongly supported the order of the Ld CIT(A) and also referring to paper book filed during the course of hearing submitted that the assessee has filed complete reconciliation between expenditure under the head salaries, wages and 7 M/s Ascent Advisory Services Pvt. Ltd. bonus to the payments made by cheque, as per which, there is no difference between payment made for the year and amount debited into profit and loss account. Although, the AO has not commented on the additional evidence which is filed by the assessee, but the CIT(A) has taken note of those evidences and come to the conclusion that the assessee has filed complete details in respect of expenditure debited under the head salaries, wages and bonus except to the extent of Rs.5,72,155/-. In so far as business support services expenses complete reconciliation has been filed along with name of the parties and their PAN numbers to whom such payments were made. The AO has also issued notice under section 133(6) for which two parties has been confirmed, therefore, in absence of any adverse comment on the evidences filed by the assessee in support of expenditure no disallowance could be made. The Ld. CIT(A) after considering relevant submissions of the assessee has rightly deleted additions made by the AO and its order should be upheld.
We have heard both parties, perused the material available on the record and gone through orders of the authorities below. The AO has disallowed part of expenditure debited under the head salaries, wages and bonus and also part of expenditure under the head business support services on the ground that the assessee could able to file supporting evidences in respect of part of expenditure. The Ld. CIT(A) has deleted additions made by the AO, except to the extent of Rs.5,72,155/- in respect of salaries, wages and bonus on the basis of additional evidences filed by the assessee during the course of appellate proceedings and also on the basis of remand report of the AO. We find that the AO has commented upon additional evidences filed by the assessee during the remand
8 M/s Ascent Advisory Services Pvt. Ltd. proceedings and accepted that the assessee has filed complete details of expenses debited under the head salaries, wages and bonus of Rs.1,89,57,404/- and business support services expenses of Rs.1,47,16,640/-. The AO further stated that he could not cross verified expenses in absence of specific details with regard to deduction claimed towards advance salary. Except this, the AO never made any adverse comment on additional evidences filed by the assessee. The Ld. CIT(A) after taking note of additional evidences filed by the assessee, deleted additions made by the AO in respect of salaries, wages and bonus except to the extent of Rs.5,72,155/- where the assessee could not file any details.
Similarly, in respect of business support services expenses, the Ld. CIT(A) has recorded categorical findings to the effect that the assessee has filed reconciliation between payment made under the head business support services with name of the parties and their PAN numbers. All these evidences are part of paper book filed by the assessee. We find that the assessee filed complete reconciliation of expenses debited under the head salaries, wages and bonus as per which the gross salary has been debited in the profit & loss account and after deducting statutory deduction in respect of TDS profession tax, employer contribution to statutory funds and also advanced paid to the employees against salary, net amount has been paid through bank account. The assessee has also filed complete set of bank statement to prove the payments of salary through proper banking channel. Similarly, in respect of business support service expenses, complete list of party to whom payment has been made was filed along with their PAN numbers. We find that the assessee has paid business support service expenses after deducting necessary TDS applicable as per law.
Even, during remand proceedings, the AO has issued 133(6) notices to certain parties for 9 M/s Ascent Advisory Services Pvt. Ltd. which few parties have responded. Therefore, we are of the considered view that the Ld.
CIT(A) has considered necessary facts in light of additional evidences filed by the assessee to delete additions made towards salaries, wages and bonus and business support service expenses. We do not find any error in the findings of the Ld. CIT(A) and hence we are inclined to uphold the order of the Ld. CIT(A) and dismissed the appeal filed by the Revenue.
In the result, appeal filed by the Revenue is dismissed.
Order pronounced in the open Court on 28/06/2019. Sd/- Sd/- (Saktijit Dey) (G. Manjunatha) �या�यक सद�य /JUDICIAL MEMBER लेखा सद�य / ACCOUNTANT MEMBER मुंबई Mumbai; �दनांक Dated : 28/06/2019 f{x~{tÜ f{x~{tÜ? P.S //.�न.स. f{x~{tÜ f{x~{tÜ आदेश क� ��त�ल�प अ�े�षत/Copy of the Order forwarded to : 1. अपीलाथ� / The Appellant (Respective assessee) 2. ��यथ� / The Respondent. 3. आयकर आयु�त(अपील) / The CIT, Mumbai. 4. आयकर आयु�त / CIT(A)- , Mumbai, 5. �वभागीय ��त�न�ध, आयकर अपील�य अ�धकरण, मुंबई / DR, ITAT, Mumbai 6. गाड� फाईल / Guard file. आदेशानुसार/ BY ORDER,