Loading judgment…
No AI summary yet for this case.
Income Tax Appellate Tribunal, “A” BENCH, MUMBAI
Before: SHRI SAKTIJIT DEYAND SHRI MANOJ KUMAR AGGARWAL
Date of Hearing – 16.04.2019 Date of Order – 31.05.2019
O R D E R PER SAKTIJIT DEY. J.M.
Aforesaid appealshave been filed by the Revenue challenging three separate orders, dated 21st June 2017 and 20th June 2017, passed by learned Commissioner of Income Tax (Appeals)–12, Mumbai, for the assessment year 2007–08, 2008–09 and 2009–10.
./2017 A.Y. 2009–10 2. In grounds no.1, 2 and 3, Revenue has challenged the deletion of addition of advisor’s fees received from India Value Investment Ltd. (INVIL).
2 Ask Investment Managers Pvt. Ltd.
Brief facts are, the assessee, an Indian Company, is engaged in the business of providing investment advisory, portfolio management and other financial services. For the assessment year under dispute, the assessee filed its return of income on 30th September 2009, declaring total income of ` 5,18,37,377. The assessment in case of the assessee was completed under section 143(3) of the Income Tax Act, 1961 (for short "the Act"), vide order dated 29th December 2011. While completing the assessment, the Assessing Officer made certain additions/disallowance aggregating to ` 2,51,22,895. Against the additions/disallowances made by the Assessing Officer, the assessee preferred appeal before learned Commissioner (Appeals). During the appeal proceedings, learned Commissioner (Appeals), while going through the audited financial statement of the assessee noticed that as per Note–16 to the Notes of Account forming part of audited financial statements, it was stated that the assessee was to receive advisory fees of GBP 14,78,484, from INVIL. However, the aforesaid amount was not credited to the Profit & Loss Account. Being of the view that the Assessing Officer failed to examine the taxability of the aforesaid income during the assessment proceedings, learned Commissioner (Appeals) called upon the assessee to explain why income should not be enhanced by bringing to tax the advisory fee receivable from INVIL. As alleged by the Assessing Officer, except submitting that the amount
3 Ask Investment Managers Pvt. Ltd. pertains to the assessment year 2006–07 to 2009–10, the assessee neither furnished any documentary evidences nor break–up. Accordingly, he added back an amount of ` 10,07,63,268, equivalent of GBP 14,78,484, at the hands of het assessee. The assessee challenged the aforesaid addition in an appeal filed before the Tribunal. The Tribunal while deciding the appeal of the assessee vide ITA no.2394/Mum./2014 and Ors., dated 9th January 2015, restored the issue back to the file of learned Commissioner (Appeals) for fresh adjudication with certain directions. In course of appeal proceedings in pursuance to the directions of the Tribunal, learned Commissioner (Appeals) called for necessary details from the assessee. In response to the query raised by learned Commissioner (Appeals), the assessee furnished necessary details and submitted that there was a dispute with INVIL with regard to the services rendered and amount payable to the assessee. It was submitted, the dispute between the parties was ultimately settled vide settlement deed dated 9th April 2009 and the assessee ultimately received rupee equivalent of GBP 12,14,022 which was offered to tax by the assessee in the return of income filed for the assessment year 2010–11. It was submitted by the assesseethat since there was uncertainty with regard to receipt of investment advisory fee due to dispute between the parties, as per Accounting Standard (AS)–9, assessee recognized the revenue when the dispute was settled and the assessee received the amount. Thus, it
4 Ask Investment Managers Pvt. Ltd. was submitted, the amount received from INVIL is taxable in the assessment year 2010–11. In support of such contention, the assessee relied upon a number of case laws. Learned Commissioner (Appeals) after considering the submissions of the assessee in the context of facts and material on record including the settlement agreement, ultimately concluded that the investment advisory fee received by the assessee from INVIL on settlement of dispute has accrued as income at the hands of the assessee in the assessment year 2010–11. Hence, the amount was rightly offered as income in the said assessment year. Accordingly, she held that the amount is not taxable in the impugned assessment year. While doing so, she relied upon certain judicial precedents including two decisions of the Tribunal, Pune Bench, as referred to in the appeal order.
Shri Anadi Verma, learned Departmental Representative in addition to submissions made orally in course of hearing has also submitted a written note. He submitted, in the financial statements, the assessee has accepted that GBP 14,78,484, was due from INVIL towards advisory fee. Therefore, income to that extent has accrued to the assessee in the impugned assessment year. He submitted,as per AS–9 issued by the Institute of Chartered Accountants of India (ICAI), revenue has to be recognized if it is measurable with reasonable certainty and there is certainty with regard to ultimately collection. He
5 Ask Investment Managers Pvt. Ltd. submitted, neither before the Assessing Officer nor before the first appellate authority the assessee furnished any documentary evidences to demonstrate that there was dispute between the parties leading to uncertainty in receiving the advisory fees. He submitted, the settlement agreement was admittedly not placed before the first appellate authority in the first round and in the second round, the first appellate authority has not discussed in detail the effect of the settlement agreement. He submitted, the settlement agreement has also not been placed before the Tribunal. Thus, he submitted, assessee’s claimed that due to dispute between the parties there was uncertainty in receiving the advisory fees is not established through proper documentary evidence. He submitted, at this stage, the assessee cannot improve upon the order passed by learned Commissioner (Appeals) by making out a new case. In this context, he referred to the decision of the Hon'ble Supreme Court in Gordhandas Bhaji [AIR 1952 SC 62], as cited in the written note. He further submitted, in the facts of the present case, the dispute, if at all, was by one party and there was no dispute by the assessee. Insofar as the assessee is concerned, there was an enforceable debt and the right to receive itwas recognized by the assessee in the Notes to Account. Further, he submitted, the impugned order of learned Commissioner (Appeals) is contrary to the directions of the Tribunal.
6 Ask Investment Managers Pvt. Ltd.
Shri J.D. Mistry, learned Sr. Counsel for the assessee submitted, the assessee was to receive GBP 17,14,484 from INVIL towards investment advisory fees for the financial years 2005–06 to 2008–09. However, INVIL raised dispute with regard to the fees payable and the dispute was continuing between the parties. He submitted, since there was uncertainty with regard to receivability of the amount from INVIL, the assessee had mentioned this fact in the Notes to Account forming part of the audited statement for the assessment year 2006–07 to 2009–10. He submitted, ultimately a settlement was reached between the assessee and INVIL vide agreement dated 9th April 2009 and the amount receivable by the assessee was settled at a reduced figure of GBP 12,14,022. The assessee received the aforesaid amount in the financial year 2009–10 and offered the rupee equivalent of GBP 12,14,022 as income in the return of income filed for the assessment year 2010–11. He submitted, the Department has also assessed the said income in the assessment year 2010–11. Thus, he submitted, the amount received by the assessee from INVIL towards investment advisory fee has ultimately been taxed in the assessment year 2010– 11. Therefore, he submitted, the Department cannot have any grievance as ultimately it is tax neutral since the income has to be taxed in one assessment year or another. Drawing our attention to the AS–9 issued by the ICAI, learned Sr. Counsel for the assessee submitted, the Accounting Standard makes it clear that when there is 7 Ask Investment Managers Pvt. Ltd. uncertainty with regard to collectability of the amount receivable towards sale or service rendered, the revenue can be recognized when the amount is actually received by the assessee on settlement of dispute. The learned Sr. Counsel submitted, the amount receivable by the assessee did not arise because of a statutory liability but from a contractual liability. Therefore, until the dispute with regard to the amount receivable is settled, there was no scope of recognizing revenue with certainty. Hence, the assessee was justified in offering the income when it was actually received by it on settlement of dispute. In support of his contention, learned Sr. Counsel relied upon the following decisions:– i) Deep Industries Ltd. v/s ACIT, Tax Appeal no.671/2007, dated 01.07.2016; ii) CIT v/s Oriental Motor Car Co. Pvt. Ltd., [1980] 124 ITR 74 (All.); iii) CIT v/s Phalton Sugar Works Ltd., [1986] 162 ITR 622; iv) CIT v/s Raj Motors, [2006] 284 ITR 489 (All.); and v) CIT v/s Swadeshi Cotton & Flower Mills Pvt. Ltd., [1964] 53 ITR 134; and vi) CIT v/s SeksariaBiswan Sugar Factory Pvt. Ltd., [1992] 195 ITR 778; and vii) ACIT v/s PanseAutocomps Pvt. Ltd., 155/Pn./2012, dated 30.05.2013.
In rejoinder, learned Departmental Representative submitted, the decisions cited by the learned Sr. Counsel for the assessee are 8 Ask Investment Managers Pvt. Ltd. factually distinguishable, hence, would not apply to the facts of the assessee’s case. He submitted,as per AS–1 notified under section 145(2) of the Act, investment advisory fee has accrued as income in the impugned assessment year. In support of his contention, learned Departmental Representative relied upon a decision of the Tribunal, Hyderabad Bench, in ITO v/s Zenith Energy Services Pvt. Ltd., dated 23rd November 2012.
We have considered rival submissions and perused the material on record. We have also applied our mind to the decisions relied upon by the learned Counsels appearing for the parties. As could be seen, in course of appeal proceedings, learned Commissioner (Appeals) found that as per Note no.16 to the Notes of Account forming part of financial statement of the assessee, though, advisory fee of GBP 14,78,484, was shown due from INVIL, however, such amount was not credited to the Profit & Loss Account. Being of the view that the aforesaid amount has accrued as income in the impugned assessment year, learned Commissioner (Appeals) brought it to tax by enhancing the income of the assessee to that extent. While deciding the appeal of the assessee against the aforesaid addition, the Tribunal, in the order referred to above, took note of the fact that there was a dispute between the assessee and INVIL with regard to the investment advisory fee and the dispute between the parties was settled vide 9 Ask Investment Managers Pvt. Ltd. agreement dated 9th April 2009, and the assessee received an amount of GBP 12,14,022. The Tribunal also took note of the fact that rupee equivalent of GBP 12,14,022 was offered by the assessee as income in the assessment year 2010–11. Looking at the aforesaid factual position, the Tribunal held that the income which can be considered at the hands of the assessee on account of investment advisory fee from INVIL cannot exceed GBP 12,14,022, of–course, subject to verification. As regards the year of taxability, the Tribunal restored the issue to the first appellate authority for adjudication after examining the facts.
It is evident, in the fresh proceedings in pursuance to the aforesaid directions of the Tribunal, learned Commissioner (Appeals) had called for necessary details from the assessee and in pursuance to the query raised by the first appellate authority, the assessee furnished documentary evidence relating to the dispute with INVIL and subsequent settlement of dispute. This fact has been clearly discussed by the first appellate authority in Page–2 of the impugned assessment order. The fact that there was a dispute between the parties with regard to the amount receivable towards investment advisory fee is further evident from the fact that though the fees receivable pertained to the assessment years 2006–07 to 2009–10 but the assessee never received such payment during these years. Therefore, in the financial statements for the aforesaid years, the assessee appended a note stating that the amount is receivable from INVIL without offering it as 10 Ask Investment Managers Pvt. Ltd. income. It is further evident that the dispute between the parties was ultimately settled on 9th April 2009 and the assessee received GBP 12,14,022, which was offered as income in the assessment year 2010– 11. It is also a fact that the Department has assessed it as income in the assessment year 2010–11. The very fact that as against the claim of GBP 14,78,484, the assessee received an amount of GBP 12,14,022, suggests that there was a dispute between the parties and there was uncertainty over the amount ultimately receivable by the assessee. Therefore, as per AS–9 income can only be recognized when there is certainty over receivability of the amount.
The Hon'ble Jurisdictional High Court in Phalton Sugar Works Ltd. (supra) has held that when the liability arises out of a contractual obligation which is disputed, such liability can be claimed as deduction in the assessment year in which the dispute is finally settled. In Seksaria Biswan Sugar Factory Pvt. Ltd. (supra), the Hon'ble Jurisdictional High Court reiterated the same view again by holding that the extra amount received by the assessee did not accrue as income until finalization of dispute pendingbefore the Court. Similar views have been expressed in the other decisions cited by the learned Sr. Counsel for the assessee including the decision of the Tribunal, Pune Bench, relied upon by learned Commissioner (Appeals). Hence, do not require elaborate discussion. In view of the ratio laid down by 11 Ask Investment Managers Pvt. Ltd. the Hon'ble Jurisdictional High Court and other High Courts as well as the Tribunal cited supra, the decision of the Tribunal, Hyderabad Bench, in Zenith Energy Services Pvt. Ltd. (supra) cited by the learned Departmental Representative, the Tribunal, Hyderabad Bench may not be of much help to the Revenue. In any case of the matter, it is an undisputed fact that the assessee has received rupee equivalent of GBP 12,14,022 in the financial year relevant to the assessment year 2010–11 and has also offered it for taxation in the said assessment year. It is also a fact on record that the said income has been assessed at the hands of the assessee in the assessment year 2010–11 vide assessment order passed under section 143(3) of the Act on 10th January 2013. Since, the income actually accruing to the assessee has been assessed in the assessment year in which it was received, it cannot be taxed again in the impugned assessment year as it will amount to double assessment of the same income. Therefore, in these circumstances, since the income has been assessed in assessment year 2010–11, there is no need to tax it in the impugned assessment year as per the decision of the Hon'ble Supreme Court in Excel Industries Ltd. (supra). Therefore, we do not find any need to interfere with the decision of learned Commissioner (Appeals) on the issue.
It is relevant to observe, in ground no.2, the Revenue has raised the issue of violation of rule–46A. In our view, the aforesaid ground 12 Ask Investment Managers Pvt. Ltd. raised by the Revenue is wholly misconceived. As could be seen, this issue was raised for the first time by learned Commissioner (Appeals) during the appeal proceeding before him. While restoring the issue back to the file of the learned Commissioner (Appeals), the Tribunal had given specific direction to verify the actual amount of investment advisory fee received by the assessee from INVIL on settlement of dispute and further, to examine the assessment year in which the said income is taxable. From the impugned order of learned Commissioner (Appeals) it is evident, she has fully complied with the directions of the Tribunal by factually verifying the amount received by the assessee from INVIL on settlement of dispute and further, on the basis of material on record she has also formed an opinion with regard to the assessment year in which the income is taxable. That being the case, there was no need to refer the issue to the Assessing Officer for verification. Therefore, in our considered opinion, there is no violation of rule–46A in the instant case. Accordingly, grounds no.1, 2 and 3 are dismissed.
In ground no.4, the Revenue has challenged the decision of learned Commissioner (Appeals) in deleting the penalty imposed under section 271(1)(c) of the Act.
Since, learned Commissioner (Appeals) held that the investment advisory fees received by the assessee is taxable in the assessment
13 Ask Investment Managers Pvt. Ltd. year 2010–11, she did not consider the said income for addition in the impugned assessment year. Consequently, the penalty imposed under section 271(1)(c) of the Act on the basis of addition of investment advisory fees in the impugned assessment year was deleted. While deciding grounds no.1, 2 and 3, of this appeal, we have concurred with the view expressed by the learned Commissioner (Appeals) that investment advisory fee received from INVIL is not taxable in the impugned assessment year. Therefore, the penalty imposed under section 271(1)(c) of the Act was rightly deleted by the learned Commissioner (Appeals). Ground no.4, is dismissed.
Grounds no.5 and 6 being general in nature do not require adjudication.
In the result, appeal is dismissed. and 3634/Mum./2017 A.Y. 2007–08 and 2008–09
On the basis of original assessment order passed by the learned Commissioner (Appeals) in the assessment year 2009–10, the Assessing Officer re–opened the assessment for the impugned assessment year to tax the investment advisory receivable from INVIL. Ultimately, the Assessing Officer completed the assessments for the impugned assessment year by bringing to tax the investment advisory fee pertaining to these two assessment years. However, learned
14 Ask Investment Managers Pvt. Ltd. Commissioner (Appeals) while deciding the appeals of the assessee held that the assessment orders are void ab initio on the ground that there is no escapement of income as the amount has already been assessed in the assessment year 2010–11. While deciding the appeal of the Revenue for the assessment year 2009–10 in the earlier part of the order, we have upheld the decision of learned Commissioner (Appeals) that the investment advisory fees received by the assessee from INVIL on settlement of dispute is assessable in the assessment year 2010–11. Therefore, the income has already been assessed in the assessment year 2010–11. That being the case, learned Commissioner (Appeals) was justified in holding that in the absence of any escapement of income, there cannot be any re–opening of assessment under section 147 of the Act. Grounds are dismissed.
In the result, appeals are dismissed.
To sum up, all the appeals are dismissed. Order pronounced in the open Court on 31.05.2019