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Income Tax Appellate Tribunal, KOLKATA BENCH (A
Before: Shri P.M. Jagtap(KZ) & Shri S. S. Viswanethra Ravi, JM]
order : May 10, 2019 ORDER Per P.M. Jagtap, Vice President (KZ) This appeal filed by the assessee is directed against the order of Ld. CIT(A) – 2, Kolkata dated 11.08.2017.
Ground no. 1 raised by the assessee in this appeal is general in nature which does not require any specific adjudication.
Ground no. 2 and 3 involve a common issue relating to the disallowance of Rs. 94,83,715/- made by the AO and confirmed by the Ld. CIT(A) on account of payment of royalty.
The assessee in the present case is a non-banking financial company. The return of income for the year under consideration was filed by it on 14.09.2013 declaring a total income of Rs. 53,80,280/-. In the profit and loss account filed along with the said return, a sum of 2 M/s. Ranks Fiscals Pvt. Ltd. Assessment Year: 2013-14 Rs. 94,83,715/- was debited by the assessee-company on account of payment of royalty. During the course of assessment proceedings, the AO found that the said royalty was paid by the assessee-company to another company having common directors and although a copy of agreement as well as bill was produced by the assessee in support of its claim for the same, there was a failure on the part of the assessee to substantiate the genuinity of the royalty paid to the related party. He, therefore, disallowed the claim of the assessee for royalty payment and made an addition of Rs. 94,83,715/- to the total income of the assessee in the assessment completed u/s 143(3) vide an order dated 31.03.2016.
The disallowance made by the AO on account of royalty payment was challenged by the assessee in the appeal filed before the Ld. CIT(A). During the course of appellate proceedings before the Ld. CIT(A), the following submissions were made by the assessee in writing in support of its claim on account of payment of royalty: “The Learned A.O. has erred in disallowing the sum of Rs. 94,83,715/- on account of payment of Royalty stating that the assessee failed to substantiate the genuineness of royalty though necessary bills, copy of agreement were submitted during the course of scrutiny proceedings which he admits in his order also. Your appellant company had mode payment of Rs. 94,83,715/- towards royalty payment to Vinsa Electricals Private Limited having its registered office at 51, Ezra Street, 2nd Floor, Kolkata - 700001 in which one Trademark "POLAR" is held, your appellant company entered into "Trademark Exclusive License & User Agreement" (copy of agreement enclosed herewith Paper Book Page Nos. 60-79) with Vinsa Electricals Pvt. Ltd. whereby it had obtained exclusive right from Vinsa Electricals Pvt. Ltd., to use the Property with right to sub-license the Property including the technical knowhow, technology, business processes, manufacturing processes, expertise in the manufacture and marketing, licenses, trade dress, business slogans to Vishva Electrotech Ltd. for right to manufacture, distribute, market and sell Electrical fans, Motor Pumps,
3 M/s. Ranks Fiscals Pvt. Ltd. Assessment Year: 2013-14 Appliances, CFL & Switches in the Territory, i.e. worldwide. It was also clarified your appellant company shall not grant sub-license in respect of these products to any parry other than Vishva Electrotech Ltd. Thus it was mandatorily required that your appellant company shall gain right in the property, i.e. POLAR Trade Name which it shall sub-license to another company, Vishva Electrotech Ltd. Against the said right obtained by your appellant company, it had agreed to pay 2% of the Gross Sale Value of Vishvo Electrotech Ltd. (excluding sales tax and discounts other than cash discount) on Economy Model and 3% of the Gross Sale Value of Vishva Electrotech Ltd. (excluding sales tax and discounts other than cash discount) on all models (excluding economy models). On the said terms the agreement were entered into which defined the set of term. The details of royalty paid, copies and TDS deducted thereon were submitted during the course of hearing vide our letter dated 5th January, 2016. The Learned A.O. never raised any objection against the same and asked your appellant company to provide admissibility/genuineness of the transaction with details of TDS deducted thereon vide his letter dated 18th March,2016. Your appellant company once again submitted the details with all the documents as mentioned above on 21st March, 2016 which was duly acknowledged by the Learned A.O. in his order in which he has noted "During the course of proceedings the assessee submitted copy of an agreement bill, etc," Thus all the requisite details were duly submitted during the course of hearing and acknowledged by the Learned A.O. The addition was made on the ground that "During the previous year assessee debited Rs. 94,83,715/- towards payment of Royalty to one company having common directors," Such statement is by itself not correct which is quite evident from the records. The payment of royalty was made to Vinsa Electricals Pvt. Ltd represented by directors, Shailja Agarwal, Vinita Agarwal, Viraj Agarwal and Savitri Devi Agarwal (copy of list of directors downloaded from MCA Website enclosed – Paper Book Page No. 128) whereas Ranks Fiscals Pvt. Ltd. represented by directors, Giriraj Ratan Mothari and Ashok Goyal (copy of list of directors downloaded from MCA Website enclosed – Paper Book Page No. 129). Thus none of the directors are related among themselves and hence the words that the payment has been made to the company having common directors is by itself does not hold any truth. Further, the company does not hold any share in the company, Vinsa Electricals Pvt. Ltd. and thus in no circumstances the two companies are related to each other. As such there is no question of substantial payment of royalty since your appellant company was in no way related or substantially interested in Vinsa Electricals Pvt. Ltd. and in such situation disallowance of royalty has no legitimate standing in 4 M/s. Ranks Fiscals Pvt. Ltd. Assessment Year: 2013-14 absence of the ground of addition made by the Ld. A.O. in the circumstances, the payment of royalty to Vinsa Electricals Pvt. Ltd. for obtaining Trademark exclusive license was duly explained with supporting evidence during the course of hearing but the Ld. A.O. has stated two reasons for the disallowance one being the payment of royalty to a company having common directors and other being failure to substantiate the genuineness of such payment though he agreed to have received the copy of agreement, bills, TDS payment details and he had enough materials to verify the said transactions with the recipient company but he did not do so and instead simply disallowed the sum. As royalty has been paid by your appellant company duly supported with documents it is, business expenditure and fully allowable. Further, the Ld. A.O. in his order has disallowed the sum on the basis that your appellant failed to substantiate the genuinity of such transaction but your appellant had submitted its Audited Accounts as well as agreements and necessary bills (Paper Book Page No. 59 to127) from where it can be clearly seen that the payment of Royalty has been clearly shown in the Accounts and TDS has also been deducted on the same. Thus your appellant discharged its onus and then it was the duty of the Assessing Officer to verify the same. However the Ld. A.O. failed to do so since he failed to gather information regarding both the companies and misunderstood it to be the group company whereas the same is incorrect. Had the Ld. A.O. verified the evidences and transactions properly he could have concluded that the companies are neither related nor substantially interested in each other’s business. It can be seen that A.O. was predetermined to disallow the expenses and such illogical additions are unwarranted. The Ld. A.O. has also stated in his order that – ‘company has failed to avail those opportunities of being heard’. In this regard your appellant company would like to draw attention to the fact that the appellant company appeared before the Ld. A.O. 22.07.2015 in compliance to notice dated 08.07.2015 received on 13.07.2015 and discussed the case and the case was refixed on 30.07.2015. A request letter for adjournment was made on 30.07.2015 and the same was adjourned to 11.08.2015. On the given date the AR of the appellant company appeared but the learned A.O. was not available and as such hearing could not take place and then after no refixation of hearing was made by the Ld. A.O. However, your appellant company suo-motto submitted the details and documents on 05.01.2016 complying with the requisition made u/s 142(1). Later on a notice dated 07.03.2016 was received through E-mail to appear on 14.03.2016 and on the given date the AR of your appellant appeared but the hearing was not noted in the order sheet by the learned A.O. though he discussed the case. Again a notice dated
5 M/s. Ranks Fiscals Pvt. Ltd. Assessment Year: 2013-14 18.03.2016 was received by your appellant company to appear on 22.03.2016 asking to furnish some details and documents as well as books of account. Your appellant company submitted the requisitioned details, documents and evidences on 21.03.2016 and tried to meet the learned A.O. on 22.03.2016 along with books of account but he was so occupied that he did not take the hearing on that date also but instead issued a notice u/s 142(1) again for the matters which have already been clarified vide letter submitted on 21.03.2016 and refixed the hearing on 29.03.2016. The AR of your appellant again appeared on the given date but the hearing was not noted stating that he was too busy and the same shall be taken care of while passing the order and the AR agreed to it on good faith but the Ld. A.O. unexpectedly in his order has mentioned that the AR of the assessee never appeared nor complied with whereas AR of the appellant company tried his best to produce the books of account and discuss the case but it was the Ld. A.O. who was on short of time and could not spare time to your appellant’s case and now he is blaming AR for the same which is unjustified and against natural justice. Infact the Ld. A.O. did not provide proper opportunity to your appellant company to present its case and he did not issue any show cause notice regarding disallowance of royalty expenses incurred by your appellant company. The disallowance has been made on a baseless ground and your honour is requested to quash the same and relief your assessee from such unlawful additions.”
The Ld. CIT(A) did not find merit in the submissions made by the assessee and proceeded to confirm the disallowance made by the AO on account of payment of royalty by observing as under: “I have considered the submissions of the authorized representative of the appellant as well as the assessment order framed in the light of the materials available on record before the Assessing Officer during the assessment proceedings. The AO has mentioned that during the course of the proceeding the assessee submitted copy of an agreement, bill etc. but failed to substantiate the genuinity of such payments. In view of above, the order of the AO is upheld. This ground of appeal
is dismissed.”
7. We have heard the arguments of both the sides and also perused the relevant material available on record. As pointed out by the learned counsel for the assessee from the profit and loss account of the assessee company placed at page no. 16 and 17 of the Paper
6 M/s. Ranks Fiscals Pvt. Ltd. Assessment Year: 2013-14 Book, income on account of royalty of the same amount was received by the assessee and the same was duly credited in the profit and loss account. He has submitted that the entire amount of royalty received by the assessee was paid over and the same was also debited to the profit and loss account. He has invited our attention to the copy of the relevant agreement for exclusive license and use of trademark entered into with Vinsa Electricals Pvt. Ltd. placed at page no. 52 to 65 of the Paper Book to point out that the said license was obtained by the assessee and payment for the same amounting to Rs. 95,83,715/- was paid by Vinsa Electricals Pvt. Ltd. for the year under consideration as per clause 6 of the agreement. He has also invited our attention to the copy of another agreement for sub-lease and use of trademark entered into by the assessee-company with Vishva Electrotech Ltd. placed at page no. 71 of the Paper Book. He has contended that the assessee-company as per the said agreement had sub-licensed the trademark obtained from Vinsa Electricals Pvt. Ltd. with the said company signing the sub-license agreement as confirming party and the same amount of royalty was charged to M/s. Vishva Electrotech Ltd. for sub-licensing of the trademark. He has contended that there was thus no reason for making any disallowance on account of payment of royalty made by the assessee-company which in fact was entirely recovered by the assessee-company by sub- licensing the trademark to another group company. The learned DR, on the other hand, has submitted that these submissions now being made by the learned counsel for the assessee in support of the assessee’s case on the issue under consideration were never made either before the AO or before the Ld. CIT(A). He has contended that 7 M/s. Ranks Fiscals Pvt. Ltd. Assessment Year: 2013-14 the AO, therefore, should be given an opportunity to verify this new stand taken by the assessee. We find merit in this contention of the learned DR and since the learned counsel for the assessee has also not raised any objection for sending the matter back to the AO for verification, we set aside the impugned order of the Ld. CIT(A) on this issue and restore the matter to the file of the AO for deciding the same afresh after examining/verifying the claim made by the assessee for the first time before the Tribunal. Needless to observe that the AO shall afford proper and sufficient opportunity of being heard to the assessee before deciding this issue afresh. Ground no. 2 and 3 of the assessee’s appeal are treated as allowed for statistical purpose.
At the time of hearing before the Tribunal, the learned counsel for the assessee has not pressed ground no. 4 relating to the disallowance of Rs. 3,85,494/- made by the AO and confirmed by the Ld. CIT(A) on account of other expenses. Ground no. 4 of the assessee’s appeal is accordingly dismissed as not pressed.
In the result, the appeal of the assessee is treated as partly allowed for statistical purpose. Order Pronounced in the Open Court on 10th May, 2019.