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Income Tax Appellate Tribunal, “L” BENCH, MUMBAI
Before: SHRI SAKTIJIT DEY & SHRI N.K PRADHAN
PER BENCH
Appeal by the assessee for the assessment year 2007–08 and cross appeals for assessment year 2010–11, are against two separate orders, both dated 26th February 2015, passed by the learned Commissioner (Appeals)–55, Mumbai.
Since these appeals relates to the same assessee and involve common issues, as a matter of convenience, these appeals were heard together and are being disposed–off by way of this consolidated order.
ITA no.2856/Mum./2015 Assessee’s Appeal – A.Y. 2007–08
3 Lloyd’s Register Quality Assurance Ltd.
At the outset, we propose to deal with the grounds raised on merit, hence, the legal issue raised in ground no.1 will be dealt with, if warranted, at a later stage.
In ground no.2, the assessee has challenged the decision of the learned Commissioner (Appeals) in upholding the disallowance of licence fee and management charges under section 44C of the Income Tax Act, 1961 (for short “the Act”) by treating it as Head Office expenditure.
At the outset, the learned Authorised Representative submitted that in the interregnum learned Commissioner (Appeals) has passed an order under section 154 of the Act on 23rd November 2015, holding that licence fee is not covered under section 44C of the Act. Therefore, the dispute as regards the licence fee no more survives. The only dispute which remains to be adjudicated is with regard to disallowance of 50% of management charges under section 44C of the Act.
Grounds no.3 and 5, being ancillary and incidental to the issue raised in ground no.2, are also taken up for disposal together.
Brief facts relating to the issue are, the assessee company is the Indian Branch of a U.K. based company viz. Lloyd’s Register Quality Assurance Ltd. The assessee is engaged in the business of quality
4 Lloyd’s Register Quality Assurance Ltd. management system audit, equipment management system audit, occupational health safety assessments and training relating to such activities. For the assessment year under dispute, the assessee had filed its return of income on 14th November 2007, declaring total income of ` 1,31,62,475. Assessment in case of the assessee was completed under section 143(3) of the Act on 22nd December 2009, accepting the returned income. Subsequently, the Assessing Officer being of the opinion that management charges of ` 30,48,320, debited to the Profit & Loss account is not allowable in terms of section 40(a)(i) of the Act due to non–deduction of tax at source, re–opened the assessment under section 147 of the Act by issuing a notice under section 148 of the Act on 30th March 2012. In compliance to the said notice, the assessee requested the Assessing Officer to treat the return of income filed originally to be a return of income in response to the notice issued under section 148 of the Act. During the assessment proceedings, the Assessing Officer noticed that in the relevant previous year, assessee has paid licence charges of ` 87,19,219, and management charges of ` 30,48,821, to M/s. Lloyd’s Register, U.K., a Group concern. The Assessing Officer observed that the licence fee was paid in pursuance to licence agreement dated 16th July 2003, for use of Lloyd’s Register branch name and logo, rules and all other technical and marketing intangibles. Similarly, management charges were paid as per management services agreement dated 16th July
5 Lloyd’s Register Quality Assurance Ltd. 2003 for availing the benefit of administration, legal accounting, information and technology, group quality assurance, good human resources and marketing management and strategy. The Assessing Officer observed that though management charges were paid at cost plus a mark–up of 8%, however, no basis of determination of cost was given. It was paid on the basis of debit note raised on the last date of the accounting year. The Assessing Officer being of the view that licence charges and management charges are in the nature of head office expenses called upon the assessee to explain why the expenditure claimed should not be restricted to 5% of adjusted total income as per provisions of section 44C of the Act. Though, the assessee objected to the proposed disallowance, however, the Assessing Officer rejecting the submissions of the assessee restricted the expenditure claimed by the assessee to 5% of the adjusted total income, thereby, allowing an amount of ` 12,46,526 under both the heads resulting in disallowance of ` 1,05,21,514. Without prejudice to the aforesaid decision, the Assessing Officer also held that the management charges paid being in the nature of fees for technical services, the assessee should have deducted tax at source under section 195 of the Act. The assessee having not deducted tax at source while making such payments, the Assessing Officer held that the payment made towards management charges is otherwise not allowable under section 40(a)(i) of the Act. Being aggrieved of the
6 Lloyd’s Register Quality Assurance Ltd. disallowance made by the Assessing Officer, assessee preferred appeal before the first appellate authority.
As discussed earlier in the order, the learned Commissioner (Appeals), ultimately vide order passed under section 154 of the Act, allowed the payment made towards licence fee. However, insofar as the payment of management fee is concerned, the learned Commissioner (Appeals) allowed to the extent of 50% out of the total payment of ` 30,48,821. Being aggrieved, assessee is in appeal before the Tribunal.
The learned Authorised Representative submitted that identical dispute arose in case of assessee’s Group Company M/s. Lloyd’s Register Asia (India Branch Office) in assessment year 2005–06 and while deciding the issue in ITA no.387/Mum./2013, dated 10th June 2015, the Tribunal held that neither licence fee nor management charges come within the ambit of section 44C of the Act. He submitted, following the aforesaid decision the Tribunal in assessee’s own case for assessment year 2008–09 and 2009–10 in ITA no.389 and 390/Mum./2013 dated 7th June 2017, though, initially upheld disallowance of 50% out of management charges, however, subsequently, vide order dated 6th April 2018, in M.A. no.749–750/ Mum./2017, has fully deleted the disallowance of management charges under section 44C of the Act. The learned Authorised
7 Lloyd’s Register Quality Assurance Ltd. Representative, thus, submitted that the disallowance in the impugned assessment year should be deleted.
The learned Departmental Representative has not opposed the aforesaid submissions of the learned Authorised Representative.
We have considered rival submissions and perused materials on record. Undisputed facts are, the Assessing Officer by treating the management charges as Head Office expenses has restricted the claim of the assessee to 5% of the total adjusted income in terms of section 44C of the Act. Whereas, learned Commissioner (Appeals) relying upon the order passed by him for assessment year 2008–09 and 2010–11, has restricted the disallowance under section 44C of the Act to 50% of the amount paid by the assessee. However, as could be seen from the facts on record, while deciding identical issue in case of assessee’s Group Company M/s. Lloyd’s Register Asia (India Branch Office), supra, in assessment year 2005–06, the Tribunal has held that management charges paid to the Head Office do not come within the purview of section 44C of the Act. Following the aforesaid decision, the Tribunal in assessee’s own case for assessment year 2008–09 and 2009–10, in ITA no.389–390/Mum./2013, dated 7th June 2017, r/w M.A. no.749–750/Mum./2017, dated 6th April 2018, has deleted the disallowance made under section 44C of the Act. Respectfully following the aforesaid decision of the Co–ordinate Bench, we delete the 50%
8 Lloyd’s Register Quality Assurance Ltd. disallowance made out of management charges under section 44C of the Act. Grounds raised are allowed.
In ground no.4, the assessee has challenged the applicability of provisions of section 40(a)(i) of the Act to payment of management charges.
As discussed earlier, while disallowing management charges by invoking provisions of section 44C of the Act, the Assessing Officer also stated that the amount paid is not allowable under section 40(a)(i) of the Act, since, it is in the nature of fees for technical services and the assessee while making the payment has not deducted tax at source.
The learned Commissioner (Appeals) while dealing with the issue has dismissed the ground raised by the assessee as infructuous.
The learned Authorised Representative submitted that while deciding identical issue in assessee’s own case the Tribunal relying upon the decision of the Hon'ble Delhi High Court in CIT v/s Herbalife India International Pvt. Ltd., 384 ITR 276 (Del.), has held that provisions of section 40(a)(i) of the Act are not applicable to payment of management charges.
9 Lloyd’s Register Quality Assurance Ltd. 16. The learned Departmental Representative agreed that the issue was decided in favour of the assessee in assessment year 2008–09 and 2009–10.
Having considered rival submissions and perused material on record, it is noted that while dealing with identical dispute in assessee’s own case in assessment year 2008–09 and 2009–10 in ITA no.389–390/Mum./2013, dated 7th June 2017, the Tribunal, following the decision of the Hon'ble Delhi High Court in Herbalife India International Pvt. Ltd. (supra) has held that no disallowance under section 40(a)(i) of the Act can be made in respect of payment of management charges. There being no difference in fact, respectfully following the aforesaid decision of the Co–ordinate Bench, we allow the ground raised by the assessee.
In ground no.6, the assessee has challenged levy of interest under section 234B of the Act.
We have heard the parties. Since, the additions made are deleted, the levy of interest under section 234B of the Act being consequential would not arise. Suffice to say, while deciding identical issue in assessee’s own case for assessment year 2008–09 and 2009– 10 (supra), the Tribunal has held that no interest under section 234B
10 Lloyd’s Register Quality Assurance Ltd. of the Act is chargeable. Therefore, the ground has to be decided in favour of the assessee.
In view of our decision on the grounds raised on merit, the legal issue as raised in ground no.1, is of mere academic interest, hence, deemed unnecessary to adjudicate the same.
In the result, assessee’s appeal is partly allowed.
ITA no.2857/Mum./2015 Assessee’s Appeal – A.Y. 2010–11
Grounds no.1, 2 and 4, are on the issue of disallowance of 50% out of management charges under section 44C of the Act.
This issue is identical to the issue raised in grounds no.2, 3 and 5, by the assessee in its appeal being ITA no.2586/Mum./2015, decided by us in the earlier part of the order. Following our decision in Para–11 of the order, we delete the disallowance sustained by the learned Commissioner (Appeals) under section 44C of the Act. Grounds raised are allowed.
Ground no.3, is on the issue of applicability of section 40(a)(i) of the Act to management charges.
11 Lloyd’s Register Quality Assurance Ltd. 25. This issue is identical to the issue raised in ground no.4, by the assessee in its appeal being ITA no.2856/Mum./2015, following our decision in Para–17 of this order; we allow this ground.
Ground no.5, is on the issue of levy of interest under section 234B of the Act. Our decision in Para–19 of this order will apply mutatis mutandis to this issue.
In the result, assessee’s appeal is allowed.
ITA no.3920/Mum./2015 Revenue’s Appeal – A.Y. 2010–11
The only effective ground raised by the Revenue is against the decision of the learned Commissioner (Appeals) in allowing the payment made by the assessee towards licence fee, I.T. recharge and part of management charges.
While dealing with identical issue arising in assessee’s appeal, it was seen that in assessment year 2007–08, the learned Commissioner (Appeals) following his own order in assessment year 2008–09 and 2009–10, has allowed 100% of the licence fee and the said decision has been accepted by the Department. As regards management charges, while deciding assessee’s appeals on this issue, we have held that even 50% out of the management charges cannot be disallowed under section 44C of the Act. As regards the I.T. charge, it is seen that while deciding identical dispute in assessment year 2008–09 and
12 Lloyd’s Register Quality Assurance Ltd. 2009–10, in ITA no.519–520/Mum./2013, dated 7th June 2017, the Tribunal has upheld the decision of the learned Commissioner (Appeals) in deleting the disallowance of I.T. recharge made under section 44C of the Act. In view of the aforesaid, we do not find merit in the ground raised by the Revenue, hence, dismiss it.
In the result, Revenue’s appeal is dismissed.
To sum up, assessee’s appeal in ITA no.2856/Mum./2015 is partly allowed and ITA no.2857/Mum./2015 is allowed, whereas, Revenue’s appeal in ITA no.3920/Mum./2015 is dismissed. Order pronounced in the open Court on 15.06.2018
Sd/- Sd/- N.K. PRADHAN SAKTIJIT DEY ACCOUNTANT MEMBER JUDICIAL MEMBER
MUMBAI, DATED: 15.06.2018 Copy of the order forwarded to: (1) The Assessee; (2) The Revenue; (3) The CIT(A); (4) The CIT, Mumbai City concerned; (5) The DR, ITAT, Mumbai; (6) Guard file. True Copy By Order Pradeep J. Chowdhury Sr. Private Secretary (Sr. Private Secretary) ITAT, Mumbai