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Income Tax Appellate Tribunal, “H” BENCH, MUMBAI
Before: SHRI SHAMIM YAHYA, AM & SHRI RAVISH SOOD, JM
O R D E R Per Shamim Yahya, A. M.: This appeal by the Revenue is directed against the order of the Dispute Resolution Panel-1, Mumbai dated 30.10.2013 and pertains to assessment year 2009-10.
The grounds of appeal read as under: 1. "Whether on the facts and circumstances of the case and in law, the Ld. Member of DRP-I, Mumbai erred in deleting the disallowance of Rs.1,90,166/- (50% of 3,80,333/-) with respect to film preview expense, while the assessee failed to discharge the onus of proving the genuineness of his claim. 2. “Whether on the facts and circumstances of the case and in law, the Ld. Member of DRP-I, Mumbai erred in deleting the addition of Rs.9,70,10.264/-with respect to cessation of liability by way of waiver of loan taken from Yes Bank Ltd., while it is evident from records that the assessee has received a benefit in the year under consideration by way of waiver of loan taken from Yes Bank Ltd.
M/s. K. Sera Sera Ltd. 3. "Whether on the facts and circumstances of the case and in law, the Ld. Member of DRP-I, Mumbai erred in deleting the disallowance of Rs.2,09,67,603/-, with respect to sundry creditors, while the assessee failed to discharge the onus of proving the genuineness of his claim and subsequently explained the same , without cogent evidence, as an advance received.
Apropos ground no. 1 - deletion of addition of Rs.1,90,166/-:
The brief facts are that the assessee company is in the business of entertainment through in-house production of motion pictures, television serials and distribution of films produced by third parties. During the relevant year, it claimed to have incurred Rs.3,80,333/- towards film preview expenses. The Assessing Officer has observed in his order that inspite of the opportunity given to the assessee to furnish proper evidence in support of the expenses claimed, it could not produce either vouchers or the names of the persons to whom such payments were made. "In view of this, the Assessing Officer held that the expenses were net incurred for the purpose of business and disallowed the some.
Subsequently during the remand proceedings the assessee produced some of the vouchers and bills. However, complete details were not furnished and a large portion of the expenditure was in cash. Considering the above, the Dispute Resolution Panel directed that 50% of the addition should be sustained and rest deleted. The dispute resolution panel held as under:
4.4 On perusal of the facts of the case and additional evidences on record, it is seen that most of the expenses have been incurred in cash. Even the sample vouchers produced before us are mostly self vouchers. Some of the 3rd party vouchers produced before us, do not have the name of the assessee on the vouchers. However some of the vouchers produced before us that support the assessee's claim of expenditure. Moreover considering the nature of the business of the assessee, the Panel is of the view that some expenses of this nature would
M/s. K. Sera Sera Ltd. definitely be required to be incurred by the assessee. accordingly, the A.O. is directed to allow 50% of the expenditure claimed by the assessee under this head.
Against this direction, the Revenue is in appeal before us.
We have heard both the counsel and perused the records. We find that the disallowance in this case has been made by the assessing officer as initially no vouchers were produced. However subsequently in remand proceedings the assessee produced some of the vouchers and bills. Considering these facts, the dispute resolution panel directed for deletion of 50% of the expenditure. In our considered opinion, the order of the dispute resolution panel is a reasonable one and doesn't need any interference on our part. Hence, the Revenue's ground in this regard stands dismissed.
Apropos ground no. 2 – deletion of addition of Rs.9,70,10,264/-:
Brief facts of the case are that the Assessing Officer observed that the assessee had taken a loan of Rs 10,40,74,596/- from YES Bank. As per the Assessing Officer, vide agreement dated 22.9.2009, YES Sank had waived off the loan amount to the extent of Rs.8,65,00,000/- in lieu of issue of warrants by the assessee. The total waiver including principal and interest was of Rs.9,70,10,264/-. The Assessing Officer relying on the decision of Hon’ble Bombay High Court in the case of Solid Container (308 ITR 147) treated the amount of Rs.9,70,10,264/- as the assessee's income and taxed accordingly.
On this issue also the dispute resolution panel obtained remand report from the assessing officer. The assessee submitted following chart of outstanding's and its repayment and reconciliations:
M/s. K. Sera Sera Ltd. Working Capital Loan Principal Principal Total Principal loan amount 84,500,000 5,000,000 89,500,000 Interest for April, 2008 937,603 55,479 993,082 Interest for May, 2008 968,856 57,329 1,026,185 Interest for June, 2008 1,075,349 56,507 1,131,856 Interest for July, 2008 1,184,158 61,575 1,245,733 Total as on 31.7.2008 88,665,966 5,230,890 93,896,856 Cash credit account balance as on 31.7.2008 10,177,740 Total outstanding as on 31.7.2008 (As per 104,074,596 annexure to letter dated August 1, 2008 of Yes Bank) Add: Restructuring Fees 12,435,668 Total recovery by bank as under: 116,510,264 Settled by Convertible warrants issued on 18.10.2008 86,500,000 Bank payment on 22.09.2009 19,500,000 Sale proceeds of shares 10,510,264 Total amount received by Bank 116,510,264
Reconciliation with books of account Balance as per books of accounts as on 31.07.2008 (excluding interest 99,880,169 entry) Add: Interest as above upto 31st July, 2008 4,396,856 Balance as per books as on 31.07.2008 104,2777,025 Add: interest for August, 2008 & September, 2008 2,775,427 Total payable 107,052,452 Less: Share warrants issued 86,500,000 Balance 20,552,452 Amount paid 19,500,000 Amount written back 1,052,452 Restructuring fees not recorded 12,435,668 Sale proceeds of Mantra Trading Not recorded 10,510,264 1,925,404
Considering the submissions and the facts the dispute resolution panel held as under:
14.6 On perusal of the above and the accounts of the assessee, it is clear that out of the total loan outstanding, a sum of Rs.8.65 crore has been converted to share warrants and has been reflected in the balance sheet. Thus, this amount cannot be M/s. K. Sera Sera Ltd. considered as any cessation of liability which could be taxed under section 41(1). In fact, it is not waiver of any liability since only the form of liability has changed. The AG is accordingly directed to delete this proposed addition. 14.7 As regards sum of Rs.l,05,10,264/-proposed to be added by the AO, ii is clear from the settlement agreement dated 22 September 2009 that this was adjusted by the bank only in the next assessment year. In fact, as admitted by the assessee, entry in the books of account in this regard was not recorded during this year or even till now. However the fact remains that the benefit, if any, which accrued to the assessee would be only in the next assessment year that is when the final settlement agreement was.entered into between the assessee and Yes bank vide agreement dated 22 September 2009. The Assessing Officer is accordingly directed to delete this proposed addition.
14.8 As regards the claim of restructuring fees of Rs. 1,24,35,668/-raised in ground number 15, although the proposal for a restructuring of the outstanding loan was dated 26th August 2008, the final settlement agreement was entered into only on 22nd of September 2009, on which date the various recoveries as specified in the agreement were made by the bank. Accordingly, the crystallisation of liability on this account if any would only be in the next assessment year that is when the final settlement agreement was entered into between the assessee and yes bank vide agreement dated 22 September 2009. Moreover, the assessee has not passed any entries in its books of account for these expenses in this assessment year or even subsequently. The claim of the assessee on this account is accordingly rejected.
Against the above order, the Revenue is in appeal before us.
We have heard both the counsel and perused the records. We find that in this case there has been restructuring of the outstanding working capital loan including the interest by agreement dated 22.09.2009. Firstly, we find that the details mentioned above clearly bring out that as regards a sum of Rs.8.65 crores of the outstanding, the same was not waived off but was converted into share warrants. Hence, we find that the dispute resolution panel is correct that to this extent there is no cessation of liability and hence there is no question of any addition u/s.41(1) in this regard. Further the facts above show that the settlement was entered into on 22.09.2009. Hence, the Dispute Resolution Panel
M/s. K. Sera Sera Ltd. is correct that as regards the writing back of the amount of Rs.1,052,452/- it was adjusted by the bank in subsequent assessment year. The dispute resolution panel has also given a finding that necessary entries in the books of account of the assessee were also not recorded during the present year. Hence the dispute resolution panel correctly directed that the benefit, if any, accruing in this regard have to be considered in the next assessment year. We do not find any infirmity in the direction of the dispute resolution panel in this regard.
Hence, we find that in view of the detailed factual findings above with which we duly concur, we do not find any infirmity in the direction of the learned dispute resolution panel, hence we uphold the same.
Apropos ground no. 3 - deletion of disallowance of Rs.2,09,67,603/-:
This ground is linked to the addition of Rs.5 crore, also from the same party. The deletion of which has not been challenged by the Revenue.
The brief facts on issue read as under:
The Assessing Officer observed that the assessee had taken a loan of Rs 5 Cr from M/s Vintage FZE India Limited. The Assessing Officer called for the loan confirmation from the concerned party u/s 133(6) but there was no response. Thereafter, the Assessing Officer asked the assessee to prove the identity and creditworthiness of the creditor, and the genuineness of the transaction. The assessee could submit only a photocopy of the confirmation without bearing any PAN or address, alongwith acknowledgment of Income Tax Return of M/'s. Vintage FZE India Pvt. Ltd. in ITR- V for assessment year 2009-10.
M/s. K. Sera Sera Ltd. The AO held that since the assessee had failed to discharge its onus regarding the identity and creditworthiness of the creditor, and the genuineness of the transaction, the amount of loan of Rs 5 Cr was nothing but cash credit u/s 68. Similarly the Assessing Officer observed that an amount of Rs 2,09,67,603/- was standing in the name of M/s Vintage FZE India Pvt Ltd. He also observed that the identity, and creditworthiness of the said party had not been established by the assessee. The assessee contended that the said amount was not on a/c of expenses but was an advance from the said party. However, no agreement or confirmation was furnished by the assessee to support its contention. On the basis of the above position, the Assessing Officer treated the amount as the assessee's income and taxed accordingly.
On this issue also the dispute resolution panel obtained remand report. In the remand report, on the issue of Rs.2,09,67,603/-, the Assessing Officer submitted as under:
Sundry advances: The assessee has stated that this account is basically related to expenses incurred on behalf of Vintage FZE India Pvt.Ltd. for the production of movie named EK-The Power of One. Although the movie was produced by assessed however, all the rights were sold to Vintage FZE (I) Pvt. Ltd. During the year 2008-09 assessee incurred Rs.349 lakhs and collected Rs.140 lakhs on behalf of Vintage FZE India Pvt.Ltd. The balance of Rs.2,09,67,603/-subsequently carried over to next assessment year. As the transaction of CK-The Power of One could not be completed in A.Y.2009-10 these accounts were not settled and carried to the next year. The assessee has filed a copy of ledger account. In this regard it is submitted that the assessee has still not been able to explain that why the transactions with a same party i.e. Vintage FZE India Pvt.Ltd. has 'not been finalized while preparing the final accounts . It clearly indicates that there has been some adjustments in the accounts. The assessee is showing debt from this party in the balance sheet and showing advances given to it on the other hand. This question also still stands that these explanation ( not the evidences ) were also not M/s. K. Sera Sera Ltd. adduced before the Assessing Officer during the assessment proceedings. Hence, it is requested that the addition should be sustained."
Considering the above, the Dispute Resolution Panel held as under:
15.7 We have considered the facts of the case, additional evidences furnished by the assessee, the remand report of the AO and the detailed reply of the assessee in this regard. As regards the loan of Rs. 5 crore, it is seen that the assessee has filed the loan confirmation alongwith the copy of the bank account and the income tax acknowledgement form of the party. Thus the identity, capacity and the genuineness, of the transaction stands established. Even in the remand report, that the AO has not objected to the above. Additionally, the loan was taken in an earlier year. Accordingly the proposed addition on this account is deleted. 15.8 As regards the sum of Rs.2,09,67,603/-, it is seen that it represents debit balance recoverable by the assessee from this party, although it was grouped under the head sundry creditors. Thus it is clear that this amount has not been debited to the profit and loss account. In the absence of any further facts, the fact that the assessee has shown two different accounts, one of debit and other of credit, does not lead to the conclusion that there has been some adjustments in the accounts as contended by the AO. Accordingly, the proposed addition on this account is deleted.
Against the above order, the Revenue is in appeal before us.
We have heard both the counsel and perused the records. We find that the assessee has received a loan of Rs.5 crores from Vintage FZE (I) Pvt. Ltd. Initially there was lack of details however subsequently the necessary details were submitted and the assessing officer did not object of the same in the remand report. Hence, the dispute resolution panel deleted the addition of Rs.5 crore, against which the revenue has not filed appeal.
As regards the deletion of sum of Rs.2,09,67,603/-, we find that assessee has explained this that this is actually debit wrongly grouped. The Dispute Resolution Panel has given a finding that it is actually debit balance grouped under the head sundry creditors. The Assessing Officer in the remand proceeding has accepted it to be a debit
M/s. K. Sera Sera Ltd. balance. The debit balance can by no stretch of imagination be added as unexplained credit. Hence, we find that there is no infirmity in the findings of the Dispute Resolution Panel. Hence, we uphold the same.
In the result, this appeal of the Revenue is dismissed.
Order pronounced in the open court on 13.06.2018