KAIZEN GLOBAL SERVICES INDIA P.LTD,MUMBAI vs. DCIT 10(3), MUMBAI

आदेश / O R D E R

PER RAVISH SOOD, JUDICIAL MEMBER:

P a g e | M/s Kaizen Global Services India Pvt. Ltd. Vs. Deputy Commissioner of Income Tax “1. The Ld. CIT(A) erred in confirming the disallowance of the transport charges @ 50% i.e. Rs.25,51,939/-.

3. The Ld. CIT(A) erred in confirming the disallowance of claim Rs.93,092/towards payment of property tax.

4. The Ld. CIT(A) erred in confirming the disallowance of the claim of loss of Rs.23,13,565/-.

5. The Ld. CIT(A) erred in confirming the additions of Rs.25,77,902/- on account of unexplained cash credit and Rs. 52,36,291/- on account of share application money.

8. The appellant craves leave to add further grounds or to amend or alter the existing grounds of appeal

on or before the date of hearing.

2. Briefly stated, the facts of the case are that the assessee company which is engaged in the business of BPO and recruitment agency had filed its return of income for A.Y 2010-11 on 17.09.2010, declaring loss of Rs.1,30,15,365/-. The case of the assessee was selected for scrutiny assessment under Sec. 143(2) of the Act. The assessee company had during the year under consideration received commission income of Rs. 4,84,70,112/- apart from other income of Rs.6,42,208. The commission income was received by the assessee from its associate enterprise (AE), viz. M/s Kaizen Technologies Inc, USA. The assessee had reflected a net loss of Rs.23,13,565/- in its Profit & loss A/c for the year under consideration.

Sr. No. Services Remuneration 1. Collection 30% of collection 2. Sales Marketing $15 per sale 3. Medical billing Fixed per employee 4. Recruitment Fixed per employee However, it was noticed by the A.O that no details in respect of the basis of the remuneration for the services was furnished by the assessee. On a query by the A.O as to the basis as per which the invoice for commission was raised, it was simply submitted by the assessee that it was the AE which determined the quantum of revenue and the assessee would accordingly book its income. Still further, the assessee on being called upon to place on record the proof of actual revenue booked by the AE and as to how the same was shared with the assessee, no formidable evidence as regards the nature of services rendered and on what basis the billing was done was submitted. The A.O not impressed by the vague and unsubstantiated submissions of the assessee was thus not persuaded to subscribe to the same.

Sr. No. Particulars Amount 1. Transportation Expenses Rs.25,51,939/- (50% of total expenses disallowed) 2. Professional Development Expenditure Rs.49,12,803/- 3. Property Tax Rs. 93,092/- 4. Disallowance of claim of Loss Rs.23,13,565/- (as per the return of income) 5. Unexplained credit in respect of unsecured loan Rs.25,77,902/- 6. Unexplained share application money Rs.52,36,291/- On the basis of his aforesaid deliberations the A.O assessed the income of the assessee at Rs.41,70,230/-.

6. The assessee being aggrieved with the order of the CIT(A) had carried the matter in appeal before us. The ld. Authorized Representative (for short ‘A.R’) for the assessee took us through the orders of the lower authorities. The ld. A.R taking support of the ‘Paper book’ filed by the assessee (for short ‘APB’) and the synopsis placed on record, submitted that both the lower authorities had erred in failing to appreciate the facts of the case in the right perspective and had wrongly made/sustained the additions/disallowances in the hands of the assessee. The ld. A.R in context of the various additions/disallowances made by the A.O, took us through the relevant pages of the ‘APB’, as well as took support of various judicial pronouncements to drive home his contention that no addition/disallowance was liable to be made in the hands of the assessee. Per contra, the ld. Departmental Representative (for short ‘D.R’) relied on the orders of the lower authorities. It was submitted by the ld. D.R that as the assessee had failed to substantiate the genuineness and veracity of the aforesaid expenses on the basis of any material, thus the respective additions/disallowances were rightly made by the A.O and thereafter sustained by the CIT(A).

P a g e | M/s Kaizen Global Services India Pvt. Ltd. Vs. Deputy Commissioner of Income Tax 7. We have heard the authorized representatives for both the parties, perused the orders of the lower authorities and the material available on record. We shall first advert to the maintainability of the disallowance of Rs.25,51,939/- made in the hands of the assessee in respect of the transport charges. We find that the assessee had booked an amount of Rs.51,03,879/- under the head transport expenses in its profit and loss account for the year under consideration. On being called upon by the A.O to substantiate the genuineness and veracity of the said expenses, the assessee placed on record the name and address of the transporter, viz. (i).Masoom Travels, Shop No. 1, Ram Society, Datta Mandir Road, Bhandup (W), Mumbai, as well as the copies of sample bills raised on the assessee, a perusal of which revealed that a payment of Rs.4,500/- per person per month was made by the assessee to the said transporter. It was noticed by the A.O that though the assessee had placed on record a chart containing names of several persons along with the transport bills, but the fact as to whether the said persons were the employees on the pay rolls of the assessee company was not clarified. On the basis of the aforesaid facts, the A.O not being satisfied with the genuineness and veracity of the aforesaid claim of expenses so raised by the assessee and keeping in view the fact that the amount of expenses claimed were substantially exorbitant, thus disallowed 50% of the said expenses and made an addition of Rs.25,51,939/- in the hands of the assessee. The ld. A.R had averred before us that as the transport invoices were produced before the A.O and were duly verified by him, thus the disallowance made by him on an adhoc basis was not sustainable and was liable to the vacated. We have perused the orders of the lower authorities and find that the major reasons that had weighed in the mind of the A.O while carrying out an adhoc disallowance of transport expenses were threefold, viz. (i) the assessee had failed to prove as to whether the persons in respect of whom the transport expenses were claimed to have been incurred were its employees on the pay rolls; (ii) that it was beyond comprehension as to how a flat rate of Rs.4,500/- could have been charged by the transporter in respect of all the employees, irrespective of the distance covered by each employee; and (iii) that no evidence as P a g e | M/s Kaizen Global Services India Pvt. Ltd. Vs. Deputy Commissioner of Income Tax regards the starting point and the destination of travel pertaining to the respective employees had been placed on record. We find that as averred by the ld. A.R, the assessee in order to substantiate its claim of transport expenses of Rs. 51,03,879/- had placed on record the copy of the transport expense account appearing in its books of account (Page 13 of APB), copy of the ledger accounts of the transporters, viz. Masoom Travels, Om Transport Services and Trinity Travels, as well as the complete list of its employees as was discernible from the ‘Pay sheets’ for the year under consideration (Page 35-139 of APB). We further find that transport expenses of Rs. 53,35,838/- claimed by the assessee in the immediately preceding year, viz. A.Y 2009-10 had not been dislodged by the department. Still further, as claimed by the ld. A.R before us, transport expenses in the same range had been accepted by the revenue in the respective scrutiny assessments framed under Sec. 143(3) in the case of the assessee for AY. 2007-08 (Page 286-289 of APB) and AY. 2012-13 (Page 295-296 of APB). The ld. A.R had further in order to support the authenticity of the transport expenses, had taken support of the fact that the payments made to the aforementioned transporters were made vide account payee cheques (Page 14- 16 of APB). We find from a perusal of the records that the assessee had in the course of the assessment proceedings placed on record sample bills issued by the major transporter, viz. M/s Masoom Tranvels, wherein as claimed by the assessee the list of the employees who had travelled was enclosed as an annexure to the said bills. As stands gathered from the records, the assessee explaining the reason as to why the documentary evidence to prove that the persons in respect of whom the transport expenses had been incurred were on the pay rolls of the assessee company was not filed with the A.O, submitted that as the A.O had not called upon the assessee to furnish the same, thus for the said reason the same was not placed on record.

P a g e | M/s Kaizen Global Services India Pvt. Ltd. Vs. Deputy Commissioner of Income Tax documentary evidence, however the same in no way substantiates his claim to the hilt. We are of the considered view that though the assessee had furnished with the A.O the complete details of his employees by placing on record the copies of the ‘Pay sheets’ for the period 01.04.2009 to 31.03.2010, but merely placing on record the said material would not suffice for establishing that the expense booked under the head transport expenses were incurred in respect of its employees. Rather, it was obligatory on the part of the assessee to have proved to the satisfaction of the A.O that the transport expenses incurred were in respect of the employees on his pay rolls, by correlating the details of such persons mentioned in the annexure forming part of the bills raised by the transporter on the assessee, with the names of the said persons figuring in its pay rolls. However, we are not persuaded to subscribe to the observations of the lower authorities that the claim of the assessee was also not to be accepted, for the reason that it was beyond comprehension that the transporter would have charged a fixed flat rate of Rs.4,500/- per person per month, irrespective of the distances covered by each employee. We are of the considered view that an expense incurred by an assessee wholly and exclusively for its business on the basis of an arrangement entered into with a third party, cannot be dislodged by the revenue unless the same is found to be false or backed by an intent to suppress the true profits. We are of a strong conviction that in case the lower authorities had any doubts as regards the genuineness of the aforesaid arrangement, than necessary verifications could have been made from the transporter to dispel such doubts. Still further, we also do not find any force in the observations of the lower authorities that the genuineness of the claim of such expenses were to be doubted, for the reason that no evidence as regards the starting point and the final destination of the employees who had undertaken such travelling was placed on record. We are further of the view that the claim of the ld. A.R that transport expenses to the said extent had consistently been allowed by the revenue while framing the assessments in the assesses own case for the preceding and the succeeding years, also cannot be lost sight of while drawing of inferences as regards the maintainability of the claim of the assessee in respect of the P a g e | M/s Kaizen Global Services India Pvt. Ltd. Vs. Deputy Commissioner of Income Tax veracity of such expenses during the year under consideration. Be that as it may, we are of the considered view that now when the assessee had placed on record the complete details of the persons in respect of whom bills had been raised by the respective transporters, thus in all fairness the matter requires to be restored to the file of the A.O for verifying that as to whether the said respective persons in respect of whom bills were raised by the transporter were the employees of the assessee as per its pay rolls or not. Before parting, we may herein clarify that the A.O shall during the course of the set aside proceedings be at a liberty to make any further verifications as he deems fit in order to satisfy himself about the authenticity of the claim of the aforesaid transport expenses so raised by the assessee. We thus, restore the issue to the file of the A.O for fresh adjudication in terms of our aforesaid observations. The Ground of appeal

No. 1 is allowed for statistical purposes.

9. We shall now take up the disallowance of Rs. 44,12,809/- made in respect of professional development allowance by the A.O and thereafter upheld by the CIT(A). We find that the assessee on being queried by the A.O, as regards the nature of the aforesaid expenses and to place on record documentary evidence which would prove both the genuineness of the said expenses and the necessity of incurring the same for its business, merely submitted that the same were incurred for training of its employees. The perusal of the records reveals that it was simply mentioned by the assessee that payments were made to M/s Pioneer Callnet, A-Connection Management Services, and Sai Management consultant, to train and educate the employees. Further, certain expenses were also found to have been incurred under the head ‘consultancy manpower charges’ and ‘recruitment charges’. We find that the assessee in order to justify the aforesaid expenses had submitted before the CIT(A) that as it was engaged in the business of BPO & Recruitment Agency and hence dealing with foreigners, therefore, incurring of professional development expenses was indispensably required to develop the personality and professional approach of the employees i.e their speaking skill, negotiation and conversation with P a g e | M/s Kaizen Global Services India Pvt. Ltd. Vs. Deputy Commissioner of Income Tax the foreign clients. We further find that it was the claim of the assessee that consultancy manpower charges of Rs.2,78,200/- and recruitment charges of Rs. 1,99,845/- did not form part of the professional development expense of Rs.44,12,803/-. Perusal of the orders of the lower authorities, reveal that the assessee had placed on record the copy of the professional development expenses account along with the bifurcated details of the same. We find that the lower authorities had declined to accept the aforesaid claim of the assessee, for the reason that the same was not supported by any documentary evidence which would substantiate the incurring of the said expenses, nature/module of the training course conducted along with its duration and the costing per course per employee. Still further, the A.O while making the aforesaid disallowance also held a strong conviction that as the training of the junior employees was carried out by the senior employees, thus the training expenses already stood included in the salaries paid by the assessee company. In this regard, it would also be relevant to observe that the fact that the assessee itself was unaware of its revenue generation had also weighed in the mind of the lower authorities, who thus held a conviction that as there was no need of incurring of any extra cost by the assessee on the employees, thus the aforesaid expenses could safely be held to have been booked by the assessee only to boost the expenses and suppress the taxable profits.

No. 2 is allowed for statistical purposes.

11. We shall now advert to the disallowance of property tax of Rs.93,092/- debited by the assessee in its profit and loss account for the year under consideration. We find from a perusal of the orders of the lower authorities, that the assessee had claimed to have paid property tax in respect of premises viz. Mauresh Chambers, Bellapur, Navi Mumbai, which wasjointly owned by the directors of the company. The assessee in its reply justifying its claim of property tax as an expense, had submitted that the assessee company did not have its own office premises and was running its business from the aforementioned premises owned by the directors of the company. It P a g e | M/s Kaizen Global Services India Pvt. Ltd. Vs. Deputy Commissioner of Income Tax was submitted by the assessee that as the office premises were available in Mumbai at a very high rent, hence the assessee company in order to facilitate cost cutting had decided to carry on its business from the premises jointly owned by the directors, for which no rent was paid to them. The assessee in the backdrop of the aforesaid facts submitted that as it was enjoying the possession of the property as its office without paying any rent, hence it had decided to pay the small amount of property tax of Rs.93,092/- pertaining to the said property to the municipal corporation. It was thus the claim of the assessee that as the aforesaid expense towards property tax had been incurred wholly and exclusively for the purpose of its business, thus the same was clearly allowable as an expense in its hands. We find that the lower authorities observing that the assessee had failed to place on record any evidence which could prove that the business operations of the assessee were carried out from the aforesaid premises, viz. Mayuresh Chamber, Bellapur, Navi Mumbai, had thus disallowed the same as an expense in the hands of the assessee. We have deliberated at length on the issue under consideration and are of the considered view that now when it is the claim of the assessee that it was running its business from the aforementioned premises, viz. Mayuresh Chamber, Bellapur, Navi Mumbai and had not taken any other premises on rent, therefore, the said claim of the assessee could not have been summarily rejected. We are of the considered view that in all fairness the claim of the assessee that it had paid the property tax of Rs.93,092/- in respect of the aforementioned premises which was jointly owned by the directors of the assessee company and was occupied by the assessee as its office, requires to be verified. We thus, in all fairness restore the issue to the file of the A.O for making necessary verifications as regards the aforesaid claim of the assessee. In case if the claim of the assessee is found to be in order, then the A.O is directed to allow the amount of Rs.93,092/- paid by the assessee as property tax as an expenditure in the hands of the assessee. The Ground of appeal No. 3 is allowed for statistical purposes.

P a g e | M/s Kaizen Global Services India Pvt. Ltd. Vs. Deputy Commissioner of Income Tax 12. We shall now advert to the disallowance of the claim of loss of Rs.23,13,565/- which had been claimed by the assessee in its profit and loss account for the year under consideration. Before proceeding further, we may herein clarify that though the profit and loss account of the assessee revealed a loss of Rs. 23,13,565/-, however on the basis of certain adjustments the assessee had increased the same to a loss of Rs. 1,30,15,365/- in its computation of income. We find that the lower authorities had observed that as against the entire commission of Rs.4.84 crores received by the assessee from its AE, the claim of direct/financial expenditure of Rs.4.66 crores was claimed by the assessee. It was observed by the lower authorities that the assessee had claimed direct expenses of almost 85% of its commission income. The A.O after deliberating on the modus operandi adopted by the assessee for recognizing its revenue, observed that the same was absolutely dependant on what was remitted to it by its AE. The A.O held a strong conviction that the loss claimed by the assessee was due to under charging or fixing the price for the service rendered at a value lower than the actual cost incurred. Since the assessee had failed to explain the pricing of the services rendered, which as per the A.O were fixed below the cost of service, he thus refused to allow the claim of gross loss of Rs.23,13,565/- so raised by the assessee. We find that the assessee had submitted before the lower authorities that the remuneration being charged for the services rendered by it was clearly discernible by the A.O from the agreement dated 28.11.2006 between the assessee and its AE, as under :

Sr. No. Services Remuneration 1. Collection 30% of collection 2. Sales Marketing $15 per sale 3. Medical billing Fixed per employee 4. Recruitment Fixed per employee In the backdrop of the aforesaid facts it was claimed by the assessee that its AE would enter into an agreement with it clients in USA on the same terms and conditions, as a result whereof the sale price between the assessee and its AE remained the same as was there between the AE and its clients. On P a g e | M/s Kaizen Global Services India Pvt. Ltd. Vs. Deputy Commissioner of Income Tax the basis of the aforesaid facts, it was claimed by the assessee that the full sale value received by its AE from its client was transferred to the assessee. The assessee submitted before the lower authorities that the expenses which had been incurred were directly attributable for carrying out the activities in India, viz. communication expenses, employee expenses, overhead expenses, depreciation and financial charges. On the basis of the aforesaid submissions, it was the claim of the assessee that the loss of Rs.23,13,565/- incurred by it during the year was well in order and no adverse inferences as regards the same was liable to be drawn. The assessee rebutting the observations of the lower authorities that the loss was a result of manipulations by the assessee i.e suppression of the pricing of the services rendered, was absolutely incorrect, submitted that the services rendered by the assessee were in conformity with the prevailing rates for rendering of such services in the foreign market. Still further, it was submitted by the assessee that as the expenses incurred were also in tune with those in the local market, thus the allegations that the assessee had inflated the same did not hold the ground. It was thus the claim of the assessee before the lower authorities that the whimsical rejection of the business loss claimed by the assessee without placing on record any documentary evidence which could irrefutably prove that the assessee had either suppressed the pricing of its services or inflated the expenses incurred, could not be sustained and was liable to be rejected.

No. 4 is allowed for statistical purposes.

15. We shall now take up the addition of Rs.25,77,902/- made by the AO and thereafter sustained by the CIT(A). The genesis of the issue under consideration is that the balance sheet of the assessee revealed that it had taken a loan of Rs.25,77,902/- during the year under consideration. During the course of the assessment proceedings, it was submitted by the assessee that the aforesaid unsecured loan was taken from the directors of its sister concern, viz. M/s Medilux Laboratory. It was observed by the CIT(A) that though the assessee had placed on record a confirmation letter along with a copy of the ledger account and the copy of the acknowledgment of the return of income of the party from whom the unsecured loan was received, and though by so doing had taken pains to prove the identity of the lenders, however it had failed to substantiate the other two ingredients, viz. creditworthiness and the genuineness of the transactions under consideration. The CIT(A) was thus of the view that the assessee had failed to discharge the initial burden as was cast upon him to prove the authenticity of the unsecured loan which was claimed to have been received during the year. On the basis of the aforesaid deliberations, the CIT(A) confirmed the addition of Rs.25,77,902/- in respect of the increase in the P a g e | M/s Kaizen Global Services India Pvt. Ltd. Vs. Deputy Commissioner of Income Tax unsecured loans claimed by the assessee to have been received during the year under consideration.

15. We have deliberated at length on the issue under consideration before us in the backdrop of the material available on record. The ld. A.R in order to support the genuineness of the loan transaction submitted that the same was received through banking channel. It was further submitted by the ld. A.R, that during the course of the proceedings before the lower authorities it had placed on record sufficient material which proved the creditworthiness of the lenders, viz. (i) confirmation of the lenders; (ii) balance sheet of the director which revealed availability of sufficient funds with him out of which the loan had been advanced to the assessee; (iii) copy of the bank statement; and (iv). copy of the acknowledgment of the return of income along with the computation of income of the director, viz. M/s Deepak Kevalramani for A.Y 2009-10. It was thus the contention of the ld. A.R that now when the creditworthiness of the lender stood proved and the loan transaction had been received through banking channels, hence no adverse inferences as regards the genuineness of the loan transaction was liable to be drawn.

16. We have given a thoughtful consideration to the issue before us and are of the considered view that in the backdrop of the contention raised by the ld. A.R, and also the documentary evidence in support of his said claim, to which our attention was drawn, the genuineness of the loan transaction could not have been summarily rejected. However, we are also not oblivious of the fact that the assessee had neither before the lower authorities nor before us had clearly established the ‘nature’ and ‘source’ of the transaction, by specifically drawing our attention to the documents in support of the same. We are however of the considered view that keeping in view the documentary evidence as had been placed on record by the assessee, the claim of the assessee was not liable to have been summarily rejected. We thus, in all fairness restore the matter to the file of the A.O for fresh adjudication. The A.O shall during the course of the set aside proceedings verify the genuineness of the loan transaction and shall peruse the documentary evidence placed on record by the assessee to prove the P a g e | M/s Kaizen Global Services India Pvt. Ltd. Vs. Deputy Commissioner of Income Tax identity, creditworthiness and genuineness of the transactions under consideration. We may herein clarify that we are not expressing any view as regards either the genuineness of the loan transaction or the creditworthiness of the parties from whom the amount of loan is stated to have been received by the assessee. The A.O shall during the course of the set aside proceedings remain at a liberty to verify the genuineness of the loan transaction on the basis of verifications as he may deem fit. We thus, restore the issue as regards the addition of Rs.25,77,902/- as unexplained credit to the file of the A.O for fresh adjudication in terms of our aforesaid observations.

16. We shall now take up the issue as regards the addition on account of unexplained cash credit of Rs.52,36,291/- made by the A.O on account of share application money, which thereafter had been upheld by the CIT(A), We find that during the course of the assessment proceedings, it was observed by the A.O that there was increase in share capital of the assessee to the extent of Rs.52,36,291/- in the balance sheet. On being queried, it was submitted by the assessee that the said amount was received by way of share application money from its sister concern, viz. M/s Medilux Laboratories, for the reason that no financial charges on the said amount of share application money were required to the paid. The assessee explaining the reason for raising the aforesaid amount by way of share application money had submitted that the same was done in order to save the financial expenses involved in raising of funds. It was further submitted that as the authorized share capital of the assessee company was less than the share application money received, hence for the said reason shares could not be allotted. Despite being called upon to place on record the copy of the sanction letter for increase in the share application money, no such confirmation whatsoever was placed on record by the assessee. Rather, it was observed by the A.O that the only document which was furnished by the assessee was the copy of the ledger account of M/s Medilux Laboratory appearing in its books of account. On the basis of the aforesaid deliberations, the A.O held a strong conviction that the assessee had P a g e | M/s Kaizen Global Services India Pvt. Ltd. Vs. Deputy Commissioner of Income Tax introduced its own money in the books of account in the garb of share application money which was stated to have been received from its aforesaid sister concern. The A.O being of the view that the assessee had failed to substantiate the nature and source of the credit, identity and capacity of the subscribers and genuineness of the transactions, thus treated the amount of Rs.52,36,291/- claimed by the assessee to have been received towards share application money, as an unexplained cash credit which was added to the total income of the assessee under the head income from other sources. The CIT(A) deliberating on the contentions advanced by the assessee that the addition of the amount of Rs.52,36,291/- which was received by the assessee towards share application money was wrongly made by the A.O, observed that as per the mandate of law it was obligatory on the part of the assessee to establish not only the identity of the subscriber, but also their creditworthiness and the genuineness of the transaction. It was observed by the CIT(A) that though the assessee in order to prove the identity of the share applicant had placed on record a confirmation letter along with the copy of the ledger account of the party and the acknowledgment of its return of income, however no other details were furnished as regards the creditworthiness and the genuineness of the transaction. On the basis of the aforesaid deliberations, the CIT(A) found himself to be in agreement with the observations of the A.O that as the assessee had failed to establish the creditworthiness of the subscriber and the genuineness of the transaction, hence the addition of Rs.52,36,291/- claimed by the assessee to have been received by way of share application money was rightly made by the A.O under Sec. 68 of the Act.

No. 5 raised by the assessee is dismissed in terms of our aforesaid observations.

17. As regards the challenge thrown by the assessee to the levy of interest under Sec.234A, 234B and 234C of the Act, we are of the considered view that as the levy of interest under the aforesaid statutory provisions, pursuant to the judgment of the Hon’ble Supreme Court in the case of CIT Vs. Anjum M.H. Ghaswala (2001) 252 ITR 1 (SC) has been held to be mandatory, hence the Ground of appeal No. 6 is disposed off as having been rendered as consequential in nature.

18. That as regards the assailing of the initiation of penalty proceedings under Sec.271(1)(c) of the Act, we are of the considered view that as the A.O