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Income Tax Appellate Tribunal, INDORE BENCH, INDORE
आदेश /O R D E R
PER SHRI D.T. GARASIA, JM
Both the appeals relate to the same assessee and
common grounds are taken, therefore, these are being
ITA Nos. 258 & 232/Ind/2016 Cummins Technoligies disposed of by this consolidated order for the sake of
convenience.
The first ground which is common in both the appeals
reads as under :-
“That, on the facts and in the circumstances of the case and in law the learned Commissioner of Income Tax (Appeals) erred in confirming addition on account of warranty provisions in the assessment year 200708 of Rs. 30,65,282/- and in the assessment year 2010-11 of Rs.16,98,831/- .” In the assessment year 2010-11 the second ground reads
as under :-
“That, on the facts and in the circumstances of the case and in law the learned Commissioner of Income Tax (Appeals) erred in confirming disallowance of Rs.20,38,655/- on account of provision for bad and doubtful debts.”
The short facts of the case are that the assessee
company is engaged in manufacturing of turbochargers.
Original assessment u/s 143 was passed on 24.11.2010.
Thereafter, the Assessing Officer has disallowed provisions
of warranty expenses of Rs.30,65,282/-. The Assessing
ITA Nos. 258 & 232/Ind/2016 Cummins Technoligies Officer was of the view that during the financial year 2003-
04 the assessee has practice of debiting warranty claim
received during the year in profit and loss account.
Subsequently, the company has started making provision
for warranty and this amount was debited in profit and loss
account. The quantification of provision made is not clear
as to how the assessee has quantified and debited. The
company has also not specified the reason regarding
changing the policy. The assessee claimed that the
quantification has been done under the advice from
technical person and the average last quarter of the
warranty cost vs. last vs. last quarter of sales were used for
making the provision. The assessee has not given working.
Therefore, the Assessing Officer was of the view that there
is difference of expenses on account of provision made and
actual expenses incurred by the assessee on the warranty.
Therefore, both the warranty expenses are allowable
ITA Nos. 258 & 232/Ind/2016 Cummins Technoligies expenditure but the method in which the assessee was
claiming, therefore, this was disallowed.
During the course of hearing, the learned counsel for
the assessee has mainly argued on two counts, firstly that
the assessee is following mercantile system of account and
as per this system, there are revenue expenses which are
accounted on accrual basis and the provisions by applying
match concept. Here in this case, the assessee is claiming
warranty expenses which are allowable expenditure as held
by the Hon'ble Supreme Court in the case of Rotork Control
India Private Limited; 314 ITR 62. As per the decision of the
Hon'ble Supreme Court, the warranty expenses are
allowable and in that case, the matter was restored to the
Assessing Officer to verify whether the provision is made on
structure policy of last 8 quarters of warranty cost and last
quarter sales were used for quantifying the provisions. The
assessee is following these provisions based on the policy
ITA Nos. 258 & 232/Ind/2016 Cummins Technoligies which was disclosed as mandated in the accounting
standard. The assessee has made structure policy by
taking the actual warranty cost and sales of last 8 quarters
to make estimate of provisions for warranty claim. The
accounting standard 29 issued by the Institute of
Chartered Accountant mandates making such provision
where reliable estimate can be made. Therefore, warranty
expenses debited cannot be considered as contingent
liability. During the course of hearing, the learned counsel
for the assessee has drawn our attention to page 34 of the
paper book wherein the assessee has made working of last
8 quarters which is the debit notes paid, FOC invoices,
total claims, domestic sales and % of warranty claims to
domestic sales percentage. In the last 8 quarters the
percentage comes to 0.12%. The variation in the provisions
made and actual warranty debited in the profit and loss
account, therefore, based on such working which is
ITA Nos. 258 & 232/Ind/2016 Cummins Technoligies mentioned in page 29 of the paper book and in the audit
account, the assessee has clearly mentioned and disclosed
that provisions of warranty made and utilised and reversed
during the year as per the accounting standard 29 issued
by the institute of Chartered Accountants of India. Similar
disclosure has been made in notes to accounts forming
part of audited financials regarding warranty, therefore,
considering the judgment of Hon'ble Supreme Court and
comparing the facts of this case, warranty expenses are to
be allowed.
On the other hand, the learned DR relied upon the
orders of the authorities below. Moreover, the learned DR
submitted that the assessee was formerly following the
warranty expenses on actual basis and the assessee
thereafter has changed the policy to make the provision for
warranty expenses. Therefore, as per the rule of
consistency, this expenditure cannot be allowed.
ITA Nos. 258 & 232/Ind/2016 Cummins Technoligies 5. We have considered the submissions of both the sides.
Looking to the facts and circumstances of the case, we find
that the assessee company is engaged in manufacturing of
turbochargers and offers warranty for technical default in
the product. During the financial year 2003-04 the
company has practice of debiting the actual warranty
claims received during the year in the profit and loss
account. With the implementation of Accounting Standard
29 issued by the Institute of Chartered Accountants of
India effective from financial year 2004-05 which mandates
making the provision on matching concept principle, the
company started making the provision for warranty and
this amount was debited to profit and loss account. The
provisions were made and advice received from technical
and engineering team. This policy of making the provision
based on technical advice continued even for the next
financial year. During the year the company accrued
ITA Nos. 258 & 232/Ind/2016 Cummins Technoligies
warranty cost on domestic sales. In Schedule 14 of audited
financials the assessee has made disclosure on provisions
of warranty made and utilised and reversed during the year
as per the accounting standard 29 issued by the Institute
of Chartered Accountants of India. The amount was
disclosed as under :-
Financial year Opening Additions Utilisation/ Closing balance Reversal balance F.Y.2006-07 16,20,000 3,471,507 2,177,465 2,914,042 F.Y.2005-06 1,200,000 1,620,000 1,200,000 1,620,000
Details of above figures are as under :- S.No. Particulars Amount F.Y.2006-07 1 Opening balance of warranty provision 16,20,000 2 Add:Provision made during the year 34,71,507 3 Less : Payment of warranty charges 17,71,240 during the year 4 Less : Reversal of credit amount lying in 4,06,225 the warranty provision at the year end in the profit and loss account 5 Warranty provision debited in the profit 30,65,282 and loss account
We find that exercise of warranty claim during the year is
from the provision account which does not affect profit and
loss account. Under new policy percentage of last 8
quarters of warranty cost vs. last 8 quarterly sales were
ITA Nos. 258 & 232/Ind/2016 Cummins Technoligies used for making the warranty expenses provision.
Comparative table disclosing the impact of Accounting
Standard 29 for the Financial Year on Profit of the
company is as under :-
S.No. Particulars Amount F.Y. 2006-07 1 Warranty provision debited in the 30,65,282 profit and loss account 2 Payment of warranty charges 17,71,240 during the year 3 Difference being extra charge on 12,94,042 P&L of the company on account of following Accounting Standard 29 of ICAI
We find that the assessee is manufacturing a product
which requires warranty and the assessee has adopted
reversing excess provision. The assessee is making
provision of warranty applying the percentage of cost to the
turnover based on past record making the process more
scientific bringing into higher degree of accuracy. The
assessee is following mercantile system of accounting.
Therefore, we are of the view that the issue in controversy
is squarely covered by the decision of the Hon'ble Supreme
ITA Nos. 258 & 232/Ind/2016 Cummins Technoligies Court in the case of Rotork Controls India (P) Ltd. vs. CIT;
314 ITR 62 wherein it is held as under :-
“Business expenditure – Allowability – Provision for warranty claims –A provision is recognized when (a) an enterprise has a present obligation as a result of a past event (b) it is probable that an outflow of resources will be required to settle the obligation, and (c) a reliable estimate can be made of the amount of the obligation – If the historical trend indicates that large number of sophisticated goods were being manufactured in the past and in the past if the facts established show that defects existed in some of the items manufactured and sold then the provision made for warranty in respect of the army of such sophisticated goods would be entitled to deduction – Assessee is manufacturing value actuators in large numbers and statistical data indicates that some of them turn out to be defective every year – Being a sophisticated item no customer is prepared to buy value actuator without warranty and, therefore, warranty became an integral part of the sale price – Assessee made a provision for warranty at the rate of 1.5 per cent of the turnover – Such provision needs to be recognised as the assessee has a present obligation as a result of past events which would result in outflow of resources and a reliable estimate can be made of the amount of the obligation – Warranty cost being an integral part of the sale price, assessee must provide for such warranty costs in its accounts for the relevant year, otherwise the matching concept fails – It is appropriate to provide for warranty as a percentage of turnover based on past experience as it satisfies the 10
ITA Nos. 258 & 232/Ind/2016 Cummins Technoligies accrual concept as well as the matching concept – Therefore, assessee incurred liability during the relevant assessment years on the facts and circumstances of the case, and the provision made by it is allowable as deduction under s. 37.”
We respectfully following the same, allow the claim of the
assessee in both the years.
In respect of second ground for assessment year 2010-
11 the Assessing Officer held that the assessee has created
and calculated the provision of doubtful debt on the basis
of age of the debtor. In the cases where the age of debtor
was more than 720 days, 100% outstanding bill was
written off in cases where outstanding bills are between
541 to 720 days, 75% of the amount has been provided
and in cases where bills are outstanding between 361 to
540 days, 50% of the amount has been provided. The
distinction between good and bad debtors have not been
kept in mind and by making provision of bad debts on the
basis of age of outstanding bills, good debtors have also
ITA Nos. 258 & 232/Ind/2016 Cummins Technoligies been provided which is not the intention of section 36(1)(vii)
of the Act. The Assessing Officer, therefore, was of the view
that under section 36(1)(vii) of the Act the bad debt cannot
be allowed.
7 During the course of hearing, the learned counsel for
the assessee has argued that as per the provision of section
36(1)(vii) of the Act, the provision used the words “the
amount of any bad debt or part thereof” which clearly
implies that it is not necessary that whole of the debt must
become bad and doubtful to claim a deduction. Even a part
of such bad and doubtful debt is entitled for claim of
deduction under the provision. In order to claim deduction
under section 36(1)(vii) of the Act, one of the conditions
that it required to be satisfied is laid down under section
36(1)(vii) of the Act. The condition stipulated in first limb of
clause (i) of sub-section 36 is that no deduction on account
of bad debt or part thereof shall be allowed unless such
ITA Nos. 258 & 232/Ind/2016 Cummins Technoligies debt or part thereof has been taken into account in
computing the income of the assessee of the previous year
in which the amount of such debt or part thereof is written
off or an earlier previous year. The second limb of clause (i)
of sub-section (2) of section 36 says that the said condition
is not applicable where such debt represents money lent in
the ordinary business of banking or money lending which
is carried on by the assessee. Therefore, second limb of
clause (i) of sub-section (2) of section 36 is not relevant.
Section 36(1)(vii) of the Act is for computing the total
income of the assessee and bad debt or part thereof has to
be taken into account. It is well settled by the decision of
the Hon'ble Supreme Court in the case of T.R.F. Limited vs.
CIT; 190 Taxman 391(SC) which specifies that the
proposition of law is well settled after 1.4.1989. It is not
necessary for the assessee to establish that the debt, in
fact, has become irrecoverable. It is enough if the bad debt
ITA Nos. 258 & 232/Ind/2016 Cummins Technoligies is written off as irrecoverable in the accounts of the
assessee. Therefore, in the instant case, the decision of the
Hon'ble Supreme Court in the case of Vijaya Bank; 323 ITR
166 (SC) is completely applicable and, therefore, relying
upon the decision of the Hon'ble Supreme Court and
following the decision of the Hon'ble Bombay High Court in
the case of Tainwala Chemicals & Plastics India Ltd. (2013)
34 taxmann.comn. 159 (Bom), it must be allowed.
On the other hand, the learned DR submitted that as
per the decision of the Hon'ble Supreme Court in the case
of T.R.F. Ltd. (supra) after 1.4.1989 if the bad debt is
written off as irrecoverable in the accounts of the assessee,
it is allowable as bad debt. The learned DR submitted that
the assessee has relied upon the decision in the case of
Vijaya Bank (supra) which is completely misplaced because
the assessee company is not doing the business of banking
or money lending. Therefore, the judgment of Vijaya Bank
ITA Nos. 258 & 232/Ind/2016 Cummins Technoligies (supra) is not applicable to the facts of the case of the
assessee.
We have heard both the sides. Looking to the facts and
circumstances of the case, we find that as per the decision
of the Hon'ble Supreme Court in the case of T.R.F. Limited,
wherein the Hon'ble Supreme Court has categorically held
as under :-
“ This position in law is well-settled. After 1.4.1989, it is not necessary for the assessee to establish that the debt, in fact, has become irrecoverable. It is enough if the bad debt is written off as irrecoverable in the accounts of the assessee. However, in the present case, the Assessing Officer has not examined whether the debt has, in fact, been written off in accounts of the assessee. When bad debt occurs, the bad debt account is debited and the customer’s account is credited, thus, closing the account of the customer. In the case of companies, the provision is deducted from sundry debtors. As stated above, the Assessing Officer has not examined whether, in fact, the bad debt or part thereof is written off in the accounts of the assessee. This exercise has not been undertaken by the Assessing Officer. Hence, the matter is remitted to the Assessing Officer for de novo consideration of the above-mentioned aspect only and that too only to the extent of the write off.”
Following the above decision of the Hon'ble Supreme Court,
we are of the view that the assessee’s claim of bad debt 15
ITA Nos. 258 & 232/Ind/2016 Cummins Technoligies and doubtful debt is covered by the decision of the Hon'ble
Supreme Court and as per the decision of the Hon'ble
Supreme Court wherein the Hon'ble Supreme Court has
categorically restored this matter to the file of the Assessing
Officer to examine whether the bad debt or part thereof has
been written off in the accounts of the assessee, the matter
has to be examined by the Assessing Officer de novo and
considering all the above aspect, the matter may be
decided. We, therefore, restore this issue to the file of the
Assessing Officer to do the needful after providing the
assessee reasonable opportunity of being heard.
In respect of the assessee’s contention that the facts
of this case are identical with the facts of the case of Vijaya
Bank (supra), we find that in the decision of the Hon'ble
Supreme Court, the case related to Vijaya Bank and the
bank is in the business of money lending and in that case
the Hon'ble Supreme Court has held that after 1.4.1989
ITA Nos. 258 & 232/Ind/2016 Cummins Technoligies the assessee is required not only to debit the profit and loss
account but also simultaneously reduce the loans and
advances or debtors from the asset side of the balance
sheet to extend the corresponding amount, so at the end of
the year the amount of loans of advances/debtors is shown
as net provision for impugned bad debt. We are of the view
that the assessee is not in money lending business,
therefore, this decision is not applicable to the facts of this
case. During the course of hearing, the learned counsel for
the assessee was specifically asked by the Bench as to
whether the assessee wants to pursue this decision and
still he wants to argue the matter or he wants the matter to
be restored to the file of the Assessing Officer as per the
decision of the Hon'ble Supreme Court in the case of T.R.F.
Ltd. (supra), the learned counsel for the assessee
specifically submitted that it is the wisdom of the Tribunal.
Thereafter, again the same question was put to the learned
ITA Nos. 258 & 232/Ind/2016 Cummins Technoligies counsel for the assessee and the learned counsel for the
assessee has finally conceded that the matter may be
restored to the file of the Assessing Officer as per the
decision of the Hon'ble Supreme Court. Therefore, we have
restored this matter to the file of the Assessing Officer to
decide the same as per the decision of the Hon'ble Supreme
Court in the case of T.R.F. Ltd. (supra).
In the result, ITA No. 258/Ind/2015 is allowed and ITA
No.232/Ind/2016 is partly allowed for statistical purposes.
The order has been pronounced in open Court on
19th January, 2017.
Sd/- Sd/-
(ओ.पी.मीना) (डी.ट�.गरा�सया) लेखा सद�य �या�यक सद�य (O.P.Meena) (D.T.Garasia) Accountant Member Judicial Member
�दनांक /Dated : 19th January, 2017.
Dn/ 18