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Facts
The assessee challenged the disallowance of provisions made for effluent/waste disposal and processing charges. The Assessing Officer noted that these provisions were not ascertained liabilities and disallowed them. The assessee contended that these provisions were written back in the subsequent year and offered as income, making them tax neutral.
Held
The Tribunal held that while the provisions initially made might not have been fully substantiated as ascertained liabilities, the fact that they were written back and offered as income in the subsequent year meant they should not be taxed again. Consequently, the AO was directed to verify and provide consequential relief. For the issue of purchases from parties in Jammu and Kashmir, the Tribunal found that the assessee had provided substantial documentation and that the non-response to online notices was due to specific circumstances. Therefore, the addition was deleted.
Key Issues
Whether the provisions made for likely expenses for effluent/waste disposal and processing charges are disallowable when written back and offered to income in the subsequent year. Whether purchases from parties in Jammu and Kashmir are genuine despite non-response to online notices.
Sections Cited
40(a)(ia), 133(6), 201(1), 143(3), 69C, 144B
AI-generated summary — verify with the full judgment below
Income Tax Appellate Tribunal, ‘C’ BENCH
Before: SHRI AMIT SHUKLA & SHRI PRASHANT MAHARISHI
PER AMIT SHUKLA (J.M): The aforesaid appeals have been filed by the assessee against the order of even date 08-08-2023 for A.Y. 2010-11 and the A.Y.
ITA Nos. 3583, 3584 & 3585/Mum/2023 AYs. 2017-18, 2011-12 & 2010-11 M/s. Isagro (Asia) Agrochemicals Pvt. Ltd. M/. PI Industries Ltd. 2011-12; and order dated 09-08-2023 for the A.Y. 2017-18, passed by National Faceless Appeal Centre, NFAC, Delhi for quantum of assessment passed u/s. 143(3).
We will first take up the appeal for assessment year 2010-11 wherein assessee has raised the following grounds:-
“1. The ld. CIT(A) erred in confirming disallowance of provision made by the appellant for the likely expenses to be incurred Rs. 84,96,600/ on treatment & disposal of effluent/waste generated out of manufacturing carried out during the year and pending for treatment & disposal Ld CIT (A) failed to consider that Effluent/waste generated being treated departmentally the provision being written back and credited in A.Y 2011-12 to Profit & loss Account, Provision was made to comply matching concept and is tax neutral. 2. The Id CIT(A) erred in confirming disallowance of provision made by the appellant for likely expenses to be incurred for job-processors of Rs. 42,95,509/-on account of Contractor's claim for rate revision of job charges. Provision was required to be made, having regard to principle of prudence and matching. Ld. CIT (A) failed to consider that said provision being written back and credited in A.Y 2011-12 to Profit & loss Account as no more required, Provision was made to comply matching concept was otherwise tax neutral. 3. The Ld CIT(A) erred in confirming disallowance of both provision made for Rs 84,96,600/- and Rs. 42,95,509/- as referred in GR 1 & 2 without considering the fact that said provision is written back in A.Y.2011-12, hence allowance of the provision was tax neutral. 4. The Ld. CIT(A) erred in confirming non allowance of provision of Rs. 5,40,000/- made for sales-returns without properly appreciating the facts that such provision for loss of
ITA Nos. 3583, 3584 & 3585/Mum/2023 AYs. 2017-18, 2011-12 & 2010-11 M/s. Isagro (Asia) Agrochemicals Pvt. Ltd. M/. PI Industries Ltd. profit on sales returned, was required to be made to arrive at correct profit for the year, having regard to principles of prudence. 5. The appellant pray that disallowance made be deleted. 6. The appellant craves your honour's leave to add, alter or amend any grounds of appeal at the time of hearing or before.” 3. The brief facts are that the assessee is engaged in the business of manufacturing and trading of petro-chemicals. The Assessing Officer noted that the assessee has debited following amounts as provisions:-
i. Effluent/waste disposal expenses Rs. 1,43,98,421/-
ii Processing charges Rs. 1,82,61,022/-
In response to show cause notice, the assessee submitted the details of the above expenses. From the perusal of the details, he noted that the payments have been made along with tax deducted at source to the extent of Rs. 59,01,821/- however there is a credit for provision of expenses of Rs. 84,96,000/- on account of effluent/waste disposal. Similarly, in respect of processing charges, the assessee has furnished the details of the parties to whom the payments were made alongwith the details of tax deducted at source to the extent of Rs. 1,39,65,513/-, but again there was a credit for provision of expenses of Rs. 42,95,509/- under this head. Again, the Assessing Officer issued show cause notice, as to why the said provision should not be disallowed. In response, the
ITA Nos. 3583, 3584 & 3585/Mum/2023 AYs. 2017-18, 2011-12 & 2010-11 M/s. Isagro (Asia) Agrochemicals Pvt. Ltd. M/. PI Industries Ltd. assessee filed its explanations which have been incorporated in the assessment order from pages 6 to7. However, the Assessing Officer noted that the assessee has not furnished any documentary evidences to prove that provision has been written back in the subsequent year and these provisions are not ascertained liabilities and therefore they are not allowable expenses. Accordingly, he added provision credit for effluent waste and disposal of Rs. 84,96,600/- and for the processing of charges of 42,95,509/- resulting into aggregate addition of Rs. 1,27,92,109/-.
The ld. CIT (A) has confirmed the additions holding that, firstly, assessee could establish that it was ascertained liability and the basis for estimate of provision and secondly, the assessee has not provided any proof that the provision made in the current year has been offered to income in the next assessment year.
Before us, the ld. counsel submitted that assessee has given the details for provision of waste disposal expenses and in the earlier years assessee has paid to the third parties for the effluent treatment and waste disposal but from this year assessee had installed its own plant. However till 31st March, 2010 the production/functioning could not be started due to technical glitches. Looking to the past expenditure and nature of expenses likely to be incurred, assessee made provision to Rs. 84,96,600/-. He further submitted that, this provision has been credited back to the profit and loss account in the assessment year 2011-12 and offered it as income and in support he filed profit and loss account 4
ITA Nos. 3583, 3584 & 3585/Mum/2023 AYs. 2017-18, 2011-12 & 2010-11 M/s. Isagro (Asia) Agrochemicals Pvt. Ltd. M/. PI Industries Ltd. of succeeding year including the accounts wherein amount has been credited back on 24-12-2010 for the same amount of Rs. 84,81000/-. Thus, he submitted that this amount has finally been credited to income and tax rate for previous year being the same, therefore, no adverse inference should be drawn. Similarly, with regard to processing charges, he pointed out that it has been credited back in the next assessment year for the same amount and in support he has also filed the copy of profit and loss account and ledger account of processing charges wherein this amount has been credited back.
On the other hand, the ld. D.R. relied upon the order of the CIT (A) and submitted that assessee could not provide the details of expenses for which provision was made nor furnished such bills of expenses incurred. Thus, provision cannot be allowed. Regarding the amount which has been credited/written back in the next assessment year, he submitted that matter should be restored back to the file of A.O. to verify the same.
We have heard the rival contentions and also perused relevant finding given in the impugned order and the materials referred to before us. It is seen that assessee has created a provision for likely incurring of expenses for treatment of disposal of effluent waste generated out of manufacturing carried out during the year. The assessee might have incurred expenditure in the earlier years under this head but those were actual expenses and paid to the third parties. From this year, assessee has installed its own plant. 5
ITA Nos. 3583, 3584 & 3585/Mum/2023 AYs. 2017-18, 2011-12 & 2010-11 M/s. Isagro (Asia) Agrochemicals Pvt. Ltd. M/. PI Industries Ltd. However, neither any details of expenses incurred prior 31st March, 2010 were filed nor any expenses which have been actually booked and have been shown to be paid immediately thereafter. Even there is no proper scientific basis for estimate for such an expense. Here, the provision made was not based on any scientific basis but on likely future event that also was not demonstrated that it was accounted for on some reasonable estimate, therefore even according to accounting standard AS-29 same cannot be allowed. Thus, the ld. CIT (A) was correct while upholding the disallowance on account of the provision made by the A.O.
However, we find that the amount has been credited back in the subsequent assessment year for which copy of profit and loss account and other details have been filed which show that this amount has been credited back as income. Thus, even if the provision is to be disallowed in A.Y. 2010-11, then in the subsequent year once assessee has credited back and offered as income then same cannot be taxed again in A.Y.2011-12. Accordingly, the Assessing Officer is directed to verify the said account and if assessee has written back and credited to income then he should give consequential relief in the A.Y. 2011-12 and not to tax the same amount in next year. With these directions, ground no. 1 raised by the assessee is partly allowed for statistical purposes.
Similarly in ground no. 2 relating to provision for processing charges of Rs. 42,95,509/-, once again no such details of the 6
ITA Nos. 3583, 3584 & 3585/Mum/2023 AYs. 2017-18, 2011-12 & 2010-11 M/s. Isagro (Asia) Agrochemicals Pvt. Ltd. M/. PI Industries Ltd. working of the expenditure has been provided nor any such details of basis of provision, hence the estimate of provision cannot be ascertained consequently such a provision cannot be allowed. However, this amount of provision has been credited back in the next year. Accordingly, AO is directed to verify the same if the same has been credited back. Thus, similar direction is given on this issue also and consequently, ground nos. 2 and 3 are treated as partly allowed for statistical purposes.
With regard to non-allowance of provision of Rs. 5,40,000/- made for sales return, it has been pointed out that the same has been disallowed by the Tribunal in the earlier year.
The brief facts are that the assessee has created a provision for sales return on estimate basis of Rs. 5,40,000/- on some perceived loss of sales return and some hypothetical assumption of principles of prudence. In the earlier year similar disallowance has been upheld by the Tribunal in A.Y. 2008-09. The relevant finding of the CIT (A) following the ITAT order reads as under:-
“Assessee himself stated in end of para 2.1(36) (Hon ITAT in appellate order for AY 08-09 held that Even otherwise also, it is evident, the amount in dispute is a provision made for likely loss on sales return. Therefore, it is quite clear that the expenditure has not crystallized during the year and is an anticipated loss. That being the case, it cannot be allowed. However, if such loss has actually arisen in the subsequent assessment year due to sales return, the Assessing Officer is directed to verify and grant consequential relief. This ground is allowed for statistical purposes. 2.2 Han IT AT held that loss
ITA Nos. 3583, 3584 & 3585/Mum/2023 AYs. 2017-18, 2011-12 & 2010-11 M/s. Isagro (Asia) Agrochemicals Pvt. Ltd. M/. PI Industries Ltd. arising in subsequent year, on sales return be allowable. It is prayed that a similar direction may be given for Current Year also. In this judgment Hon'ble ITAT also has said that amount in dispute is provision made for likely loss of sales return means that expenditure is not crystallized and has directed that it should be allowed only if it has actual arisen in the event of sale return in next year. So loss on likely sales return cannot be allowed. So in the light of above discussion contention of assessee is rejected and order of Assessing Officer regarding addition of Rs 5,40,000/- as provisions of sale return is upheld.” Thus, this ground raised by the assessee is dismissed. 12. In the result, the appeal for the assessment year 2010-11 is partly allowed.
ITA No. 3584/Mum/2023 A.Y. 2011-12
The assessee has raised the following grounds:-
“1. The Ld. Assessing Officer erred in making disallowance of Rs.1,27,89,234/- under provision of section 40(a)(ia) of the Income Tax Act without properly appreciating the fact that appellant has discharged its TDS liability as applicable Disallowance in Assessment order are made of Rs. 1,27,89,234/- out of total expenses of advertisement, sales promotion and clinical trial incurred Rs.1,55,90,128/- as TDS was deducted only on Rs 27,94,894/-. 2. The Ld. Assessing Officer erred in making disallowance without bringing anything on record to show that appellant was under an obligation to deduct tax on the said balance amount of Rs.1,27,89,234/- as disallowed.
ITA Nos. 3583, 3584 & 3585/Mum/2023 AYs. 2017-18, 2011-12 & 2010-11 M/s. Isagro (Asia) Agrochemicals Pvt. Ltd. M/. PI Industries Ltd. 3 Ld. CIT (A) failed to appreciate that in tax audit report Tax Auditors certified that TDS provisions are complied. Expenses on which no TDS is deducted are not liable to tax deduction. Ld. CIT(A) ought to have considered the fact that Appellant is not treated as 'an assessee in default' under provisions of Sec 201. 4. Ld. CIT (A) failed to appreciate that disallowance for non deduction of tax was made without any show cause notice to assesse. 5. Ld. CIT (A) erred in holding that in case of payments to Foreign Payee in lieu of Lower Deduction Certificate u/s 197, payment is disallowable even income was not liable to tax in India. 6. The Ld. CIT(A) erred in confirming disallowance out of brokerage paid to a foreign agent of Rs. 1,66,828/- without appreciating the fact that such foreign agent does not have a permanent establishment in India and no income is taxable in the hands of such agent in India. 7. The Ld. CIT(A) erred in confirming non allowance of provision of Rs. 12,00,000/- made for sales-returns without properly appreciating the facts that such provision for loss of profit on sales returned, was required to be made to arrive at correct profit for the year, having regard to principles of prudence. 8. Ld. CIT (A) ought to have reduced income of the year as appellant increased its profit by taking credit of Provisions written Back as made in A.Y 2010-11 Rs.84,96,600/- and Rs.42,95,509/- and not allowed as deduction in said year.” 14. The brief facts for the issue of disallowance u/s. 40(a)(ia) is that the A.O. noted that assessee has not deducted TDS on the following payments:
ITA Nos. 3583, 3584 & 3585/Mum/2023 AYs. 2017-18, 2011-12 & 2010-11 M/s. Isagro (Asia) Agrochemicals Pvt. Ltd. M/. PI Industries Ltd.
Accordingly, he has made the disallowance u/s. 40(a)(ia) of Rs. 1,27,89,234/-. The ld. CIT (A) has confirmed the said addition on all the three expenses claimed by the assessee.
Before us, the ld. counsel submitted that one of the parties i.e. MEISTR Media Worldwide is on account of development in chemical magazine of foreign country and this entity is non-resident. This entity does not have any business connection in India or PE and since it is a business income, therefore same could not have been subjected to TDS. There were certain other parties to whom payments were less than the prescribed limit and therefore TDS was not required to be deducted. He has also submitted details of expenses made debited during the financial year on various dates for TDS was not required to be deducted. Similarly expenses for clinical trial, he submitted that some of them were government institution and therefore exempted income tax. Lastly, he submitted that all these parties have shown these incomes in their income tax 10
ITA Nos. 3583, 3584 & 3585/Mum/2023 AYs. 2017-18, 2011-12 & 2010-11 M/s. Isagro (Asia) Agrochemicals Pvt. Ltd. M/. PI Industries Ltd. return and offered it for tax; therefore in view of the proviso to section 201(1), no disallowance can be made.
On perusal of the various details and documents, we find in some case, the limit for TDS is less and in case of one party with regard to advertisement expenditure incurred in chemical magazine of foreign country paid to a foreign entity which it has been stated that it does not have any business connection in India, then ostensibly same cannot be subjected to TDS and therefore same should have removed from the disallowance. Regarding these details of expenses and also whether these parties have offered it for tax, the assessee has to comply with the conditions provided in proviso 201(1). Accordingly, entire matter of disallowance made u/s 40(a)(ia) is remanded back to the file of A.O. to examine applicability of proviso to section 201(1) and whether in few cases TDS was required to be deducted or not. Assessee shall substantiate its claim before the A.O. Accordingly, ground nos. 1 to 6 is set aside to the file of A.O.
Ground no. 7 relates to non-allowance of provision of Rs. 12,00,000/- made sales return is similar to the ground for A.Y. 2010-11, in view of the finding given above, this ground is dismissed.
Lastly ground no. 8, the assessee has raised that the ld. CIT(A) ought to have reduced the income of the year as it has increased its profit by taking the credit of provision written back in A.Y. 2011-12
ITA Nos. 3583, 3584 & 3585/Mum/2023 AYs. 2017-18, 2011-12 & 2010-11 M/s. Isagro (Asia) Agrochemicals Pvt. Ltd. M/. PI Industries Ltd. of Rs. 84,81000/- and Rs. 42,96,600/-, as it was not allowed deduction in A.Y. 2010-11. Since we have already directed the A.O.to examine this issue and reduce the income for A.Y. 2011-12 by these amounts as same has not been allowed as deduction for A.Y. 2010-11.
In the result, the appeal of the assessee is partly allowed.
ITA No. 3585/Mum/2023 A.Y. 2017-18
The assessee has challenged the addition of Rs. 10,32,38,955/- being purchases effected from four parties situated in the State of Jammu and Kashmir.
The brief facts are that assessee has declared purchase goods of Rs. 27,71,20,605/-. The A.O. issued show cause notice u/s. 133(6) to four of the parties based in J&K namely: (i) M/s. Coromandal International Ltd. (ii) Modern Papers, (iii) Opima Farm Solutions Ltd. & (iv) Hyderabad Chemical Pvt. Ltd. The purchases from these parties aggregated to Rs. 10,32,38,955/-. The A.O. had observed that they were sent notices u/s. 133(6) on ITBA portal to verify the genuineness of the purchases and since no reply was received from these parties, he confirmed the entire purchases of Rs. 10,32,38,955/-. The ld. CIT(A) has also confirmed the said addition after observing as under:-
“The said Notices were issued to these purchase parties to verify the genuineness of the purchases, but these parties
ITA Nos. 3583, 3584 & 3585/Mum/2023 AYs. 2017-18, 2011-12 & 2010-11 M/s. Isagro (Asia) Agrochemicals Pvt. Ltd. M/. PI Industries Ltd. failed to reply or file any response to the said notices, so issued u/s 133(6) of the Act. till the date of passing of the Assessment Order or even later. Further the Assessee also failed to discharge the onus cast upon it by the AO to prove the identity creditworthiness and genuineness of such transactions as the appellant assessee had neither provided any supporting documents to the AD or reasons for the said default i.e. in producing the parties for verification, when countered with the above facts nor did the appellant seek such further time to do so. Further, the assessee did not care to inform the AO (in writing) of any such problem it had in producing the said purchase parties for verification or such documents or of any other such technical problems/reasons plaguing it at the time of the assessment proceedings. The appellant assessee even did not care to seek such further time from the AD for producing the said purchase parties in order to prove its bona-fide intentions. Now the Assessee submits that, during the assessment proceedings when notices u/s 133(6) of the Act were issued in case of its above said purchase parties, the internet in the state of J&K was completely down and there was a communications blackout following the revocation of Article 370 etc. However, it is observed that, it cannot be denied that, this critical information was evidently withheld from the then AO and which could have been easily submitted by the Appellant before the AO at the time of ongoing Assessment proceedings itself by means of a simple one page letter. But such facts were not submitted by the appellant or brought to the knowledge of then AD for reasons best known to it. It is difficult to understand as to why this issue being of national importance, technical and critical in nature would not have been appreciated or comprehended by the then AO? Further, as discussed above that, when facts were deciphered w.r.t assessee's submissions dated 02.06.2023 and appellant was asked for specific details vide this office notice dated 06.07.2023, the assessee chose not to file the specific details as thought necessary by the appellate authority to decide this
ITA Nos. 3583, 3584 & 3585/Mum/2023 AYs. 2017-18, 2011-12 & 2010-11 M/s. Isagro (Asia) Agrochemicals Pvt. Ltd. M/. PI Industries Ltd. appeal matter favorably. It is still not found in a position to submit the necessary facts. Hence, it is believed that, had such important information been provided at the proper forum and at right time by the Appellant Assessee the issue would not have arisen. And even when it can le now during the appellate proceedings, it is kind of evasive. Hence, such excuses are held to be a post-thought in substance, as it is not possible to verify them now w.r.t the then ground realities or facts i.e. for example whether the purchase parties in question (at that point in time) had any offices, places of business etc. outside of JSK also or whether the owners / their Manager's/CA's/AR's/Accountants etc, running the said purchase parties were all located & stuck inside of J&K or also out of J&K at that point in time etc. Hence, in view of these facts and circumstances the claim of the appellant that, the AO erred in completing the assessment without providing full and proper opportunity to the appellant to enable the appellant to provide all the requisite evidences and without carrying out requisite enquiry is not found to be correct. Therefore, in the light of the above discussion and the fact that, the assessee has not discharged the onus cast upon it to prove the genuineness of transactions etc. by submitting true and proper facts timely either before the AO or the Appellate authority (before whom it had all the time to do so), this Appellate Authority is hence of the view that Appeal of the Appellate Assessee on these facts is not acceptable and hence rejected and order of the Assessing Officer making the said addition of Rs. 10,32,38,955/- is upheld.” 22. Before us, the ld. Counsel submitted that, before the A.O. assessee has filed entire details of purchases and the trading goods and the suppliers and the addresses along with the bills. Apart from that, assessee has also given the GST No. and also invoice/delivery challan and further on these items not only excise duty was payable but also details of the trucks and the vehicles though which goods
ITA Nos. 3583, 3584 & 3585/Mum/2023 AYs. 2017-18, 2011-12 & 2010-11 M/s. Isagro (Asia) Agrochemicals Pvt. Ltd. M/. PI Industries Ltd. have been transported were also given. He referred to the copy of ledger accounts, copy of sample bills of the parties and the details of excise duty payable and delivery details. Accordingly, he submitted that no addition should be made.
On the other hand, ld. D.R. strongly relied upon the order of the CIT (A). He submitted that once these parties have not confirmed the purchases, same cannot be treated as genuine.
After hearing both the parties and on perusal of the material placed on record, we find before the A.O., the assessee has given the details of purchases made from all the 10 parties which included the aforesaid four parties based in Jammu and Kashmir. The assessee has given the addresses, GST No. PAN No., amount of purchases (Net of VAT), etc. These bill/voucher/challan issued by the parties mentions the details of the assessee, excise duty paid, details of truck/challan no., order No. etc. from all these parties. Further, all the items purchased were subjected to excise duty and assessee had given entire details of the parties and their ledger account and that payment has been made through cheques. Further, it is seen from these invoices that the goods purchased have been delivered to various depots of the assessee across the country along with the delivery details. Once, assessee has submitted all these details, simply based on that notice u/s. 133(6) only on ITBA portal has not been responded cannot be the basis for disallowing the entire purchases when book results and trading account/ sales has not been disturbed. The assessee had submitted 15
ITA Nos. 3583, 3584 & 3585/Mum/2023 AYs. 2017-18, 2011-12 & 2010-11 M/s. Isagro (Asia) Agrochemicals Pvt. Ltd. M/. PI Industries Ltd. that that these notices were sent in December, 2019 and at that time there was no internet and communication was break down following revocation of Article 370 on 4th August, 2019. Thus, these parties were not aware of any such notices nor through ITBA portal. Till January, 2020 2G services were also not working, thus it was impossible for these parties to respond. Further, the assessee has purchase transaction from these parties in the past and subsequent years and all the assessment were completed u/s. 143(3) and no adverse inference has been drawn. Before us, following details and explanation has been given by the assessee before us of these parties:-
ITA Nos. 3583, 3584 & 3585/Mum/2023 AYs. 2017-18, 2011-12 & 2010-11 M/s. Isagro (Asia) Agrochemicals Pvt. Ltd. M/. PI Industries Ltd.
ITA Nos. 3583, 3584 & 3585/Mum/2023 AYs. 2017-18, 2011-12 & 2010-11 M/s. Isagro (Asia) Agrochemicals Pvt. Ltd. M/. PI Industries Ltd.
ITA Nos. 3583, 3584 & 3585/Mum/2023 AYs. 2017-18, 2011-12 & 2010-11 M/s. Isagro (Asia) Agrochemicals Pvt. Ltd. M/. PI Industries Ltd.
ITA Nos. 3583, 3584 & 3585/Mum/2023 AYs. 2017-18, 2011-12 & 2010-11 M/s. Isagro (Asia) Agrochemicals Pvt. Ltd. M/. PI Industries Ltd. 25. In view of the aforesaid details/submissions, we do not find any reason to treat entire purchases as non-genuine simply because notices sent u/s. 133(6) through ITBA portal was not responded ignoring the other evidences and details available on record. Accordingly, entire addition of Rs. 10,32,38,935/- is deleted.
In the result, the appeal of the assessee for A.Y 2010-11; 2011-12 is allowed for statistical purposes and appeal for A.Y. 2017-18 is allowed.
Order pronounced on 27th February, 2024
Sd/-/- Sd/- Sd/-/- (PRASHANT MAHARISHI) (AMIT SHUKLA) ACCOUNTANT MEMBER JUDICIAL MEMBER Mumbai; Dated: 27/02/2024
Copy of the Order forwarded to : 1. The Appellant 2. The Respondent. 3. CIT BY ORDER, 4. DR, ITAT, Mumbai 5. Guard file. //True Copy// (Asstt. Registrar) ITAT, Mumbai