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Income Tax Appellate Tribunal, “D” BENCH, MUMBAI
Before: SHRI SAKTIJIT DEY & SHRI N.K. PRADHAN
Aforesaid cross appeals by the assessee and the department are against a common order dt. 31.10.2014 of Ld. CIT(A)-13 Mumbai, for the assessment year 2010-11 ITA no.193/Mum./2015 Assessee’s Appeal The effected grounds raised by the assesse is as under. Ground No.
1. Briefly the facts are, the assesse a company is engaged in the business of trading and giving on hire IT equipments like PC’s, Laptop, servers, projectors etc. During the assessment proceeding the assessing officer while examining the party wise details of receipts and TDS made vis a vis the receipts shown in the proft and loss account found a difference of Rs.6,65,330/-. On being asked by the assessing officer to reconcile the difference, the assessee submitted party wise list of gross receipts as per TDS certificate and as appearing in the profit and loss account. It was explained by the assessee that the difference pointed by the assessing officer is on account of 4% VAT payable on hire charge bill. The assessing officer, Rank Computers Pvt. Ltd. however, did not find merit in the submissions of the assessee and concluded that the difference represents assessee’s unaccounted sales. Further, the assessing officer observed, since the assesse has claimed credit of the TDS in the impugned assessment year corresponding income has to be assessed in this year only. Accordingly, he added back the amount of Rs. 6,65,330/-. Assessee challenged the addition before the CIT(A). However, Ld. CIT(A) also confirmed the addition by agreeing with the reasoning of the AO.
2. The Ld. AR submitted before us, the assessee in course of the assessment proceeding itself and again before the CIT (A) has not only explained the reason for difference in receipts but also furnished all necessary and relevant details reconciling the difference. In this context the Ld. AR drawing our attention to party wise details of receipts as per the TDS certificate and as shown in the profit and loss account wanted to demonstrate that the difference was solely on account of 4% VAT payment. Ld. AR submitted, the assessee had also filed rectification application u/s 154 of the Act before the assessing officer on 12.06.2013 pointing out the aforesaid fact which is still pending. Ld. AR submitted, neither the assessing officer nor the CIT (A) has properly examined the details submitted by the assesse and Rank Computers Pvt. Ltd. without appreciating the material brought on record have made the addition.
The Ld. DR though, relied upon the observations of the assessing officer and CIT (A), however, he submitted that the issue can be remitted back to the assessing officer for re-examination.
We have heard the parties and perused the material on record. As could be seen from the assessment stage itself the assessee has tried to explain the difference between the receipts as per TDS certificate and as per profit and loss account by explaining that the difference was due to 4% VAT element. In fact, we have noticed from the facts and material placed before us,the assessee has submitted before the A.O a list containing party wise details of receipts as per TDS certificate and as per profit and loss account to demonstrate the fact that the difference is on account of VAT. We have noticed, the assessing officer in the assessment order has admitted the fact that the assessee has furnished the details. That being the case, in our view, the departmental authorities should have examined assessee’s claim by properly verifying the details submitted by the assessee. The departmental authorities having failed to do so, we are inclined to remit the issue back to the file of the assessing officer for fresh examination after carefully considering the materials Rank Computers Pvt. Ltd. brought on record by the assessee for reconciling the difference. The assessing officer must afford a reasonable opportunity of being heard to the assessee before deciding the issue.
In the result assessee’s appeal is allowed for statistical purpose. ./2011 Departmental Appeal
Departments has raised the following effective grounds. Ground 1, 2 and 3 In Ground no. 1 department has challenged deletion of addition of Rs. 9,99,984/- u/s 40 A (2) (b) of the Act.
3. Briefly the facts are in course of the assessment proceedings the assessing officer while verifying the profit and loss account noticed that assessee has debited an amount of Rs. 9,99,984/- towards royalty paid to directors. When the assessing officer called upon the assessee to justify the claim of deduction, the assesses in its explanation submitted that both the directors were having their proprietary business of hiring computers and peripherals. Both the directors decided to merge their proprietary business with the assessee company in order to conclude business, improve synergies and get better scales of economy. It was submitted, the directors 5 Rank Computers Pvt. Ltd. have transferred their contracts, networks, and business assets without receiving any goodwill. Therefore, they were compensated by way of royalty. The assessee further submitted that since the directors have shown the royalty received as their income and have paid taxes any further disallowance in the hands of the company would amount to taxing the same income twice. The assessing officer however, rejected the explanation of the assessee by observing that no supporting evidences were submitted by the assessee to indicate that directors were instrumental in bringing business. The assessing officer observed, since the payment were made to related parties provisions of section 40A (2)(b) is applicable. Accordingly, he proceeded to disallow the deduction claimed by the assessee. Assessee challenged the disallowance before the CIT (A). The CIT (A) appreciating the fact that the directors have merged their proprietary concern with the company and the royalty paid was in terms of deed of assignment and such payment is linked to profit of the company, deleted the addition made by assessing officer. 4. The Ld. DR relied upon the observation of the assessing officer. 5. The Ld. AR strongly supporting the order of the CIT(A) submitted that the directors merged their individual business with the company by virtue of deed of assignment. He submitted, as per the deed of assignment the directors were entitled to receive royalty for Rank Computers Pvt. Ltd. a period of five years. He submitted, this issue was first examined in the first year of claim of deduction viz. A.Y 2007-08, wherein, the assessing officer called upon the assessee to justify the claim of payment of royalty. He submitted, in reply assessee had justified claim by furnishing necessary details. The Ld. AR submitted, the assessing officer after examining the assessee’s claim in detail allowed the payment of royalty. He submitted except the impugned assessment year, in no other assessment year the assessing officer has disallowed the royalty paid even though assessment where completed u/s 143 (3) of the Act. To prove such fact Ld. AR submitted copies of the assessment order for assessment year 2007-08, 2008- 09 and 2009-10 passed u/s 143(3) of the Act. The Ld. AR submitted, as per the provision contend u/s 40A (2) (b) of the Act, assessing officer must form an opinion with regard to the reasonableness of payment made by the assesse. He submitted, in the case of the assessee no such opinion has been formed by the assessing officer to indicate that payment made by the assessee is unreasonable. He therefore submitted, disallowance was rightly deleted by the CIT (A).
We have considered the submissions of the parties and perused the materials on record. The fact that the directors of the company were running their proprietary business in the same line has not been controverted by the assessing officer. He has not disputed the fact Rank Computers Pvt. Ltd. that the directors have merged their proprietary business with the assessee company. As per the deed of assignment dt. 1st April,2006 the directors were entitled to receive royalty at the specified rate. It is also a matter of record that in assessment year 2007-08, this particular issue was examined by the assessing officer and after considering explanation of the assessee he allowed the deduction claimed on account of royalty. The same is also the fact in assessment year 2008-09 and 2009-10, wherein assessments completed u/s 143 (3) of the Act, the assessing officer has allowed assessee’s claim of deduction on account of payment of royalty. Thus, as could be seen out of five years for which payment of royalty was to be made by the assessee, except the impugned assessment year, in no other assessment year assessee’s claim has been disallowed, though, assessments have been completed u/s 143 (3) of the Act. Therefore, applying the rule of consistency no disallowance should have been made in the impugned assessment year. Further, on perusal of the assessment order we have noted that the assessing officer has not recorded any reason to demonstrate that the payment made by the assessee is unreasonable as mandated by Section 40 A (2)(b). That being the case disallowance of the expenditure claimed by invoking Section 40 A (2) of the Act, is not proper. Accordingly, we uphold the order of CIT(A) by dismissing the ground raised.
Rank Computers Pvt. Ltd. In ground no. 3 department has challenged the deletion of addition of Rs. 45,67,301/-. Briefly the facts are, during the assessment proceedings the assessing officer noticing that assessee has debited an amount of Rs.45,67,901/- towards purchase of leased assets called for necessary detail and after verifying them found that the assessed has offered revenue from trading activity at Rs. 22,11,851/- and from hiring activity at of Rs.1,63,72,661/-. From the aforesaid figures he found that major part of revenue is generated from hiring activity. Whereas, assessee has debited an amount of Rs. 73,65,319/- towards purchase cost. Looking at the nature of assessee’s business he therefore called upon the assessee to justify the deduction claimed because in view of the assessing officer, such expenditure is of capital nature. In response to the query raised by the assessing officer it was submitted by the assessee, out of the total purchases an amount of Rs. 45,64,901/- represent hire charges paid for hiring equipment. Hence, it cannot be treated as capital expenditure. The assessing officer however, did not find merit in the submission of the assessee. He observed, there is no reason why purchase cost of assets given on hiring activity should not be capitalized. Further, he observed, since the assessee has paid VAT at 4% on the purchases the claim that they are for hiring of equipment is not acceptable. Accordingly, he held that the expenditure claimed Rank Computers Pvt. Ltd. ITA No. 7526/Mum/2011 is not allowable. Further, he observed that if assessee’s claim of hire charges is accepted then he should have deducted tax u/s 194 I. Since, the assessee has not deducted tax u/s 194 I, according to the assessing officer the payment made has to be disallowed u/s40(a) (ia) of the Act. Accordingly, he made the disallowance. Being aggriveed of such disallowance assessee preferred appeal before the CIT (A). Ld. CIT (A) after considering assessee’s submission and materials brought on record having found that the assessee has taken on hire computers and peripherals from third parties and paid hire charges, and further, assessee has also deducted tax at source on such payments u/s 194J held that the assessing officer was not justified in disallowing assessee’s claim. Accordingly, he deleted the addition.
The Ld. DR relied upon the reasoning of the assessing officer. Ld. AR supported the finding of the CIT (A).
We have considered the submission of the parties and perused the materials on record. As could be seen, the assessing officer being of the view that the payments made by the assessee were towards purchase of assets has treated the expenditure as capital in nature. However, it is evident, assessee has brought material on record to demonstrate that it has brought on hire computers and peripherals Rank Computers Pvt. Ltd. from third parties and deduction claimed was on account of payment made to those parties towards hire charges. This fact is demonstrated from the TDS certificate submitted by the assessee before the departmental authorities. It is also a fact on record that assessee has deducted tax at source on payment of hire charges in terms of Section 194 J of Act. Thus, prima facie it is proved that the payment is towards hire charges and not for acquiring any capital assets. That being the case, the expenditure claimed is allowable. As far as the observation of the assessing officer that the amount is otherwise disallowable u/s 40 (a)(ia), we do not find any merit in the same considering the fact that the assessee has deducted tax at source on such payment u/s 194 J. As far as the allegation of the department that CIT (A) has admitted additional evidence in violation of rule 46A we are not convinced with the same. It is evident on record that the TDS certificate on the basis of which Ld. CIT (A) has come to his conclusion were available before the assessing officer and in any case of the matter the TDS certificate cannot be treated as additional evidence. In view of the aforesaid we do not find any infirmity in the order of the CIT (A) on this issue. Accordingly, we uphold the same by dismissing the grounds raised
by the department.
9. Grounds No. 4 and 5 being general in nature do not require adjudication, hence, dismissed.