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Income Tax Appellate Tribunal, “A”, BENCH MUMBAI
Before: SHRI R.C.SHARMA, AM & SHRI RAVISH SOOD, JM
आदेश / O R D E R PER R.C.SHARMA (A.M): These are the cross appeals filed by assessee and revenue against the order of CIT(A) for the assessment year 2009-10 in the matter of order passed u/s.143(3) of the IT Act. 2. Rival contentions have been heard and record perused.
2 & 5643/Mum/2013 M/s. Linfox Logistics India Pvt. Ltd., 3. Facts in brief are that assessee is engaged in providing transportation and warehousing and related support services. During the course of scrutiny assessment, AO made disallowance on account of foreign exchange fluctuation loss, lost stocks. Addition was also made on share application money u/s.68. Disallowance was also made u/s.40(a)(i) of the Act.
By the impugned order CIT(A) deleted the addition made u/s.68 amounting to Rs.2,41,12,500/- by following the order of earlier assessment year passed by its predecessor. We found that addition so made by AO and deleted by CIT(A) in the preceding assessment year 2007-08 was confirmed by the Tribunal vide order dated 30/09/2015 after having the following observation.
7. We have carefully considered the rival submissions. During the year under consideration the assessee company received a sum of Rs.1,02,78,800/-, which was claimed to be received from its parent company i.e. M/s.Linfox International Group Pty. Ltd., Australia. In support of such credit, assessee furnished before the lower authorities a copy of the FIRC issued by the Bank. The CIT(A) has noticed that the ITA 864/MUM/2012 (Assessment Year : 2008-09) copy of FIRC furnished by the assessee reflects the name of the assessee as the beneficiary and the name of the sender/remitter - M/s.Linfox International Group Pty. Ltd., Australia was also mentioned. It is also noticed by the CIT(A) that FIRC shows purpose of the remittance as "towards share application". Quite clearly, the impugned sum has been received by the assessee through banking channels, and the material on record clearly brings out source as well as the nature of the amount received. Under these circumstances, in our view, the CIT(A) made no mistake in holding that the identity and creditworthiness of the creditor and genuineness of the transaction stood satisfactorily explained. In the absence of any credible material with the Revenue to disprove the findings of the CIT(A), we hereby affirm the same. Thus, on this aspect the Revenue fails. 5. As the facts and circumstances during the year under consideration are same, respectfully following the order of the Tribunal in assessee’s own case on the very same ground, we do not find any infirmity in the order of CIT(A) for deleting the addition made u/s.68 of the IT Act.
3 & 5643/Mum/2013 M/s. Linfox Logistics India Pvt. Ltd., 6. Disallowance made u/s.40a(ia) amounting to Rs.5,79,95,330/- was restored back by the CIT(A) to the AO for verification and deciding afresh after having the following observation. I have considered the facts of the case. This issue has arisen in CIT(A)'s order of A.Y.2007-08 wherein in para 7.3 it is held as under: "7.3 I have considered the facts of the case as explained by the appellant in earlier paragraph giving the details of amount reimbursed and the head/purpose on account of which the amounts were reimbursed. In respect of reimbursement on account of salary cost the provisions of sec.195 were not applicable. In respect of purchase of other assets i.e. lap top, pen drive, mobile phones, etc., the provisions of sec. 195 were not applicable since there was no element of income passed on to its group companies. Similarly the expenditure reimbursed on account of traveling and phone deposits were also not covered by provisions of sec.
However, the appellant also admitted that the reimbursement amount included payment on account of rent. Such payment on account of rent were chargeable under the I.T. Act and therefore, the provisions of sec. 195 were applicable in respect of such reimbursements. The A.O. is directed to invoke provisions of sec. 195 of the Act in respect of reimbursement pertaining to rent. The disallowances made in respect of other reimbursement amount are deleted.
We have considered rival contentions. The Learned Commissioner of Income-tax (Appeals) ['CIT(A)'] relying on the order of AY 2007-08, had directed the Learned Assessing Officer ('AO') to verify the details and determine, whether the payments made to the overseas entities will be liable for withholding tax as per the provisions of section 195 of the Income-tax Act, 1961 ('Act'). In pursuance of the same, the Learned AO had called for various details. Learned A.R. placed on record copy of the submissions and documents submitted before the Learned AO vide letter dated 14 January 2016 establishing that the reimbursement of Rs. 4 & 5643/Mum/2013 M/s. Linfox Logistics India Pvt. Ltd., 5,79,95,330 was pure reimbursement without any mark up and therefore, does not attract provisions of section 195 of the Act based on various decisions of Bombay and other High Courts. We found that after considering the details, the Learned AO was satisfied that these are pure reimbursements and therefore section 195 read with section 40(a)(i) of the Act does not apply and accordingly deleted the entire disallowance of Rs. 5,79,95,330. In view of the above, Departments' ground cannot survive since the Learned AO has already verified the details and has accepted that these are pure reimbursement, not attracting provisions of section 195 of the Act. Accordingly, we dismiss the ground raised
by the Revenue.
8. Assessee is aggrieved for disallowance on account of loss of stock. In this connection, the Assessee had submitted that the claim on account of deduction made by the customer (i.e. HUL) from the payments to the Assessee towards warehousing and transport charges on account of damages, shortage and for delays etc. In this regard, the copies of credit notes issued to HUL along with the corresponding details was submitted before the authorities and is also summarized at page 226 para 3.2.4 of the Fact Sheet filed before us and is also enclosed at page 111-117 of the revised paper book filed on 2 March 2016. In view of this, it was submitted that looking at the hazards of carrying on business of transportation and warehousing, these losses are incidental and therefore allowable as a business loss. Without prejudice, the Assessee has also filed additional ground of including this as bad debt under section 36(1)(vii) of the Act.
5 & 5643/Mum/2013 M/s. Linfox Logistics India Pvt. Ltd., The gross income received from warehousing and transport charges of Rs.82,36,59,877 has been offered as income and therefore short recovery / deduction by the customer is allowable as loss under section 28/37 of the Act or as a bad debt under section 36(1)(vii) of the Act.
We found that similar issue has been dealt by Tribunal in assessee’s own case for the assessment year 2008-09 wherein assessee’s claim for deduction u/s.36(1)(vii) r.w.s. 36 was allowed in favour of the assessee after having the following observation:-
The second issue in this appeal relates to a disallowance of Rs.65,40,000/-, which was made by the Assessing Officer on the ground that the same was on account of a mere Provision for doubtful debts. The CIT(A) has since deleted the addition on the ground that in sum and substance the impugned sum of Rs.65,40,000/- was actually a bad debt written-off and not merely a Provision for bad and doubtful debts. As per the CIT(A), the impugned sum was deductible under section 36(1)(vii) r.w.s. 36(2) of the Act. Against such a decision, Revenue is in appeal before us. In the course of assessment proceedings, the Assessing Officer noticed that assessee had debited Provision for bad and doubtful debts of Rs.65,40,000/- to the P&L Account. On being asked to explain, assessee contended that the impugned sum was in the nature of non-recoveries from the customers. It was explained that the ITA 864/MUM/2012 (Assessment Year : 2008-09) nature of the transaction was write off of non-recoverable amounts from the customers and, therefore, it was in the nature of a bad debt written-off, which was allowable under section 36(1)(vii) r.w.s.36(2) of the Act. The Assessing Officer however, disallowed the claim on the ground that it was stated as a Provision for doubtful debts.
9. We find that before the CIT(A) assessee explained that in the transportation and warehousing business losses occur on account of detention, loss of stock and damage to the stocks. Wherever losses occur to the consignee/consignor of the consignment, they recover the same from the bills of the transporter. The mode of recovery was deduction in the payment to the transporter. Such like claims stood at Rs.65,40,000/- and assessee explained that there was no likelihood of recovery of such amounts from the customers in any time in future. Therefore, assessee had written-off such amount as non-recoverable. The assessee also explained that there was an error in reflecting the same as a Provision for doubtful debts and not as actual bad debts. The CIT(A) has considered the submissions put forth by the assessee and deleted the addition by making the following discussion:- "5.3 I have considered the facts of the case. In the P&L account the appellant claimed provision for doubtful debts of Rs.65,40,000/-. The Assessing Officer disallowed the same on the ground that firstly the provisions were not allowable as business expenses and secondly the details thereof were not furnished by appellant. On the other hand the appellant has explained that 6 & 5643/Mum/2013 M/s. Linfox Logistics India Pvt. Ltd., the Assessing Officer had made addition without asking for details of such provision actually not a provision. The appellant has explained that the amount of Rs.65,40,000/- was actually not a provision but represented the actual amounts receivable from the clients which could not be recovered and hence constituted a bad debt. The amount represented short recovery of transportation charges from the clients on account of losses occurred on account of retention, loss of stock and damage to stock whereas the transport invoices were accounted in the books of accounts for the whole amounts reflected in the transportation invoices. In the facts and circumstances, the amount wrongly claimed as provision of Rs.65,40,000/- was actually a bad debt which was already included in the sale turnover of the appellant. In the facts and ITA 864/MUM/2012 (Assessment Year : 2008-09) circumstances the conditions laid down in sec. 36(1)(vii) r.w. 36(2) of the Act were duly complied with. As per Supreme Court decision on this issue there was no requirement of establishing that such receivable have actually become bad. In the facts and circumstances the appellant's claim of Rs.65,00,000/- was allowable as bad debt. The disallowance made by Assessing Officer is deleted. This ground of appeal
is allowed."
10. Before us, the Ld. Departmental Representative has not advanced any arguments which would negate the factual finding arrived at by the CIT(A). Quite clearly, the assessee company is in the business of transportation and the impugned sum has been found to be "......short recovery of transportation charges from the clients on account of losses occurred on account of retention, loss of stock and damage to stock....." Furthermore, the CIT(A) has also recorded a finding that the invoices raised by the assessee which have been credited in the books of account as income cover the impugned sums also. Therefore, the CIT(A) has found that the conditions laid down in section 36(1)(vii) r.w.s. 36(2) of the Act have been complied with. We hereby affirm the aforesaid finding of the CIT(A) in the absence of any credible material or reasoning brought out by with the Revenue before us. Thus, on this aspect also Revenue fails.
10. We have considered rival contentions and carefully gone through the orders of the authorities below as well as order of the Tribunal dated 30/09/2015 in assessee’s own case, wherein facts and circumstances were similar.
11. Respectfully following the order of the Tribunal, we do not find any merit for the disallowance of Rs.1,03,86,501/- made on account of loss of stock.
12. Next grievance of assessee relates to disallowance on account of foreign exchange fluctuation loss. We found that assessee has raised this 7 & 5643/Mum/2013 M/s. Linfox Logistics India Pvt. Ltd., ground before the CIT(A), however, CIT(A) has not disposed of this ground.
This issue was discussed in great detail in the recent landmark ruling of Supreme Court in the case of ClT vs Woodward Governor India P. Ltd (312 ITR 254) where in the SC relied on the earlier judgment in the case of Sutlej Cotton Mills Ltd vs. CIT (116 ITR 1) which observed as follows :- "The law may, therefore, now be taken to be well settled that where profit or loss arises to an assessee on account of appreciation or depreciation in the value of foreign currency held by it, on conversion into another currency, such profit or loss would ordinarily be a trading profit or loss if the foreign currency is held by the assessee on revenue account or as a trading asset or as port of circulating capital embarked in the business. But, if on the other hand, the foreign currency is held as a capital asset or as fixed capital, such profit or loss would be of capital nature."