VOLKART FLEMING SHIPPING & SERVICES LTD,MUMBAI vs. ASST CIT 2(3), MUMBAI

This appeal by the assessee is directed against the order of the CIT(A)-6, Mumbai dated 11.03.2013 for A.Y. 2009-10.

Ground 1: Treatment of business income

1. The learned Commissioner of Income-tax (Appeals)-6, Mumbai ["the CIT(A)"] erred in confirming the action of Assessing Officer ("AO") in not allowing the loss from business as claimed by the appellant.

2. The learned CIT(A) erred in holding that the employees of the appellant actually work for parent company viz. Forbes & Company Limited and the parent company pays salary to them in the form of reimbursement.

3. The learned CIT(A) further erred in stating that the entire arrangement has been made to claim expenses which are otherwise not allowable under the head income from house property and interest income. Ground 2: Disallowance of expenses of Rs. 19,11,600 4 The learned CIT(A) erred in confirming the action of the AO in disallowing the deduction for expenses of Rs. 19,1 1,600 against the business income of the appellant. 5 The learned CIT(A) erred in not appreciating the fact that these expenses are in respect of day to day maintenance of the appellant and hence allowable as deduction against the business income. Ground 3: TDS Credit

6. The learned CIT(A) erred in not specifically directing the AO to grant the credit for balance TDS of Rs. 2 1,93,696 as claimed in the return of income. Ground 4: Interest under section 234C

7. The learned CIT(A) ought to have directed the AO to compute interest under section 234C i.e. Rs. Nil based on the returned income.

Volkart Fleming Shipping & Services Ltd. Ground 5: Interest under section 244A 8. The learned CIT(A) erred in not specifically directing the AO to grant interest under section 244A upto the date on which the refund is granted. General 9. Each one of the above grounds of appeal is without prejudice to the other.

10. The appellant reserves the right to add, alter of amend to the grounds of appeal.”

4. Ground No. 1 (1 to 3): Treatment of business income 4.1 In these grounds, the assessee contends that the learned CIT(A) erred in confirming the AO’s finding in not allowing the loss from business amounting to `26,45,091/- by holding (i) that the six employees of the assessee actually work for the parent company M/s. Forbs & Company Ltd. and the parent company pays their salary in the form of reimbursement and (ii) that the entire arrangement has been made to claim expenses which are not otherwise allowable under the head income from house property and interest income. 4.1.2 The learned A.R. for the assessee was heard in support of the grounds raised and reiterated the submissions put forth before the learned CIT(A) vide letters dated 08.11.2013, 17.12.2012 and 09.01.2013 and also filed a paper book (pages 1 to 84) details which are certified to be filed either with the AO and or the learned CIT(A). The learned A.R. for the assessee drew the attention of the Bench to a copy of the Audit Report of the assessee-company in Form 3CD placed at pages 68 to 80 of the paper book and particularly at page 68 to claim that the assessee was in the business of ‘realty and rendering of professional services’. The learned A.R. for the assessee also referred to pages 60 and 65 of the paper book in an effort to show that the assessee had earned `26,45,091/- from rendering of services to its holding company Forbs & Company Ltd. and also to the computation of income for A.Y. 2009-10 filed with the revised return of income. It was contended that their six employees who worked for M/s. Forbs & Company Ltd. had rendered professional services for which they were reimbursed and this constituted business activity of the assessee Volkart Fleming Shipping & Services Ltd. carried out in the year under consideration and therefore the business losses claimed by the assessee ought to be allowed. It was lastly mentioned that except for this year no such disallowance has been made by the AO in the earlier or subsequent years. 4.2 Per contra, the learned D.R. for Revenue strongly supported the orders of the authorities below submitting that all the averments and submissions put forth by the assessee in the paper book (Pages 1 to 84) were considered by the authorities below while passing the impugned orders to hold that the assessee had carried out no business activity in this year and therefore the business loss claimed was not allowable. According to the AR all the assessee did was to get six persons who were on its roll on paper only to work for the parent company, who reimbursed the salary paid to them. No remuneration was paid to the assessee for alleged professional services rendered by the assessee nor was there any agreement between the assessee and the parent company for provision of professional charges. It is contended that these findings of fact by the authorities have not been controverted by the assessee with any material evidence. In respect of the assessee’s claim that no such disallowance was made either in the earlier or subsequent years by the Department and therefore no disallowance was called for in the year under consideration were irrelevant as in the earlier years the assessee was carrying on the business as a shipping agent and in the subsequent years there were agreements between the assessee and the parent company for provision of services at a fixed cost which was at cost plus a mark up thereon. The learned D.R. contended that the order of the learned CIT(A) on this issue ought to be upheld as the assessee’s submission that it recovers professional fees on an estimate basis goes to prove that the entire arrangement has been made to claim expenses which are otherwise not allowable under the head income from house property and interest income. 4.3.1 We have heard the rival contentions of both the parties and perused and carefully considered the material on record; including the submissions made in the paper book (pages 1 to 84) certified to have been made before Volkart Fleming Shipping & Services Ltd. the authorities below. From the details on record it is seen that the assessee declared business receipts of `26,45,091/- on account of alleged professional services rendered by its employees to its parent company. In our considered view the examination of the assessee’s claims by the authorities below revealed that the assessee did not actually provide any professional services at all, but six persons (General Manager, Manager, Executive, Manager, Asst. Manager, Asst. Manager and a Peon) who were employees of the assessee on paper but actually work for the parent company, Forbs & Company Ltd., who pays their salary in the form of reimbursement thereof through the assessee. There is admittedly no agreement between the assessee and its parent company, Forbs & Company Ltd. for the provision of professional services and the remuneration/charges payable thereof. We concur with the observation of the learned CIT(A) that the assessee’s submission that it recovers professional fees ‘on the basis of estimate done at the beginning of the year’ establishes that the entire arrangement between them was made to claim expenses which were otherwise not allowable under the head income from house property and interest income. The submissions that there has been no disallowance of such business loss in the earlier and subsequent years by the Department holds no water, since in the earlier years, the assessee was carrying on business as shipping agent, which business has since been merged with its parent company. In subsequent years, the learned A.R. for the assessee admitted that there were agreements between the assessee and its parent company for carrying on business on which we decline to comment as those years are not before us for adjudication. 4.3.2 In our view, the assessee has failed to controvert the adverse findings of the facts rendered by the authorities below. In the factual matrix of the case, as discussed above, we are of the considered view that the learned CIT(A) was right to hold that the assessee did not carry on any business activity in the nature of rendering professional services to its parent company as claimed and that the entire arrangement between them was with a view to claim expenses which are not otherwise allowable under the head income from house property and interest income. We, therefore, Volkart Fleming Shipping & Services Ltd. uphold the impugned order of the ld CIT(A) disallowing the assessee’s claim of business loss. Consequently, ground 1 (1 to 3) of the assessee’s appeal are dismissed.

5. Ground No. 2 (4 & 5): Disallowance of Expenses - `19,11,600/- 5.1 In this ground, the assessee contends that the learned CIT(A) erred in upholding the AO’s disallowance of expenses to `19,11,600/- against business income of the assessee which were in respect of day to day maintenance of the assessee. The learned A.R. for the assessee reiterated the submissions made before the authorities below vide letter dated 08.11.2013 and 17.12.2012 and the paper book (pages 1 to 84) which is certified as having been filed before the authorities below. It was submitted that the expenditure claimed was in respect of business activities and there was no claim of the same expenditure under the head income from house property. It was prayed that the assessee’s claim for allowing these business expenses be allowed. 5.2 Per contra, the learned D.R. for Revenue placed strong reliance on the findings rendered in the orders of the authorities below. The learned D.R. contended that once the authorities below had clearly established that the assessee had no business activity during the year under consideration, then consequently deduction of expenses claimed under the head business income are not allowable. The learned D.R. further contended that since the assessee was not able to controvert the above findings of the AO/learned CIT(A) that the assessee did not carry out any business activity during the year, its claim for being allowed deduction of the expenses in this regard are not tenable and the assessee’s ground is liable to be dismissed. 5.3.1 We have heard the rival contentions of both the parties and perused and carefully considered the material on record, including the submission made before the authorities below, before us and details filed in the assessee’s paper book. In paras 4.3.1 and 4.3.2 of this order (supra), we have upheld the factual findings of the learned CIT(A) that the assessee did not carry out any business activity in the year under consideration and