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Income Tax Appellate Tribunal, DELHI BENCH ‘G’: NEW DELHI
(Assessment Year: 2018-19) SNW Smith Consultant Private Limited, vs. DCIT, Central Circle 5, 112-GL, Antriksh Bhawan, New Delhi. 22, KG Marg, New Delhi – 110 001. (PAN : AAKCS4626B) (APPELLANT) (RESPONDENT) ASSESSEE BY : Ms. Hasneeta Matta, Advocate Shri Mahan Kalra, Advocate REVENUE BY : Shri Manish Gupta, Sr. DR Date of Hearing : 10.07.2025 Date of Order : 08.10.2025 O R D E R
PER S. RIFAUR RAHMAN, ACCOUNTANT MEMBER :
This appeal is filed by the assessee against the order of the ld. Commissioner of Income-tax (Appeals)-24, New Delhi (for short ‘ld. CIT (A)) for the Assessment Year 2018-19.
Brief facts of the case are, this is second round of appeal after setting aside the appeal preferred by the assessee to the file of the AO by the coordinate Bench vide to verify the expenditures claimed by the assessee even though there was no business income declared by the assessee. The AO issued notice under section 142(1) of the Income-tax Act, 1961 (for short ‘the Act’) to the assessee to furnish the following informations:- “1. Mode of communication with Rajesh Narain Gupta, Advocate. Please furnish evidence of communication dated 04.05.2017 and 19.05.2017.
2. You have furnished as copy of document which shows outsourcing of domestic and international trade operation by JMC Project (India) P. Ltd. Please furnish copy of MOM signed by the directors of M/s JMC and copy of agreement made between you and JMC.
3. Evidence of payment of expenditure.
Electricity/water bills for FY 2017-18 - 2018-19 other utility bills.
Total asset of Rs.12.7 lac and security expenses of Rs.8.66 lacs justify that business produce evidence."
In response, assessee has submitted as under and observations of the AO are also reproduced below :- “For query no.l dated 15.02.2022, the assessee submitted that "The discussions with Sh. Rajesh Narain Gupta were over the phone and meetings in person at his office premises." Rebuttal: The assessee has not submitted any evidence with regard to such vast legal documentation and preparation like visit evidence, stay evidence, any email evidence, any postage evidence, etc to ascertain that the statement and submission of the assessee is justified. Therefore, the expenses Incurred is not found justified in absence of evidence and justification. For query no.2 dated 15.02.2022, the assessee submitted that "It is respectfully submitted that during the year under consideration, a proposal was submitted to M/s. JMC Project (India) P. Ltd. and the work engagement was under discussion. Your goodself would appreciate that as evidenced, SNW was evaluating various business opportunities of which, proposal to JMC was one such pursuit. The same, however, did not materialize into a work engagement." Rebuttal: In the query the 'assessee was asked to furnish copy of MOM signed by the directors of M/s JMC and copy of agreement made between you and JMC. The assessee could not submit any copy. of agreement or contract under which assessee is working and claiming expenditure. Without evidence and any suitable contract/agreement the assessee is not liable to claim expenditure. Rebuttal for reply to the query no.3 dated 15.02.2022, the evidence and reply submitted by the assessee is not acceptable in view of the fact? that there was no such work happened in the subject year under consideration. Rebuttal for reply to the query no.4 & 5 dated 15.02.2022, The assessee has not submitted any electricity bill/utility bills etc as evidence that the assessee's business was running during the year consideration. The assessee has submitted that it did not incur any rent/electricity/water charges for FY 2017- 18 & FY 2018-19 as it was using a part of the business premises of its associate concern, viz., Basement of Thapar House. In this facts and circumstances, the security charges claimed by the assessee are not fount allowable.”
4. With the above observation, the AO sustained the additions originally made by the AO in the original proceedings to the extent of Rs.18,66,568/-.
5. Aggrieved with the above order, assessee preferred an appeal before the ld. CIT (A)-24, New Delhi and after considering the detailed submissions, ld. CIT (A) dismissed the grounds raised by the assessee with the following observations :- “4.1.12 Therefore, the key issues which were required to be addressed by the Assessing Officer were whether the business has ceased to exist or not, whether the legal expenditure was made wholly and exclusively for the purposes of business and whether the security charges were paid for the premises which were use for the purpose of business. It is observed that no new and relevant document/material was filed by the appellant to substantiate its claim before the Assessing Officer and the undersigned during the course of proceedings in compliance to the directions of IT AT. In my opinion, the Assessing Officer has correctly dealt with the directions of the ITA T based on the submissions made and material provided by the appellant during the course of current proceedings. Both the additions are being discussed in the following paragraphs. 4.1.13 With regard to the claim of expenditure namely business expense of Rs.10,00,000 being Lawyer's Fees incurred for obtaining a legal Sh. Rajesh Narain Gupta, Advocate amounting to Rs.10,00,000/- towards professional fees for providing legal opinion and drafting of various legal documents. This bill does not specify the nature of legal opinion and the details of legal documents. The appellant could not provide any evidence during the assessment or the appellate proceedings that the business of the appellant company had not ceased to exist during the year. If there was no business then there cannot be any justification for seeking legal opinion and drafting of legal documents. The appellant did not provide the nature of legal opinion, copy of the same, purpose of such opinion and also no details regarding the drafted legal documents was made available during the proceedings. In the absence of such documentation it cannot be established that such legal expenditure has been made wholly and exclusively for the purposes of business and therefore such legal expenditure of Rs.10,00,000/- cannot be considered as allowable. In view of the above, there is no justification to interfere with the order of the Assessing Officer and the disallowance made by the Assessing Officer is confirmed. 4.1.14 With regard to the business expense of Rs.8,66,568/-, being Security Charges incurred for security services to safeguard the assessee's business assets at its office the appellant had provided copy of the bills by the security agency. However, the appellant could not provide any evidence during the assessment or the appellate proceedings that the business, of the appellant company had not ceased to exist during the year. The Assessing Officer had observed that the assessee has not submitted any electricity bill/utility bills etc as evidence that the assessee's business was running during the year consideration. The assessee has submitted that it did not incur any rent/electricity/water charges for FY 20 17 -18 & FY 20 18-19 as it was using a part of the business premises of its associate concern, viz., Basement of Thapar House. It is not understood as to why the appellant company would pay for security of a premise which does not belong to it and also whose rent/electricity/water charges are not being paid by it. Further, it is observed that the total asset of the appellant company were only Rs. 12.7 lakhs and security expenses of Rs. 8.66 lakhs were allegedly made by the appellant company to safeguard them. The appellant during the course of assessment and the appellate proceedings could not prove that the business of the appellant company had not ceased to exist during the year and the expenditure has been made wholly and exclusively for the purposes of business and therefore the business expense of Rs.8,66,568/-, being Security Charges incurred cannot be considered as allowable. In view of the above, there is no justification to interfere with the order of the Assessing Officer and the disallowance made by the Assessing Officer is confirmed. Accordingly, Ground Nos. 1 to 5 of appeal are dismissed.”
6. Aggrieved with the above order, assessee is in appeal before us raising following grounds of appeal :-
1. That on the facts and circumstances of the case and in law, the order dated 09.03.2022 passed u/s.254 r.w.s. 143(3) of the Income-tax Act, 1961 ("Act") by the DCIT, Central Circle 5 and affirmed vide order dated 03.08.2023 by the CIT(A)-24, Delhi ("AO/Ld. CIT(A)"] is bad in law and liable to be Quashed.
2. That on the facts and circumstances of the case and in law, the Ld. CIT(A) has erred in not appreciating the principles of commercial expediency of the following genuine business expenses incurred wholly and exclusively for purposes of business with intent to revive the same, allowable u/s.37 of the Act even if no, revenue from business activities was generated during the year under consideration, disregarding the facts and explanations placed on record by the assessee: a. Rs. 10 lacs on account of lawyer fees. b. Rs.8.66 lacs, on account of security charges incurred for safeguarding business premises and assets located therein.”
7. At the time of hearing, ld. AR submitted as under ;- “1.3. The Appellant is an Indian private limited company incorporated in 2006 as SNG Realty Consultants Pvt Ltd. It is engaged in the business activities of trade finance including consultancy and management services related thereto. It was acquired by the Adam Smith group in 2011, with a significant part of it's business being on referral from the flagship company. The Company has been filing ITRs and paying taxes. 1.4 The Company has a net worth of approximately Rs.1 00 lakhs. The expenses have been accepted in assessments of ITRs for AY 12-13 to AY 17-
18. For instance, in 2015, the Company clocked it's highest revenues of about Rs.140 lakhs and incurred expenses of approximately Rs.80 lakhs, which have not been disputed. 1.5. Since 2016, the Company witnessed declining revenues. Given the rapid developments in ways of doing business, the financial services landscape has also been evolving. With a view to stay meaningful in the financial sector, the Company contemplated a business revamp and/or business re-organisation 1.6. In May 2017, the Company immediately minimised it's expenses to necessary, while evaluating business opportunities and licensing requirements for Trade Finance, like, BFC, FDI etc. to have a meaningful growth in the financial sector. For this, the Company consulted a Senior Lawyer, Sh. Rajesh Narain Gupta, founding Partner of SNG & Partners.
1.7 A snapshot of the expenses in the P&L A/c and ITR Computation is as A snapshot of the expenses in the P&L A/c and ITR Computation is as A snapshot of the expenses in the P&L A/c and ITR Computation is as under:- Business not abandoned Business not abandoned 1.8. Admittedly there was a lul Admittedly there was a lull in the revenue earnings of the business but l in the revenue earnings of the business but the business activities had not ceased during the year under consideration. the business activities had not ceased during the year under consideration. the business activities had not ceased during the year under consideration. Through it's Director, the Company consulted a Senior Lawyer, copy of legal Through it's Director, the Company consulted a Senior Lawyer, copy of legal Through it's Director, the Company consulted a Senior Lawyer, copy of legal opinion placed at pages 70 to 189 of the paperbook, and ma opinion placed at pages 70 to 189 of the paperbook, and ma opinion placed at pages 70 to 189 of the paperbook, and made some business proposals to prospective clients, copies placed at pages 48 proposals to prospective clients, copies placed at pages 48 proposals to prospective clients, copies placed at pages 48-57; 58-67 and 68- 69, of the paperbook respectively. 69, of the paperbook respectively.
2. Revenue's Contentions Revenue's Contentions 2.1. Not all expenses have been disallowed and/or disputed by the Ld. AO, Not all expenses have been disallowed and/or disputed by the Ld. AO, Not all expenses have been disallowed and/or disputed by the Ld. AO, as sumrnarised in the as sumrnarised in the Table in para 1.7 above. The expenses disallowed are: Table in para 1.7 above. The expenses disallowed are: • Legal Fees: Rs.10,00,000 • Security Charges: Rs.8,66,568/- 2.2. The reasons for the disallowances by the Ld. AO are summarized as 2.2. The reasons for the disallowances by the Ld. AO are summarized as 2.2. The reasons for the disallowances by the Ld. AO are summarized as under:
Reasons for Disallowance Reference Conclusions by the Ld. AO vide order dated 30.12.2019: "Since the financials suggest there was no business during Page 257 of the year” the paperbook "Further, no rent was being paid since no space was Para 4 occupied by assessee company" Consequent to remand, highlights of Ld. AO's order dated 09.03.2022: Presumption that the Lawyer Fees is for litigation. The Page 3 of the Ld. AO did not confront the assessee on any query Ld. Assessing concerning such presumption. Officer’s order appended to Form 36 No query was raised regarding Security Charges Conclusion Para 4 of the "4. In view of the above facts of the case and submission Ld. AO's order of the assessee, the appellant did not have any business appended to receipts during the year. Further, the assessee has not its Form 36. own premise to its business and it has not incurred any utility expense which is necessary for running business ... " Ld. CIT(A) has affirmed the disallowances by the Ld. AO in both orders.
3. Submissions Prudence 3.1. It's a matter of record that the Company could not earn any revenue from operations during the year, having only interest income that was offered to tax. The Company moved it's office and belongings like a sets, computers, furniture, files etc., into a part of the Basement, Thapar House from the Mezzanine Floor, Thapar House on a temporary basis, accommodated by Adam Smith Associate Pvt Ltd. ("ASAPL"), a sister concern and flagship company of the Group. To a bid to reduce expenses, the Company did not compensate it's sister concern for such part of the premises made available to it. ASAPL used the Basement, Thapar House for it's records and accounting, having corporate offices in Le Meridien. 3.2. It is respectfully submitted that business operations is a wider term than business revenue. Business operations would include all such activities and expenses that are undertaken and incurred, to keep alive the corporate entity by maintaining it's existence and office, viz., statutory compliances and office location, assets and communication channels, while it tries to find ways to generate business prospects in periods of adverse market conditions and/or lull in business and/or evaluate revamp or reorganization of business. 3.3. During the year under consideration, the Company minimised its expenses, incurring only what it deemed essential for purposes of it's business, e.g., Statutory compliance costs like, ROC and Audit Fees, Telephone Depreciation and Professional fees, as it attempted to evaluate new business prospects in the area of trade finance with the help of legal advise. 3.4. It is settled law that absence of business receipts is not a ground for disallowance of expenditure u/s.37(1) of the Act. 3.5. Reliance is placed on the decision of the Hon'ble High Court of Madras in the case of L. Ve. Vairavan Chettiar v. CIT [1969] 72 ITR 114 (Madras) [09-04-1965], wherein regarding allowability of business expenses, the Hon'ble Court has noted as under: The company may not obtain or be able to execute a single business contract for months and yet it may be deemed to carry on its business, if during the period of lull and inactivity it is kept alive and if it retains its registered office and holds meetings. It is not necessary that a business to be in existence should have work all the time. There may be long intervals or inactivity and a concern may still be a going concern, though it may or some time be quiet and dormant. The mere fact that a businessman has not been able to obtain a contract and the business has for some time been in that sense dormant would not mean that it has ceased to exist, if the assessee continues to maintain an establishment and incur expenses in the expectation that the work would come and the business would be successful. How long he shall remain il1 the hope and in what manner he must carry on his work to gain success is primarily his own concern. The mere (act that (or some time he is not able to secure a contract or do the work which he set out to do should not disqualify him from pleading that the expenditure that he had incurred was expended for the purpose of his business. 3.6. The above ratio has been followed by this Hon'ble jurisdictional Tribunal in a plethora of cases, e.g., Hon'ble Delhi Tribunal in ITO v. Mokul Finance (P) Ltd. [2009] 29 SOT 11 (Delhi) (URO); Hon'ble Delhi Tribunal in DCIT v. NCR Business Park (P.) Ltd [2022J 141 taxmann.com 563 (Delhi - Trib.).
4. Key issues in appeal Lawyer Fees - not for litigation but Advisory and drafting of proposals 4.1. The Ld. AO/CIT(A) have disallowed two expenses. one, on account of Lawyers fees towards seeking legal guidance/opinion (pages 70 to 189 of the paperbook) on applicable laws and structures for NBFC and FDI being contemplated by the assessee company. Please see page 72 of the paperbook. Mr Rajesh Narain Gupta is a Senior Founding Partner of S G & Partners Advocates & Solicitors, headquartered in Mumbai. SNG also has offices in Delhi, including Bengali Marker'. The Director of the Company reached out to Mr Rajesh Narain Gupta over telephone and/or in person meetings during his visits to Delhi.
Ld. AO misconstrued Lawyer Fees as Fees for purported Litigation by Ld. AO 4.2. The Ld AO has inadvertently misconstrued the Lawyer Fees as being towards litigation. Incidentally, the Ld. AO did not query the assessee on these presumptions during the course of the hearing, his query being confined to "mode of communication" with the Lawyer. Please see pages 37 and 38 - 47 of the Paperbook, being the query notice and the response thereto, respectively. 4.3. The engagement of the lawyer was for advice and guidance on financial laws to evaluate business options including approval/licencing requirements for NBFC and FDI etc. The same was duly submitted. along with copy of the legal opinion and client proposals. Copies placed at pages 70-189; 48-57; 58-67 and 68-69 of the paperbook, respectively. Security Charges 4.4. The other expense is on account of Security Charges for one guard posted at the Thapar House. As the appellant continued to be at Thapar House, the Security Guard also helped be the communication bridge for the company besides attending to the appellant's belongings. The same security agency has been engaged year on year from the years 2012 to 2017. The Security Charges have been accepted in all prior AYs, including A Ys in which loss ITRs have been filed. The Ld. AO/CIT(A) have held that as the Company did not own the premises and did not pay utility charges, the business was not carried out and hence security expense disallowed.
5. Facts on record and not in dispute 5.1. The disallowed expenses arc genuine, not bogus. 5.2. The disallowed expenses are neither capital nor personal in nature. 5.3. The audited books of accounts and financial statements have not been rejected 5.4. The assessee is a Going Concern and there is no qualification by the Auditors 5.5. The assessee complied with statutory compliances with the MCA/ROC demonstrating that the assessee was maintaining it's establishment. These expenses have been allowed.
5.6. Telephone expenses have also been allowed. The acceptance/allowance by the Ld. AO of the above business expenses (in paras 5.5 & 5.6 above) demonstrates that the Ld. AO accepted that the assessee has not abandoned the business and is carrying on business activities.
No finding by the Ld. AO that the business has been abandoned and/or that the expenses are not genuine and/or of a capital/personal nature 6.1. It is respectfully submitted that the Ld. AO/CTT(A) have primarily based the disallowances on there being no business activity resulting in receipts/income for the year under consideration. However, there is no finding nor anything brought on record to evidence that the assessee's business has ceased for good and/or that the expenses do not satisfy the test of allowability u/s.37(1) of the Act, viz., that the expenses are not genuine and/or of a capital/personal nature and/or not wholly and exclusively incurred for purposes of business.
Legal Position - Allowability of expenses 7.1. Section 37(1) of the Act is concerned with 'any expenditure' (not being expenditure in the sections 30 to 36) and not being in the nature of capital expenditure or personal expenses of the assessee but laid out or expended wholly and exclusively for the purpose of business of the assessee. 7.2. In the present case, there is no finding by the Ld. AO that the expenses were capital and/or personal in nature. Nor is there any finding that the expenses are not genuine/actually incurred wholly and exclusively for purposes of business. 7.3. The assessee has demonstrated prudence and cut down all possible expenses, incurring only what it deemed as important for it's business in the year under consideration. The Director took on the larger task of exploring and pursuing business options in Trade Finance. The prudence of the Company may further be noted that in the preceding year (A Y 17-18), the Director was paid Remuneration of Rs.15,00,000. Despite doing all the running around, no salary/remuneration has been paid to the Director in the year under consideration. Copy of the Assessment Order u/s.153A for AY 17-J 8 is enclosed as Annexure 1, wherein the returned income has been accepted.”
On the other hand, ld. DR of the Revenue relied on the findings of the lower authorities.
Considered the rival submissions and material placed on record. We observe that AO has disallowed expenditures claimed by the assessee Rajesh Narain Gupta. He observed from the financial statements submitted by the assessee that there was no business during the year, however assessee has claimed abovesaid expenditure. Further AO observed that there was no rent paid by the assessee, why the amount claimed on expenses of security service charges be allowed. Further assessee has not explained requirement to make such professional charges. Accordingly, the same was disallowed. In the earlier proceedings, coordinate Bench has remitted the matter back to the AO to verify the claim of the assessee with required documentation. After considering the submissions of both the parties, we observe that no doubt assessee has not declared any revenue from the operation during the year, however claimed other expenses to the extent of Rs.22,55,748/- which includes security charges and professional charges to the extent of Rs.18,66,568/-. At the same time, we also observe that in the previous assessment year, assessee has declared revenue from operation and also declared similar expenditures. During the year, it is brought to our notice that since there was no revenue generated this year and considering the financial difficulties, the assessee has moved its office to its sister concern and operated from there. It is also fact on record that no doubt there was no business carried on by the assessee during the year, however assessee has continued to maintain the establishment and not closed the business. Since there was no revenue declared by the assessee, it does not mean that there would not be any establishment expenditure. The main expenditure incurred by the assessee which is disputed before us is security charges. In support of the same, the assessee has filed tax invoices of G4S Secure Solutions (India) Private Limited for the year under consideration declaring the services at address SNF Realty Consultants Pvt. Ltd., Gate No.1 Mezzanine Floor, Central Wing, Thapar House, Janpath, New Delhi. Since tax invoice was issued by third party for the services provided by them at the address of the sister concern where the assessee has claimed to have continued the business, therefore, we are inclined to allow the same.
With regard to professional charges paid to Rajesh Narain Gupta for an amount of Rs.10 lakhs for providing legal opinion and drafting of various legal documents, after due consideration, we observe that the assessee has filed invoice from Rajesh Narain Gupta. Before us, assessee has submitted copy of legal opinion from pages 70 to 189 and also ledger account of making payment of Rs.10 lakhs after TDS. After considering the details submitted before us, we observe that no doubt the assessee has no business during the year however taken legal opinion on various issues from Rajesh. It is not clear for what purposes these legal opinion were obtained from him. There seems to be certain legal opinion obtained on trade finance in import and export. It is not clear what way this opinion is relevant for the business of the assessee and the main business of the assessee is providing consultancy services. We are not sure for what purposes the above legal services are obtained by the assessee during the year. Considering the overall facts on record, since the assessee failed to submit the reasonable grounds for taking legal opinion and payment of such huge fees without there being any consultancy income to the assessee itself, therefore, we are inclined to allow 50% of the expenditure claimed by the assessee. Accordingly, this ground is partly allowed.
In the result, the appeal filed by the assessee is partly allowed. Order pronounced in the open court on this 8TH day of October, 2025.