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Income Tax Appellate Tribunal, KOLKATA ‘B’ BENCH, KOLKATA
Before: Shri P.M. Jagtap & Shri S.S. Viswanethra Ravi
Date of concluding the hearing : February 08, 2016 Date of pronouncing the order : February 10, 2016
O R D E R Per Shri P.M. Jagtap :- This appeal is preferred by the Revenue against the order of ld. Commissioner of Income Tax (Appeals)-XXXVI, Kolkata dated 06.12.2012 for the assessment year 2008-09.
At the outset, it is observed that there is a delay of 88 days on the part of the Revenue in filing this appeal before the Tribunal. In this regard, the Revenue has filed an application seeking condonation of the said delay and keeping in view the reasons given therein, we are of the view that there is a sufficient cause for the delay on the part of the Revenue in filing this appeal. We, therefore, condone the said delay and proceed to dispose of this appeal of the Revenue on merit. ./2013 Assessment year: 2008-2009 Page 2 of 8
In Ground No. 1, the Revenue has challenged the action of the ld. CIT(Appeals) in deleting the disallowance of Rs.25,50,000/- made by the Assessing Officer on account of incentives paid by the assessee to some doctors.
The assessee in the present case is a Company, which is engaged in the business of running Eye Hospital. The return of income for the year under consideration was filed by it on 30.09.2008 declaring total income of Rs.1,04,97,505/-. During the course of assessment proceedings, it was noticed by the Assessing Officer that the assessee has paid incentive of Rs.25,50,000/- to only five doctors out of 15 doctors employed by it. He also noted that the said incentive was paid only at the fag end of the previous year and that too without any basis. He, therefore, held that the incentive paid by the assessee was not for the purpose of its business and accordingly the incentive paid was disallowed by him.
The disallowance made by the Assessing Officer on account of incentive paid to the doctors was challenged by the assessee in an appeal filed before the ld. CIT(Appeals). During the course of appellate proceedings before the ld. CIT(Appeals), the following submissions were made on behalf of the assessee in support of its claim of deduction on account of incentive paid to the doctors:- “2.1 On page No. 2/3 of his order A.O. has given a list of Doctors including 5 doctors to whom incentives were paid totaling to Rs.25,50,000/-. The reasons given by A.O. for disallowance on page No. 3 of his order are summarized below:-
(i) Incentives were paid on the end of Financial Year on 29-03-2008. (ii)Incentives were not proportionate to the remuneration. (iii) No incentives were paid to 10 doctors out of 15 doctors. (iv) In a hospital the patients come automatically. ./2013 Assessment year: 2008-2009 Page 3 of 8
(v) (a) Specialist Doctors, according to agreement, may get excess remuneration or fee, but (b) Payment of incentives to some of the doctors is apparently not a business expenditure.
2.2 The reasons as detailed above speaks for themselves and will be dealt hereafter. Before doing so it is humbly submitted that A.O. has no authority to tell a businessmen as to when and to whom incentives are to be given and to whom not. It is the sole prerogative of a businessman to take decision considering number of factors and commercial expediency. Once it is proved that payments were made by a/c payees cheques, payees are I.T. assessee and have disclosed receipt of incentive in their respective return as income and paid due taxes thereof and finally tax at source on such payment has been deducted by paying concern. All these elements are present. In fact, A.O. is not denying the payment but disputes the necessity of payment Copies of TDS certificates issued to all 15 doctors are enclosed confirming that all are I.T. PAN holders and tax was deducted including on incentives.
2.3 Replies to A.O.'s reason vide para 2.1 above for this disallowance are given hereafter:- (i) It is but natural that incentives are decided after reviewing performance at the year end, number of patients attended, his popularity with and behaviour with patients etc.
(ii) Remuneration is a fixed monthly salary and cannot have relations with incentives amount to be decided by management. There is no such business theories or concept that incentives for specific reasons must be proportionate to remuneration.
(iii) As stated, incentives are decided after review of performance from all angles as dealt in (i) above in behalf. Naturally it cannot be for all the doctors but only for selected view in the judgement of management which cannot be challenged by only outsider including I.T. authorities.
(iv) A.O. is not correct. Yes, after a hospital earns goodwill having in business for a good number of years, patients will come to that hospital but ultimately it is the Doctor who is material who will treat the patient in Hospital. Hospitals simply provides infrastructure facilities for treatment and it is the doctor alone who decides as to in which hospital he will get admitted his patient. This hospital is only 2 years old to earn self goodwill. Doctors are more important.
./2013 Assessment year: 2008-2009 Page 4 of 8
(v) (a) The Doctors in case of eye ailment treatment are same except few one who are expert in lazor operation or FEFO operation. Specialists have their own fee structure and a Hospital need not enter into agreement. Doctors who were paid incentives were on the payroll of the Hospital and incentives were paid by decision of management to selected staff. Copy of Board of Directors resolution in this regard is enclosed. None of these doctors were relatives of the Directors to allege any favour. b) Assessee could not understand logic or reason behind A.O.'s finding that incentives to some of the Doctors is apparently not business expenditure as he has not given any reason or material as to why it is apparently not a business expenditure. There is no question of 'apparent' but in real payments were made and tax was deducted at source. Copies of Form No.16A of these doctors are enclosed and collectively marked as Annexure. 'B' as referred in paragraph 2.2 above”.
The above submissions made by the assessee were forwarded by the ld. CIT(Appeals) to the Assessing Officer for the later’s comments and after considering the comments offered by the Assessing Officer in his remand report as well as the counter comments offered by the assessee thereon, the ld. CIT(Appeals) deleted the disallowance made by the Assessing Officer on account of incentive paid by the assessee to doctors for the following reasons given in his impugned order:- “The submission of the AIR, ground of appeal, assessment order and remand report were duly considered. Appellant paid to some of the doctors for commercial expediency which is evident from the facts that professional receipts have increased from Rs. 2 crs to Rs.5.74 crs which is approx 200% jump as compared to last year. Similarly profit before tax has also jumped from Rs.17.77 Lakh to Rs.1.72 crs. This sharp increase in receipts and income is not possible without incentive to the professionals involved in this process. Appellant has justification for payment of these incentives, payment of which can't be decided by outsiders. It is sole prerogative of the appellant. Hence addition made by A.O. on account of incentive ofRs.25.5 Lakh is deleted. Appellant gets relief ofRs.25.5 Lakh”.
At the time of hearing before us, the ld. D.R. relied on the order of the Assessing Officer in support of the revenue’s case on this issue, while the ld. Counsel for the assessee has strongly supported the impugned order of the ld. CIT(Appeals) giving relief to the assessee on this issue. ./2013 Assessment year: 2008-2009 Page 5 of 8
We have considered the rival submissions and also perused the relevant material available on record. It is observed that all the objections raised by the Assessing Officer while making disallowance on account of incentive paid by the assessee to its doctor employees were properly met by the assessee by offering satisfactory explanation in respect of each and every objection. The submissions made by the assesese in this regard, which have been reproduced hereinabove, clearly show that the incentive paid by the assessee-company to some of its doctor employees was in the nature of expenditure wholly and exclusively incurred by the assessee for the purpose of its business of running Eye Hospital and there was no justification on the part of the Assessing Officer to disallow the same on the basis of relevant consideration. The increase in the professional receipts as well as the profit during the year under consideration completely justified the payment of incentive by the assessee-company to some of its doctor employees and since such incentive was paid as per the decision of the management taken on the basis of performance of its doctor employees, we are of the view that the ld. CIT(Appeals) was fully justified in deleting the disallowance made by the Assessing Officer on this issue. The impugned order of the ld. CIT(Appeals) giving relief to the assessee on this issue is, therefore, upheld dismissing the Ground No. 1 of the Revenue’s appeal.
In Ground No. 3, the Revenue has challenged the action of the ld. CIT(Appeals) in deleting the disallowance of Rs.17,67,239/- made by the Assessing Officer on account of interest expenditure.
During the course of assessment proceedings, it was noticed by the Assessing Officer that the assessee has paid interest of Rs.26,44,264/- on the loan amount of Rs.2,24,53,271/- from related Company. It was also noticed by the Assessing Officer that the assessee has cash and Bank balances of Rs.1,50,06,177/-. According to the Assessing Officer, the assessee-Company thus had taken the loan from a related Company ./2013 Assessment year: 2008-2009 Page 6 of 8 inspite of having sufficient resources of fund in order to claim interest expenditure thereby reducing the taxable profit. He, therefore, disallowed proportionate interest of Rs.17,67,239/- as attributable to the loan amount not utilized for the purpose of business.
The disallowance of Rs.17,67,239/- made by the Assessing Officer out of interest expenditure was challenged by the assessee in the appeal filed before the ld. CIT(Appeals) and the following submissions were made on behalf of the assessee before the ld. CIT(Appeals) in support of its claim on this issue. "Assessee had taken un-secured loan from its peer organization i.e. Disha Eye Hospital and Research Centre Pvt. Ltd., Barrackpore (DISHA) to built the hospital and secured loan from Axis Bank. Secured loan was sanctioned Rs.85,00,000/- vide letter dt. 22-02-07 and one of the condition was that Term deposit NSC/KVP worth Rs.1,00,00,000/- to be furnished. It was in this context that term deposit with Axis Bank were made and till loan is repaid assessee could not get back deposit with Axis· Bank fully until maturity. As to unsecured loan, copies of ledger accounts of assessee in D.E.H. & R.C. P. Ltd's book and their a/c in assessee's books are enclosed for three years including year under reference.
From these ledger accounts in the year 05-06 and 06-07 your Lordship can see that assessee formation charges were paid by them and deposit were made in Axis Bank (UTI Bank) towards disbursement of secured loan as referred above. In the year under reference Rs.10 lacs were refunded and earnings were utilized in acquisition of assets worth Rs.3,05,80,698/-. Hence question of re- payment of unsecured loan can never arise as there was no fund.
A.O. has totally confused himself only by seeing that there were loans taken and fixed deposits in bank. He has not gone in details as to why unsecured loan taken and used for getting secured loan sanctioned. The disallowance of interest Rs.17,72,239/- is wholly arbitrary. Without proper appreciation of fact and for the sake of some heavy addition as no fault was found with audited account”.
The above submissions made by the assessee were forwarded by the ld. CIT(Appeals) to the Assessing Officer for the later’s comments and after considering the comments offered by the Assessing Officer in the remand report as well as the counter comments offered by the assessee thereon, the ld. CIT(Appeals) deleted the disallowance made by the Assessing ./2013 Assessment year: 2008-2009 Page 7 of 8 Officer out of interest observing that there was no diversion of borrowed funds by the assessee-company for non-business purpose.
At the time of hearing before us, the ld. D.R. relied on the order of the Assessing Officer in support of the Revenue’s case on this issue, while the ld. Counsel for the assessee strongly supported the impugned order of the ld. CIT(Appeals) giving relief to the assessee on this issue.
We have considered the rival submissions and also perused the relevant material available on record. As found by the ld. CIT(Appeals) on the basis of relevant facts and figures submitted by the assessee, the interest bearing funds borrowed by the assessee-company from its sister concern were not utilized for any non-business purpose or for personal benefits. As further found by the ld. CIT(Appeals), all these borrowed funds were utilized by the assessee-company for the purpose of its business. At the time of hearing before us, the ld. D.R. has not been able to make out any case on behalf of the Revenue to dispute or controvert these findings of fact recorded by the ld. CIT(Appeals) in his impugned order while giving relief to the assessee on this issue. This being so, we find no justifiable reason to interfere with the impugned order of the ld. CIT(Appeals) on this issue and upholding the same, dismiss Ground No. 2 of the Revenue’s appeal.