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Income Tax Appellate Tribunal, DIVISION BENCH ‘B’, CHANDIGARH
Before: MS.DIVA SINGH & MS.ANNAPURNA GUPTA
IN THE INCOME TAX APPELLATE TRIBUNAL DIVISION BENCH ‘B’, CHANDIGARH BEFORE MS.DIVA SINGH, JUDICIAL MEMBER AND MS.ANNAPURNA GUPTA, ACCOUNTANT MEMBER
ITA No.498/Chd/2016 (Assessment Year : 2012-13) Sh.Parveen Kumar Aggarwal, Vs. The A.C.I.T., Prop. M/s M.K.Processing, Circle-1, C-234, Focal Point, Ludhiana. Ludhiana. PAN: ADDPA2087K (Appellant) (Respondent)
Appellant by : Shri Pankaj Bhalla, CA Respondent by : Shri Manjit Singh, Sr.DR Date of hearing : 24.01.2018 Date of Pronouncement : 20.04.2018
ORDER PER ANNAPURNA GUPTA, A.M.: This appeal has been preferred by the assessee against
the order of Ld. Commissioner of Income Tax(Appeals)-I,
Ludhiana (hereinafter referred to as (‘Ld.CIT(Appeals)’ dated
25.2.2016 relating to assessment year 2007-08.
The only effective grounds raised by the assessee are
ground Nos.2 and 3. Ground No.2 raised by the assessee
reads as under:
“2. That the Ld. C1T(A) erred in law & fact by confirming addition of Rs.1,11,700/- under head "Excise Duty debited to Purchase Yarn Account" without any base and reasons thereof. 2.1 That the Ld. CIT(A), Ludhiana erred in law & facts by adjudicating it to be a "prior period expense' ignoring fundamental Accounting Principles, conventions and standards. 2.2 That the contention of Ld. CIT(A) that the expense claimed is in violation of matching concept is bad in law &. facts of the case.
This ground of appeal relates to disallowance of
Rs.1,11,700/- on account of claim of excise duty for
purchase of yarn. During the course of assessment
proceedings, the Assessing Officer noticed that the excise
duty receivable at Rs.1,11,700/- had been debited in the
purchase yarn account for the year and further noted that
the Tax Auditors had qualified their report with the remarks
that Excise Duty Receivable Rs.1,11,700/- relevant to
previous year had been debited in purchase yarn account
during the year since excise duty was abolished on cloth
w.e.f. 08.07.2004. The assessee was asked as to why this
excise duty irrecoverable, debited to purchase of yarn
account should not be added back to the income of the
assessee as this was an expenditure incurred not in the
relevant financial year. The Ld. counsel for assessee replied
that the payment of excise duty was made by the assessee
in the year 2003 on account of certain dispute with the
excise authorities and the payment of Rs.1,11,700/- was
made by the assessee under protest and further that since
this amount could not be recovered back from the Excise
Department therefore it had been charged to yarn account
as being irrecoverable. The Assessing Officer was not
satisfied with the reply of the assessee and made the
addition of Rs.1,11,700/- to the income of the assessee.
Before the Ld.CIT(Appeals), the assessee filed detailed
submissions reproduced at para 3.1 of the order submitting
that the excise duty was relatable to the impugned year
only since it was paid in advance as per guidelines of the
Excise Act to be adjusted against future excise duty liability
and since the impugned assessment year was the last year
of operation of the assessee firm, since it was acquired by a
company M/s M.K. Aggarwal Hosiery Pvt. Ltd. on 1.4.2007,
the excise duty was written off in the Profit & Loss Account
of the impugned year since no benefit of the same could
have been availed by the assessee thereafter. It was also
submitted that write off was as per the guidance note on
accrual basis of accounting issued by the Institute of
Chartered Accountants of India, as per which revenue was
required to be recognized as it is earned and costs are to be
matched either against the Revenue or against relevant time
period and further that the costs which are not charged to
income but are carried forward and kept under continuous
review and have lost their utility or power to generate
future revenue, are to be written off as a loss. The assessee
contended that since this cost of excise duty paid in earlier
year had lost its utility in the impugned year ,the same had
been rightly written off in the Profit and Loss account for
the year. The Ld.CIT(Appeals) dismissed all the contentions
of the assessee and upheld the disallowance made by the
AO in this regard, holding the expenses to be prior period
as under:
“3.2 I have considered that facts of the case, the basis of disallowance made by the Assessing Officer and the arguments of the AR during the course of the assessment as well as the appellate proceedings. The appellant has debited excise duty receivable amounting to Rs.1,11,700/- in the 'Purchase Yarn Account' since the amount could not be
recovered back from the excise department. The said amount pertains to F.Y 2002-03 which is in violation of matching principle of accountancy according to which expenditure has to be claimed in the year in which revenue is recognized. Further, 'purchase of yarn' account cannot be debited by an expenditure incurred earlier i.e. 4 years back. Thus, it is a prior period expense-not allowable in the year under consideration. Without prejudice to the same, as per provisions of the sec 28 to 44 of the Act, which deals with profits and gains of business and profession, excise duty irrecoverable does not constitute an expense allowable against profits and gains of business. Further, the said claim does not fall within the purview of the sub-sections 36 and 37 of the Act also. The case law relied upon by the appellant of the Hon'ble ITAT Chandigarh in the case of Mohan Spinning Mills vs ACIT in ITA No. 1212(Chd) of 2011 relates to Cenvat Credit and is distinguishable on facts. Therefore, the Assessing Officer was justified in disallowing the said amount of excise duty irrecoverable debited to purchase yarn account. This ground of appeal is dismissed.” 6. Before us, the Ld. counsel for assessee reiterated the
contentions made before the Ld.CIT(Appeals), while the Ld.
DR relied upon the order of the CIT(Appeals).
We have heard the contentions of both the parties and
have gone through the orders of the authorities below. We
find merit in the contention of the Ld. counsel for assessee.
It is not disputed that the impugned excise duty paid in
earlier years was paid in advance/protest to be adjusted
against future excise duty liability. The contention made in
this regard by the Ld. counsel for assessee time and again
before the lower authorities has not been controverted by
the Revenue before us. It is also not disputed that the
impugned year was the last year of operation of the
assessee firm. Contentions made in this regard by the Ld.
counsel for assessee have remained uncontroverted before
us. Thus, it stands to reason that the impugned excise of
Rs.1,11,700/-, had lost its utility to derive any benefit to
the assessee in the impugned year and therefore the
impugned excise duty crystallized as expense or loss of
the assessee in the impugned year only. It could not be
treated, therefore by any stretch of logic as a prior period
expenses. In fact, the preceding year in which the said
advance was made, the nature of the same was advance and
not expense or cost. The Revenue has not brought on record
anything in support of its claim to the contrary that the
expense had crystallized in the earlier year. Therefore, it
could not be said to be cost relatable to that year. It was
only in the impugned year when the said advance lost its
utility of deriving any benefit, since no further adjustment
of excise duty payable could be made against it as the
assessee firm had stopped its operation, that the said
advance got converted or crystallized into a loss or cost and
the point of time when this happened being the impugned
year, the cost is said to be relatable to the impugned year
and liable to be set off against the income of the impugned
year only. We, therefore, find no merit in the contention of
the Revenue that the said expenses related to earlier year
and thus was a prior period expense.
In view of the above, we hold that the excise duty
receivable of Rs.1,11,700/-, written off during the year,
was cost or expense of the impugned year and, therefore,
was to be allowed to be set off against the income of the
impugned year.
Ground of appeal No.2 raised by the assessee therefore
stands allowed.
Ground No.3 raised by the assessee reads as under:
“ 3. That the Ld. A.O. erred in law &. facts by confirming addition of Rs.75,000/- on account of interest disallowed on advance of Rs.5,00,000/- made to M/s. Shakti Dyeing & Bleaching House without any base & reasons thereof.” 10. This ground of appeal relates to addition of
Rs.1,95,000/- on account of interest free advance made.
During the course of assessment proceedings, the Assessing
Officer noticed that the assessee had given advances to M/s
Shakti Dyeing & Bleaching House and M/s Gaurav Fabrics
of Rs.5,00,000/- & Rs.8,00,000/- respectively for purchase
of plot. The assessee was asked to justify commercial
expediency for making the said advances. Due reply was
filed by the assessee. Not being satisfied with the same ,the
AO disallowed interest @ 15% of the given advances and
added back the same to the income of the assessee
amounting to Rs.1,95,000/-, by holding that there was no
commercial expediency regarding the advances given.
The matter was carried in appeal before the
Ld.CIT(Appeals) who held the advance made to M/s Shakti
Dyeing and Bleaching House to be commercially expedient
and justified and, therefore, deleted the disallowance of
interest relating to the same, while the advance made to
M/s Gaurav Fabrics was held to be unjustified and interest
paid relating to the same was held to be disallowable by the
CIT(Appeals).
Before us, the sole contention of the Ld. counsel for
assessee was that it had sufficient own funds to make
advance of Rs.5 lacs to M/s Gaurav Fabrics and in the light
of the same, the presumption was that the advance had
been made out of its own funds warranting no disallowance
of interest. Reliance was placed on a number of decisions
of the Hon'ble Jurisdictional High Court in the case of
Bright Enterprises Pvt. Ltd. vs CIT ,Jalandhar (2016) 381
ITR 107, CIT vs Kapsons Associates ITA No.354 of
2013(O&M) dt.4-8-2015.
The Ld. DR, on the other hand, stated that the advance
not being commercially expedient, disallowance of interest
u/s 36(1)(iii) of the Act had been rightly upheld by the
Ld.CIT(Appeals).
We have heard the rival contentions. We are in
agreement with the contentions of the Ld. counsel for
assessee that where sufficiency of own funds is
established, advance made are to be presumed to have been
made out of the interest free funds warranting no
disallowance of any interest u/s 36(1)(iii). Reliance placed
by the Ld.Counsel for the assessee in this regard on the
decisions of the Hon'ble Jurisdictional as cited above is apt.
Considering the same we find that in the present case this
contention though has been taken by the assessee before
the Ld.CIT(A) but has not been dealt with by him. The facts
relevant to the issue therefore, of availability of sufficient
funds has not been examined and verified by the lower
authorities. We, therefore, consider it fit to restore this
issue back to the file of the CIT(Appeals) to adjudicate the
issue afresh in the light of the proposition laid down by the
Hon'ble Jurisdictional High Court in the case of Bright
Enterprises & Kapson Associates(supra) and after duly
verifying the facts in the present case. We may add that
the assessee be given due opportunity of hearing in this
regard. This ground of appeal is, therefore, allowed for
statistical purposes.
In the result, the appeal of the assessee is allowed for
statistical purposes.
Order pronounced in the Open Court. Sd/- Sd/- (DIVA SINGH) (ANNAPURNA GUPTA) JUDICIAL MEMBER ACCOUNTANT MEMBER Dated : 20th April, 2018 *Rati* Copy to: 1. The Appellant 2. The Respondent 3. The CIT(A) 4. The CIT 5. The DR Assistant Registrar, ITAT, Chandigarh