2011 (1) TMI 55 - AT - Income Tax

Business expenditure - AO disallowed the claim for expenditure incurred on foreign visit of the partner of the firm on the ground that expenses incurred by the partner towards DRUPA 2004 fair for printing and packing industry in Germany was in no way related to the assessee s own business - CIT(A) deleted the disallowance on the ground that printing and packing was an integral part of business activity of the assessee and that the visit to the DRUPA Trade Fair by its partner was certainly of an advantage to the business of the firm - CIT(A) also found, that the expenditure incurred, was separately debited to the partner s capital account as personal expenditure - CIT(A) was not justified in deleting the entire disallowance - expenditure on visit to trade fair in Germany having been incurred for the business activities of the assessee is allowable, no material to take a different view in the matter - expenses incurred by the partner at places other than Germany, not allowable , no evidence that expenditure incurred at such places has any connection with the business of the assessee. Regarding disallowance u/s 40A(3) - There is nothing to suggest that the AO ever brought any material on record on this aspect in respect of the fair market value of the facilities, for which the payment had been made, before concluding that expenditure was excessive or unreasonable. We are of the opinion that disallowance under section 40A(2) is to be considered vis-a-vis the market value of the services or facilities or on fulfilment of any of the other ingredients mentioned hereinbefore and not the individual action of the assessee in charging or paying interest. Regarding Addition on account of suppressed GP - Since the AO had not recorded any findings for rejecting the book results and applying the gross profit rate of 26% in the year under consideration, we are of the opinion that the ld. CIT(A) was justified in deleting the addition. Even the Revenue have not placed before us any material controverting the aforesaid findings of facts recorded by the ld. CIT(A). If there was no challenge to the transactions represented in the books, then it is not open to revenue to contend that what is shown by the entries is not the real state of affairs.

Issues Involved:
1. Deletion of addition on account of low Gross Profit (GP) for AY 2002-03.
2. Invocation of the provisions of section 145(3) of the Income-tax Act, 1961 for AY 2002-03.
3. Deletion of addition on account of interest paid to partners under section 40A(2)(b) for AY 2005-06.
4. Deletion of addition on account of interest paid to depositors for AY 2005-06.
5. Deletion of addition on account of disallowance of foreign travel expenses for AY 2005-06.

Detailed Analysis:

Issue 1 & 2: Deletion of Addition on Account of Low GP and Invocation of Section 145(3) (AY 2002-03)
The Revenue contested the deletion of an addition of Rs. 13,33,320 on account of low GP by the CIT(A). The AO had noted a decline in the GP rate to 24.92% from 28.13% in the preceding year. The assessee explained the decline due to increased costs of raw tobacco and packing materials. The AO rejected the explanation, estimating the GP at 26% and adding Rs. 13,33,320 to the total income.

The CIT(A) found the addition unjustified, noting that the assessee logically explained the reasons for the fall in GP and no specific defects were pointed out in the books of accounts. The Tribunal upheld the CIT(A)'s decision, emphasizing that a lower GP rate alone does not justify an addition without supporting evidence. The Tribunal cited several precedents, including Aluminium Industries (P.) Ltd. v. CIT and Vikram Plastics, to reinforce that mere suspicion or low profit is insufficient for invoking section 145(3) without concrete evidence of discrepancies in the books of accounts. Consequently, the Tribunal dismissed ground Nos. 1 and 2.

Issue 3 & 4: Deletion of Addition on Account of Interest Paid to Partners and Depositors (AY 2005-06)
The AO disallowed Rs. 8,11,902 paid as interest to partners and Rs. 73,844 paid to depositors, deeming these payments excessive under section 40A(2)(b). The AO reasoned that the interest paid at 12% to partners and related entities was unreasonable compared to the 7% paid on trade deposits.

The CIT(A) disagreed, noting that the interest rate of 12% was within the limits prescribed under section 40(b) and justified by past practices. The Tribunal upheld the CIT(A)'s decision, clarifying that section 40A(2)(a) requires a finding that the expenditure is excessive or unreasonable in relation to the fair market value or business needs. The AO failed to provide such a finding. The Tribunal referenced Coronation Flour Mills v. ACIT and Upper India Steel Manufacturing & Engineering Co. (P.) Ltd. to support its position that section 40A(2)(a) cannot be invoked without substantial evidence of excessiveness or unreasonableness. Thus, ground Nos. 1 and 2 were dismissed.

Issue 5: Deletion of Addition on Account of Disallowance of Foreign Travel Expenses (AY 2005-06)
The AO disallowed Rs. 1,26,705 spent on foreign travel by a partner, arguing the expenses were not related to the assessee's business. The assessee contended that the partner attended an International Trade Fair relevant to their business, and non-business-related expenses were debited to the partner's capital account.

The CIT(A) accepted the assessee's explanation, noting that the AO did not provide evidence to show the expenses were personal. The Tribunal partially upheld the CIT(A)'s decision, agreeing that the expenses for the trade fair in Germany were business-related. However, it remanded the case to the AO to verify expenses incurred in other locations like Zurich, Geneva, and Paris, as there was no evidence connecting these to the business. The AO was directed to allow only the expenses related to the trade fair in Germany. Thus, ground No. 3 was partly allowed for statistical purposes.

Remaining Grounds
Ground Nos. 3 & 4 in the appeal for AY 2002-03 and ground Nos. 4 & 5 in the appeal for AY 2005-06, being mere prayers, were dismissed without separate adjudication.

Conclusion
The appeal for AY 2002-03 was dismissed, while the appeal for AY 2005-06 was partly allowed for statistical purposes. The Tribunal's decision emphasized the necessity of concrete evidence and logical reasoning in making additions and invoking specific sections of the Income-tax Act.

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