2011 (7) TMI 539 - AT - Income Tax

Disallowance u/s 40A - Transport charges - Excessive or unreasonable expenses - Held that - As it is seen that on 8th July 2006 the market rate was Rs. 600 per 10 kilo litre whereas on 3rd July or 14th July 2006 the assessee has paid transport charges at Rs. 610/- per 10 kilo litre i.e. difference is only Rs. 10/- per kilo litre as compared to other transporters - However find that there is no material on record to show that on the same very date the lower market rate was prevailing against which the assessee has made the higher payment. AO was required to compare the said price which prevailed in the local market on the same date which he failed to do so - In the absence thereof and keeping in view the observation of the CIT(A) that the difference is not very abnormal in the view that the ad hoc disallowance of 10% made by the AO reduced by the CIT(A) to 5% without bringing on record any supporting material is not sustainable in law and accordingly delete the disallowance made by the AO and sustained by the learned CIT(A) - The grounds taken by the assessee are therefore allowed.

Summary

Issues Involved:
1. Disallowance of hire charges paid to directors under Section 40A(2)(b) of the Income Tax Act.
2. Reasonableness and fairness of the payments made to directors compared to market rates.

Issue-wise Detailed Analysis:

1. Disallowance of hire charges paid to directors under Section 40A(2)(b) of the Income Tax Act:

The assessee company, engaged in the business of indenting, importing, distributing, and transporting petrochemical products, filed a return declaring a total income of Rs. 2,55,83,821/-. During the assessment proceedings, the Assessing Officer (AO) noticed that the assessee had paid hire charges totaling Rs. 76,40,770/- to three directors. The AO asked the assessee to furnish details and justification for these payments under Section 40A(2)(b), which concerns payments to related parties. The AO issued a show cause notice, indicating that 10% of the hire charges paid to the directors would be disallowed if the assessee failed to justify the payments. The assessee provided some details but did not furnish comparative proof of payments to other parties. Consequently, the AO disallowed Rs. 7,64,070/-, treating it as excessive and unreasonable under Section 40A(2)(b).

2. Reasonableness and fairness of the payments made to directors compared to market rates:

On appeal, the assessee argued that it had provided a comparative chart showing that the hire charges paid to the directors were similar to those paid to outside suppliers for the same services. The assessee also contended that the payments were at prevailing market rates and were tax-neutral since the directors were in the highest tax bracket, similar to the company. The CIT(A) reviewed the comparative chart and observed that the directors were sometimes paid Rs. 10/- more per kilo litre than other transporters. The CIT(A) deemed this difference not abnormal and reduced the disallowance from 10% to 5%.

The assessee further appealed, arguing that the CIT(A) was unjustified in sustaining a 5% disallowance. The assessee reiterated that the payments were reasonable and that the transactions were tax-neutral. The assessee cited the case of CIT v. Siya Ram Garg (HUF) to support their argument that no disallowance was warranted.

Upon hearing the submissions, the Tribunal noted that the AO has the authority to disallow expenses deemed excessive or unreasonable under Section 40A(2)(a). However, the Tribunal found that the AO had not provided evidence of lower market rates on the same dates as the payments to directors. The Tribunal agreed with the CIT(A) that the Rs. 10/- difference was not abnormal and concluded that the ad hoc disallowance of 10%, reduced to 5%, was unsustainable without supporting material. Therefore, the Tribunal deleted the disallowance made by the AO and sustained by the CIT(A).

Conclusion:

The Tribunal allowed the assessee's appeal, concluding that the disallowance of hire charges under Section 40A(2)(b) was not justified. The order was pronounced in open court on 22.7.2011.