2011 (4) TMI 877 - AT - Income Tax

Addition of mark up of 8 per cent of the cost - cost sharing arrangement - Held that - In order to decide as to whether it was merely a cost sharing arrangement or the payments were made in the course of rendering services by the assessee to affiliates need to be decided after examining the various aspects of the matter and various services undertaken by the assessee vis-a-vis the nature and purpose of the alleged payment made for and on behalf of BGLNG by the assessee. The terms and conditions of the service agreement dated 23rd August, 2002 between the assessee and BG Asia Pacific Holdings Pte. Ltd. (Singapore) need to be examined in the light of nature of expenses disbursed by the assessee - restore the matter back to the file of the AO for further examination and verification. Entertainment expenses and staff function expenses - Held that - It is well settled that expenditure incurred by the company on making gifts to employees and hosting dinner at a farewell party is purely on commercial consideration and of business expediency to maintain healthy relationship between the company and its staff - Decided in favor of the assessee Telephone expense to director s wife - Held that - Assessee has not been able to establish as to how the payment made towards telephone expenses of directors wives incurred voluntarily by the company can be said to be on the ground of commercial expediency and facilitating the carrying on of the business of the assessee - in favor of the assessee Business development expenses - Held that - Nowadays, it is not uncommon that lunches and dinners are being arranged at directors house where the customers of the company are invited to develop cordial relations with them - In this case, the amount is very nominal and it has not been proved that the parties were not arranged by the company but it was a personal party of a director - Decided in favor of the assessee

Summary

Issues Involved:
1. Addition of mark-up to the returned income for costs incurred on behalf of an associate enterprise.
2. Disallowance of entertainment and staff function expenses.
3. Disallowance of expenses paid to specified persons under section 40A(2)(b).
4. Disallowance of alleged business development expenses.

Issue-wise Detailed Analysis:

1. Addition of Mark-up to the Returned Income:
The primary issue revolves around the addition of a mark-up of Rs.25,82,578 and Rs.20,87,572 for the assessment years 2002-03 and 2003-04 respectively. The Assessing Officer (AO) added an 8% mark-up on the costs incurred by the assessee on behalf of BG Pipavav LNG Pvt. Ltd. (BGLNG), treating it as income from services rendered. The assessee contended that it was a cost-sharing arrangement and not a service rendered, hence no mark-up was applicable. The AO rejected this plea, stating that the transaction fell within the ambit of section 92 and required a mark-up. The CIT(A) upheld the AO's decision, noting that the nature of the transaction was indeed service rendering, not cost-sharing. The Tribunal found that the nature and purpose of the expenses incurred needed further examination to determine if they were indeed part of a cost-sharing arrangement or related to services rendered. The matter was remanded back to the AO for fresh adjudication with directions to examine the nature of the expenses and the terms of the service agreement.

2. Disallowance of Entertainment and Staff Function Expenses:
The AO disallowed Rs.2,98,431 claimed as entertainment and staff function expenses, deeming them personal and not wholly for business purposes. The CIT(A) upheld this disallowance, doubting the inclusion of all staff levels in such events. The Tribunal, however, noted that such expenses are common in business for staff welfare and maintaining healthy relationships. Given the nominal amount relative to the total revenue, the Tribunal allowed the expenses, reversing the disallowance.

3. Disallowance of Expenses Paid to Specified Persons under Section 40A(2)(b):
The AO disallowed Rs.68,378 paid for cell phone expenses of directors' spouses, asserting no business connection. The CIT(A) upheld this disallowance. The Tribunal agreed, finding no commercial expediency or business facilitation in such payments, thus confirming the disallowance.

4. Disallowance of Alleged Business Development Expenses:
For the assessment year 2003-04, the AO disallowed Rs.1,04,317 spent on parties at directors' residences, considering them personal. The CIT(A) confirmed this disallowance. The Tribunal, however, noted that such expenses are nominal and common for maintaining business relationships. Given the context and nominal amount, the Tribunal allowed the expenses, reversing the disallowance.

Conclusion:
The Tribunal partly allowed the appeals for both assessment years, remanding the primary issue of mark-up addition back to the AO for fresh examination and allowing the claims for entertainment, staff function, and business development expenses while upholding the disallowance of cell phone expenses for directors' spouses.