2012 (2) TMI 170 - AT - Income Tax

Foreign travel expenditure - Son of partner, technical person - AO disallowed expense being personal in nature - CIT(A) affirmed AO - Held That - Merely stating that the assessee has booked a stall and the sons of the partners were attending is not sufficient. The circumstances exhibits that the sons of partners were taken as those were in close relationship of partners and nothing to do with the business of the firm. Decided against assesee. Repair on rental building - Capital OR Revenue Expenditure - Held That - In view of Madras Auto Service (P.) Ltd. (1998 - TMI - 5686 - SUPREME Court), repairing expenses carried out on a rental building are revenue in nature. Payment for Labour Charges - job work for sister concern - Held That - Job work done is almost 5 times than the actual production. This clearly shows that the alleged job work charges have been paid to sister concerns merely with a view to avoid payment of legitimate taxes. Thus provisions of 40(A)(2) are clearly applicable.

Issues Involved:
1. General ground regarding the assessment order under section 143(3).
2. Addition of Rs. 84,250/- out of foreign tour expenses.
3. Treatment of factory repairing expenses as capital expenditure.
4. Disallowance of Rs. 9,60,412/- under section 40A(2)(b) on account of labor charges.
5. 10% disallowance out of car repairing expenses, mobile expenses, and telephone expenses on account of personal use.

Issue-wise Analysis:

1. General Ground Regarding the Assessment Order Under Section 143(3):
The first ground was general and related to the assessment order under section 143(3) being bad in law. This ground was not pressed by the appellant and was therefore dismissed.

2. Addition of Rs. 84,250/- Out of Foreign Tour Expenses:
The assessee claimed foreign tour expenses incurred on Shri Chetan J. Buch and Milan P. Buch, sons of the partners. The Assessing Officer (AO) disallowed the expenses on the basis that these individuals were neither partners nor employees of the firm, categorizing the expenses as personal. The Commissioner of Income Tax (Appeals) [CIT(A)] upheld the disallowance, noting that the individuals were taken abroad due to their relationship with the partners rather than for business purposes. The Tribunal confirmed the CIT(A)'s order, stating that the assessee failed to provide sufficient evidence to prove that the expenses were for business purposes.

3. Treatment of Factory Repairing Expenses as Capital Expenditure:
The AO observed that the assessee claimed Rs. 11,24,283/- for factory repairing expenses, which included costs for materials and labor for construction. The AO treated 80% of these expenses as capital in nature, allowing only 20% as revenue expenses. The CIT(A) further modified this, treating the entire amount as capital expenditure and allowing only depreciation. The Tribunal, however, found that the repairs were necessary due to earthquake damage and normal wear and tear on a rented building, and thus, should be treated as revenue expenditure. The Tribunal directed the AO to allow the expenses as revenue in nature and withdraw any depreciation allowed.

4. Disallowance of Rs. 9,60,412/- Under Section 40A(2)(b) on Account of Labor Charges:
The AO disallowed 9/10th of the labor charges claimed for job work done by sister concerns, suspecting the payments as excessive and unreasonable under section 40A(2)(b). The CIT(A) confirmed the disallowance, noting discrepancies in the job work bills and production data, suggesting the payments were made to avoid taxes. The Tribunal, however, held that the AO failed to compare the expenses with the fair market value of the services, a requirement under section 40A(2)(a). Without such comparison, the disallowance was deemed incorrect, and the Tribunal allowed the assessee's claim.

5. 10% Disallowance Out of Car Repairing Expenses, Mobile Expenses, and Telephone Expenses on Account of Personal Use:
This ground was not pressed by the appellant and was therefore dismissed.

Separate Judgments for Assessment Year 2006-07:

Factory Repairing Expenses:
For the assessment year 2006-07, the issue of factory repairing expenses amounting to Rs. 4,28,765/- was treated similarly to the previous year. Following the same detailed discussion, the Tribunal allowed the claim as revenue expenditure.

Disallowance of Foreign Travel Expenses:
The disallowance of Rs. 3,13,056/- for foreign travel expenses was confirmed by the CIT(A) based on identical facts from the previous year. The Tribunal upheld this disallowance, citing a lack of evidence to prove the expenses were for business purposes.

Conclusion:
The appeals for both assessment years 2005-06 and 2006-07 were partly allowed, with specific grounds being upheld or dismissed based on the detailed analysis provided.

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