2012 (11) TMI 49 - AT - Income Tax

Adjustment on account of MODVET credit u/s 145A of the I.T. Act Held that - Difference in addition to inclusive of excise duty which have been confirmed by the CIT(A) but there is no difference in other years - addition on account of elements of tax duty, cess or fees paid in the sales, purchase and inventory is not justified Disallowance of customer loss - related to local party and foreign party - export sale was made through sister concern - claimed loss in November, 2004 and machinery was sold in 1998-99 but business loss was claimed in the year under consideration - transaction was related to sister concern who had exported the goods to Egypt Held that - Assessee has shown this sale transaction in income in earlier year or in current year as per Section 36(2) of the I.T. Act. The A.O. has not doubted the claim of the assessee and had not stated that these claims are bogus. The claim has been written off in the books of account. Law after 1st April, 1989, the assessee has to establish that debt was written off in the books of account not necessary to establish that in fact had become irrecoverable u/s 36(1)(vii) of I.T.A Act - customer loss in all three years are allowed subject to verify from the assessment record of M/s Himson Overseas Pvt. Ltd. that no deduction of same amount has been allowed by it s A.O Disallowances of 50% of erection expenses - expenses have gone up whereas turnover has gone down - work was completed by the sister concern Held that - A.O. had not brought on record any material for excessive payment u/s 40A(2)(b) of the Act made to M/s Himson Techno Services Pvt. Ltd. The A.O. had disallowed lump-sum expenses on estimate basis. These payments were for erection and technical work. The comparable rates were not available being an engineering work - addition deleted Addition u/s 41(1) of the I.T. Act - Addition on account of cessation of liability alleged that the assessee had shown creditor of Rs.37,25,695/- more than three years Held that - A.O. has not brought on record any evidence that the liability had been obtained by the assessee by way of remission or cessation. The burden of proof lies on the revenue. The appellant had filed confirmation of its sister concern - assessee has been showing these liabilities in balance sheet and same has not been written off addition deleted Addition u/s 40(a) - late payment of TDS Held that - Assessee had paid TDS late, not within the financial year, it means payment in next year. The act has been amended w.e.f. 01.04.2010 and a proviso has been inserted in Section 40(a)(ia) of the Act - Provided that where in respect of any such sum, tax has been deducted in any subsequent year, or has been deducted during the previous year but paid after the due date specified in sub-section (1) of section 139, such sum shall be allowed as a deduction in computing the income of the previous year in which such tax has been paid - A.O. is directed to verify the payments and allow the TDS payment Disallowances of expenses u/s 14A of the I.T. Act Held that - Assessee received dividend income and tax free bond income - A.O. disallowed 10% expenses out of administrative managerial expenses - CIT(A) had found 10% expenses in A.Y. 2005-06 and in A.Y. 2006-07 reasonable and confirmed the addition. In A.Y. 2007-08 and in A.Y. 2008-09 he also confirmed addition made under Rule 8D - disallowance u/s 14A rightly confirmed

Summary

Issues Involved:
1. Disallowance of depreciation.
2. Estimation of gross profit.
3. Adjustment u/s 145A of the Income Tax Act.
4. Disallowance of customer loss.
5. Late payment of PF and ESI.
6. Disallowance u/s 40(a) for late payment of TDS.
7. Prior period expenses.
8. Disallowance u/s 14A.
9. Cessation of liability.
10. Erection expenses.
11. Carry forward of long-term loss.
12. Technical know-how fees.
13. Charging of interest u/s 234B and u/s 234D.

Detailed Analysis:

1. Disallowance of Depreciation:
The Tribunal upheld the revenue's stance on disallowance of depreciation in respect of subsidy amounts received towards plant and machinery. This was based on the ITAT's decision in the assessee's own case for A.Y. 2003-04. Consequently, this ground of appeal was decided in favor of the revenue and dismissed against the assessee for all the years.

2. Estimation of Gross Profit:
The Tribunal examined the deletion of gross profit (G.P.) additions by the CIT(A) for various assessment years. The Assessing Officer (A.O.) had rejected the books of accounts u/s 145(3) due to incomplete stock details, non-maintenance of day-to-day quantity-wise details, and discrepancies in accounts. The CIT(A) found that the G.P. rate declared by the assessee was higher than the previous year, and no specific expenses or purchases were found unvouched. The Tribunal confirmed the CIT(A)'s decision to delete the G.P. additions, noting that the A.O. failed to substantiate the additions with concrete evidence.

3. Adjustment u/s 145A:
The Tribunal addressed the adjustments on account of MODVAT credit u/s 145A. The A.O. admitted minor differences in the remand report, which were confirmed by the CIT(A). The Tribunal upheld the CIT(A)'s decision, finding no justification for further additions on account of elements of tax duty, cess, or fees paid in the sales, purchase, and inventory.

4. Disallowance of Customer Loss:
The Tribunal reviewed the disallowance of customer losses claimed by the assessee. The CIT(A) allowed the claims, noting that the assessee had fulfilled the conditions of Section 36(1)(vii) r.w.s. Section 36(2)(i) for bad debts and provided sufficient evidence for business losses. The Tribunal upheld the CIT(A)'s decision, subject to verification that the same amount was not claimed by the sister concern, Himson Overseas Pvt. Ltd.

5. Late Payment of PF and ESI:
The Tribunal considered the disallowance of PF and ESI payments made after the due date but before the filing of the return. The A.O. and CIT(A) had disallowed these payments based on decisions not allowing the grace period. The Tribunal directed the A.O. to verify the payments and allow them if made before the due date of filing the return, setting aside the disallowance.

6. Disallowance u/s 40(a) for Late Payment of TDS:
The Tribunal addressed the disallowance of expenses due to late payment of TDS. The CIT(A) had partly allowed the appeal, reducing the disallowance for payments made in March 2005. The Tribunal directed the A.O. to verify the payments and allow the TDS payment as per the amended provisions of Section 40(a)(ia).

7. Prior Period Expenses:
The issue of prior period expenses was not pressed by the assessee, and the appeal on this ground was dismissed.

8. Disallowance u/s 14A:
The Tribunal upheld the disallowance of expenses u/s 14A for earning exempt income. The A.O. had disallowed reasonable expenses, and the CIT(A) confirmed these disallowances. The Tribunal found no reason to intervene in the findings of the A.O. and CIT(A).

9. Cessation of Liability:
The Tribunal reviewed the addition on account of cessation of liability. The CIT(A) had deleted the addition, noting that the liabilities were shown as subsisting in the balance sheet and confirmed by the sister concern. The Tribunal upheld the CIT(A)'s decision, finding no evidence of remission or cessation of liability.

10. Erection Expenses:
The Tribunal examined the disallowance of erection expenses. The A.O. had disallowed 50% of the expenses, claiming they were not at market rates. The CIT(A) deleted the addition, noting that the A.O. failed to provide evidence of excessive payment. The Tribunal confirmed the CIT(A)'s decision.

11. Carry Forward of Long-Term Loss:
The issue of not allowing the carry forward of long-term loss was not pressed by the assessee, and the appeal on this ground was dismissed.

12. Technical Know-How Fees:
The Tribunal addressed the issue of technical know-how fees. The CIT(A) had dismissed the appeal, suggesting the assessee apply u/s 154. The Tribunal directed the A.O. to allow 1/6 expenses on account of technical know-how as per the ITAT's decision for A.Y. 2003-04.

13. Charging of Interest u/s 234B and u/s 234D:
The Tribunal noted that the issue of charging interest u/s 234B and u/s 234D was consequential to the other findings and directed the A.O. to calculate interest as per law.

Conclusion:
The Tribunal's judgment involved a detailed examination of multiple issues across various assessment years. The Tribunal upheld the CIT(A)'s decisions on several grounds, including gross profit estimation, customer loss, and cessation of liability, while directing the A.O. to verify and allow certain claims, such as PF and ESI payments and technical know-how fees. The appeals were partly allowed, with specific directions for verification and allowance of claims.