2018 (4) TMI 1581 - AT - Income Tax

Disallowance under School Expenses - Held that - The expenses under CSR expenditure incurred by the assessee company as per the details provided is admissible expenses u/s.37(1) of the Act. Accordingly we set aside the order of CIT(A) on this ground and direct the AO to delete the addition. See NALCO case 2005 (11) TMI 483 - ITAT CUTTACK Addition made on subsidy income - assessment year selection - Held that - The contention of ld. AR that this subsidy as referred earlier in the AO s order has been offered in the assessment year 2009-2010, therefore, it has to be excluded in the current year but on perusal of the assessment order we found that the assessee could not produce any evidence or substantiated to have offered in the subsequent year. Therefore, we in the interest of substantial justice, remit this issue to the file of AO to examine as to whether the assessee has offered this income in the subsequent year as envisaged before us. Accordingly, we allow this ground for statistical purposes. Provision for Diminution of GOI Fertilizer Bonds - allowable busniss expenditure - Held that - As decided in DCM Shriram Consolidated Ltd. 2015 (12) TMI 1769 - DELHI HIGH COURT when the assessee had no option but to subscribe the securities if it wanted to continue to do business with the Government Departments, then the investments were thus, necessarily by way of commercial expediency for the purpose of carrying on the business. We set aside the order of lower authorities and direct the AO to delete the addition and allow this ground of appeal of the assessee. TDS u/s 195 - assessee failed to discharge its obligations to deduct tax at source u/s.195(1) of the Act for which the provisions of section 40(a)(ia) of the Act is attracted - Held that - CIT(A) while dealing with the disputed issue has made an elaborate discussion relying upon various judicial decisions and deleted the addition. The CIT(A) further found that the AO has not brought any facts on record nor it is apparent that income in respect of transactions arises in favour of the nonresident sellers in the Indian territory or that the income of such nonresidents in respect of transactions is assessable under Indian Income tax Law. The CIT(A) also relied upon the decision of Hon ble Supreme Court in the case of GE India Technology Cen. (P) Ltd. v. CIT (2010 (9) TMI 7 - SUPREME COURT OF INDIA), wherein it is held that if the payment is made to a non-resident, which is not a taxable income in India, then no tax is required to be deducted u/s.195 of the Act. Accordingly, we do not find any mistake in the order of CIT(A) and the same is upheld. Addition made on account of repair and maintenance expenditure - AO after allowing depreciation @15% on the total amount i.e. ₹ 86,93,567/-, disallowed the balance amount of ₹ 73,89,532/- and added to the total income - Held that - CIT(A) observed in the instant case where no new assets have come into existence and no new capacity has been added, therefore, deleted the addition made on account of repair & maintenance to the plant and machinery and directed the AO to withdraw the depreciation allowed by him. We have carefully perused order of authorities below and found that the CIT(A) has taken a plausible view to which our interference is not required. Accordingly, we upheld the same and dismiss the ground of appeal of the Revenue. Addition made on account of miscellaneous expenses - assessee could not produce any break-up or ledger copies of the aforesaid expenses, which could not be verifiable - Held that - CIT(A) correctly observed that the expenditure in question i.e miscellaneous expenditure to the extent of ₹ 22,52,169/- has been incurred during the course of running of business and for business purpose and reduced the addition. Merely because the appellant terms the expenditure as for CSR activities would not entitle it to claim deduction unless it is established that the same is for the business purposes. As far as miscellaneous expenditure to the extent of ₹ 22,52,169/- is concerned, the same has been incurred during the course of running of business and for business purposes. Accordingly, the addition of ₹ 44,88,081/- made by the AO is reduced and addition sustained to the extent of ₹ 22,35,912/- on account of CSR activities considered as not for the business purposes. Claim of expenditure made u/s.80G - certificate was wrongly issued in the name of Sri A.P.Singh - Held that - Even though the 80G certificate was wrongly issued in the name of Sri A.P.Singh, however, Sri A.P.Singh has not claimed the relief u/s.80G of the Act in his personal income tax return - The contribution was made by the appellant to the Chief Minister s relief fund even though the 80G certificate was wrongly issued in the name of Sri A. P. Singh. Accordingly, the AO is directed to allow deduction u/s.80G for an amount of ₹ 5,87,216/- after being satisfied that Sri A. P. Singh has not claimed the relief u/s.80G in his personal income tax return. Addition made on account of prior period expenses - Held that - We find that the CIT(A) on the disputed issue was satisfied with the computation of income disclosed by the assessee and partly allowed the claim of the assessee, whereas we do not see any reason to interfere with the order of CIT(A) on this ground, accordingly, we uphold the same and dismiss this ground of appeal of Revenue. Claim of bad debt written back - Held that - The appellant claimed bad debt for an amount of ₹ 76,79,492/- whereas the correct claim comes to ₹ 1,05,73,637/- as per above calculation. During the assessment proceedings, the appellant recalculated the correct claim and accordingly made a further claim of ₹ 28,94,145/-of bad debt. Accordingly, no new claim was made by the appellant during the assessment proceedings but mistake in calculation was rectified and enhanced claim was made. In view of the decisions in the cases of CIT v. Pruthvi Brokers &Shareholders 2012 (7) TMI 158 - BOMBAY HIGH COURT the claim made by the appellant for further deduction of bad debt to the extent of ₹ 28,94,145/- is allowed

Summary

Issues Involved:
1. Disallowance of 'School Expenses' - ?2,33,07,717/-
2. Disallowance under Miscellaneous Expenses - CSR Related Activities - ?22,35,912/-
3. Addition under 'Subsidy Income' - ?9,52,21,000/-
4. Disallowance of diminution in value of GOI Fertilizer Bonds - ?46,86,09,535/-
5. Non-deduction/Disallowance of punitive charges by Railways - ?1,14,09,150/-
6. Non-deduction/ Disallowance of loss in respect of valuation of stores and spares - ?404,494/-
7. Non-deduction/Disallowance of interest on water charges - ?21,34,566/-
8. Non-deduction/Disallowance of club expenses - ?129,111/-
9. Non-deduction/Disallowance of provision for leave salary - ?7,28,75,325/-
10. Claim of carry forward of business loss and depreciation - ?45,20,05,128/-
11. Non-deduction of tax u/s 40(a)(i) - ?4491,86,39,189/-
12. Addition on account of repair and maintenance expenditure - ?73,89,532/-
13. Addition on account of miscellaneous expenses - ?22,52,169/-
14. Disallowance of expenditure u/s 80G - ?5,87,216/-
15. Addition on account of prior period expenses - ?91,92,731/-
16. Allowance of bad debt - ?28,94,145/-

Detailed Analysis:

1. Disallowance of 'School Expenses' - ?2,33,07,717/-:
The Tribunal found that the issue of disallowance of school expenses was covered by its previous decision in the assessee's own case for AY 2011-12, where it was held that such expenses were for the welfare of employees and allowable under Section 37(1) of the Income Tax Act. Consequently, the Tribunal directed the AO to delete the addition made on account of school expenses.

2. Disallowance under Miscellaneous Expenses - CSR Related Activities - ?22,35,912/-:
The Tribunal noted that the expenses under CSR were incurred wholly and exclusively for business purposes. The Tribunal referred to its previous decision in the case of NALCO, allowing similar expenses under Section 37(1). The Tribunal directed the AO to delete the addition made on account of CSR activities.

3. Addition under 'Subsidy Income' - ?9,52,21,000/-:
The Tribunal found that the assessee did not produce evidence to substantiate that the subsidy income was offered in the subsequent year. Therefore, the Tribunal remitted the issue to the AO to verify whether the subsidy income was offered in the subsequent year and to decide accordingly.

4. Disallowance of diminution in value of GOI Fertilizer Bonds - ?46,86,09,535/-:
The Tribunal held that the diminution in the value of GOI Fertilizer Bonds, which were issued in lieu of cash subsidy and disclosed as current assets, was a revenue loss. The Tribunal relied on the decision of the Delhi High Court in the case of DCM Shriram Consolidated Ltd. and directed the AO to delete the addition.

5. Non-deduction/Disallowance of punitive charges by Railways - ?1,14,09,150/-:
This ground was not pressed by the assessee and was dismissed as not pressed.

6. Non-deduction/ Disallowance of loss in respect of valuation of stores and spares - ?404,494/-:
This ground was not pressed by the assessee and was dismissed as not pressed.

7. Non-deduction/Disallowance of interest on water charges - ?21,34,566/-:
This ground was not pressed by the assessee and was dismissed as not pressed.

8. Non-deduction/Disallowance of club expenses - ?129,111/-:
This ground was not pressed by the assessee and was dismissed as not pressed.

9. Non-deduction/Disallowance of provision for leave salary - ?7,28,75,325/-:
This ground was not pressed by the assessee and was dismissed as not pressed.

10. Claim of carry forward of business loss and depreciation - ?45,20,05,128/-:
This ground was not pressed by the assessee and was dismissed as not pressed.

11. Non-deduction of tax u/s 40(a)(i) - ?4491,86,39,189/-:
The Tribunal upheld the CIT(A)'s decision, which relied on the Supreme Court's judgment in GE India Technology Centre, stating that no tax is required to be deducted u/s 195 if the payment is not taxable in India. The CIT(A) deleted the addition made by the AO on this ground.

12. Addition on account of repair and maintenance expenditure - ?73,89,532/-:
The Tribunal upheld the CIT(A)'s decision, which found that the expenditure was for maintenance and no new assets or capacity were added. The CIT(A) directed the AO to withdraw the depreciation allowed and deleted the addition.

13. Addition on account of miscellaneous expenses - ?22,52,169/-:
The Tribunal upheld the CIT(A)'s decision, which found that the miscellaneous expenses were incurred during the course of running the business and for business purposes. The CIT(A) deleted the addition.

14. Disallowance of expenditure u/s 80G - ?5,87,216/-:
The Tribunal upheld the CIT(A)'s decision, which found that the contribution to the Chief Minister's relief fund was made by the assessee, even though the certificate was issued in an individual's name. The CIT(A) directed the AO to allow the deduction after verifying that the individual did not claim the relief in his personal return.

15. Addition on account of prior period expenses - ?91,92,731/-:
The Tribunal upheld the CIT(A)'s decision, which found that the prior period expenses were already offered to tax in the computation of total income. The CIT(A) reduced the disallowance to ?44,779/-.

16. Allowance of bad debt - ?28,94,145/-:
The Tribunal upheld the CIT(A)'s decision, which allowed the claim of bad debt as the correct calculation was made during the assessment proceedings. The CIT(A) allowed the enhanced claim of bad debt.

Conclusion:
The appeal of the assessee was allowed for statistical purposes, and the appeal of the Revenue was dismissed.