2014 (10) TMI 1021 - AT - Income Tax

Disallowance @ 5% on account of various general expenses - disallowance by restricting @ 5% on account of business expenditure can be made or not in the absence of any reasoning? - HELD THAT - Disallowance purely by resorting to ad hoc method cannot be made. These are business expenditure, and in the absence of cogent reason, the disallowance should not have been made. We hold that disallowance made by AO is without any basis and hence deserves to be deleted. Accordingly, we delete the disallowance. This issue of assessee s appeal is allowed. Disallowance of employees contribution to ESI P.F. - HELD THAT - We find that in all the three AYs, the dates are noted by the AO and the payments are made within the due date of filing of return of income u/s.139(1) of the Act as is evident from the assessment order. Now, this issue stands covered in favour of assessee and against the Revenue by the decision of Hon ble jurisdictional High Court in the case of CIT v. M/s Vijay Shree Limited 2011 (9) TMI 30 - CALCUTTA HIGH COURT - Decided in favour of assessee. Assessment u/s 153A - HELD THAT - there is no seized incriminating materials found during the course of search in this case, and without any evidence the AO has made addition of deemed dividend. The issue is squarely covered in favour of assessee and against the Revenue by the decision of Special Bench in the case of All Cargo Global Logistics Ltd., v. DCIT 2012 (7) TMI 222 - ITAT MUMBAI(SB) as well as by the decision of Jai Steel (India) 2013 (6) TMI 161 - RAJASTHAN HIGH COURT . As the issue is covered in favour of assessee, we confirm the order of CIT(A) deleting the addition. This common issue of Revenue s appeals is dismissed. Disallowance of loss incurred on account of expenses - HELD THAT - As the issue is exactly identical and no incriminating materials were found during the course of search as noted by CIT(A), we confirm the order of CIT(A) in deleting the addition. This common issue of Revenue s appeals is dismissed.

Summary

Issues Involved:
1. Ad hoc disallowance of general expenses.
2. Disallowance of employees' contribution to ESI & PF.
3. Addition on account of deemed dividend.
4. Disallowance of specific expenses and fees paid to ROC.

Detailed Analysis:

1. Ad hoc Disallowance of General Expenses:
The assessee challenged the CIT(A)'s decision to uphold the ad hoc disallowance of 5% of various general expenses made by the Assessing Officer (AO). The AO had disallowed expenses totaling Rs. 8,63,229 due to the assessee's failure to provide detailed accounts. The Tribunal found that the disallowance was made on an ad hoc basis without any concrete reasoning and held that business expenditures should not be disallowed without cogent reasons. Therefore, the Tribunal deleted the disallowance, allowing the assessee's appeal on this issue.

2. Disallowance of Employees' Contribution to ESI & PF:
The assessee contested the disallowance of employees' contributions to ESI & PF, which were paid after the due dates but before the filing of the return. The Tribunal referred to the jurisdictional High Court's decision in the case of CIT v. M/s Vijay Shree Limited, which held that such contributions are deductible if paid before the due date of filing the return under Section 139(1) of the Income Tax Act. Consequently, the Tribunal allowed the assessee's appeal on this issue.

3. Addition on Account of Deemed Dividend:
The Revenue appealed against the CIT(A)'s deletion of additions made by the AO on account of deemed dividends for the assessment years 2002-03 and 2003-04. The CIT(A) had deleted these additions on the grounds that no incriminating material was found during the search, and the original assessments had already been completed. The Tribunal upheld the CIT(A)'s decision, citing the Rajasthan High Court's ruling in Jai Steel (India) Vs. ACIT, which stated that completed assessments could only be revisited based on incriminating material found during the search. Therefore, the Tribunal dismissed the Revenue's appeals on this issue.

4. Disallowance of Specific Expenses and Fees Paid to ROC:
The Revenue also appealed against the CIT(A)'s deletion of disallowances related to specific expenses and fees paid to the Registrar of Companies (ROC) for the assessment years 2004-05 and 2005-06. The CIT(A) had ruled in favor of the assessee, stating that no incriminating material was found during the search to justify these disallowances. The Tribunal agreed with the CIT(A), referencing the Special Bench decision in All Cargo Global Logistics Ltd. v. DCIT and the Rajasthan High Court's decision in Jai Steel (India), which supported the view that additions could not be made without incriminating evidence. Thus, the Tribunal dismissed the Revenue's appeals on these issues.

Conclusion:
The Tribunal allowed all the assessee's appeals and dismissed all the Revenue's appeals, confirming the deletion of disallowances and additions made by the AO in the absence of incriminating material found during the search. The order was pronounced in open court on 17/10/2014.