2016 (7) TMI 7 - AT - Income Tax

Addition u/s 40A(2)(a) in respect of sub-contract payments - unreasonable and excessive expenditure - Held that - The market value of services rendered by M/s. Shri Bharat Cemco Pvt. Ltd. is to be seen from the angle of contract received by the assessee. The total work contract has been sub-contracted and even if we consider the direct expenses which have been debited by the assessee as part of cost of contract, the assessee for the year under consideration has declared profit of ₹ 1.34 crores in the Hospet division. The perusal of assessment order itself reflects that the assessee to have declared income at ₹ 80,47,920/- i.e. after claiming deduction on account of salary payable to partners. Further, the concern M/s. Shri Bharat Cemco Pvt. Ltd., in turn, had filed the return of income declaring total income of ₹ 1.75 crores. In case, the profits declared by the assessee and M/s. Shri Bharat Cemco Pvt. Ltd., are considered, first of all, there is no loss of revenue. Even otherwise, we hold that where the market value of services provided by the assessee is available on record i.e. the receipts received by the assessee against the contract between the assessee and NMDC, which in turn, is sub-contracted to M/s. Bharat Cemco Pvt. Ltd., we find no merit in the order of authorities below in holding that the provisions of section 40A(2)(a) of the Act are attracted in the case. In the absence of any finding by the Assessing Officer that the payments made to M/s. Bharat Cemco Pvt. Ltd., were unreasonable and excessive, we find no merit in the disallowance of any part of sub-contract charges paid by the assessee to the said concern. Accordingly, we direct the Assessing Officer to delete the addition - Decided in favour of assessee.

2008 (8) TMI 208 - HC

Issues Involved:
1. Disallowance under section 40A(2)(a) of the Income-tax Act, 1961 regarding sub-contract payments.
2. Justification and reasonableness of sub-contract payments.
3. Applicability of provisions of section 40A(2)(a) in the context of related party transactions.
4. Evaluation of market value of services rendered by the sub-contractor.
5. Impact of additional expenses incurred by the assessee on the sub-contract payments.
6. Examination of potential revenue loss to the tax authorities.

Issue-wise Detailed Analysis:

1. Disallowance under section 40A(2)(a) of the Income-tax Act, 1961 regarding sub-contract payments:
The primary issue in the appeal was the disallowance of ?67,66,710/- under section 40A(2)(a) related to sub-contract payments made to a related party, M/s. Shri Bharat Cemco Pvt. Ltd. The Assessing Officer (AO) disallowed 8% of the total sub-contract payments, asserting that the payments were excessive and unreasonable.

2. Justification and reasonableness of sub-contract payments:
The AO questioned the justification for the sub-contract payments, noting that the assessee had not provided sufficient evidence to substantiate the reasonableness of the payments. The AO observed a significant decrease in the net profit margin from 12.89% in the preceding year to 8% in the current year, suggesting that the payments to the sub-contractor were excessive.

3. Applicability of provisions of section 40A(2)(a) in the context of related party transactions:
The AO invoked section 40A(2)(a), which disallows excessive payments to related parties. The assessee argued that the payments were fair and in line with market rates. The AO, however, maintained that the sub-contracting arrangement was a colorable device to reduce taxable profits, as the sub-contractor, being a related party, did not possess the necessary infrastructure and expertise.

4. Evaluation of market value of services rendered by the sub-contractor:
The AO contended that the assessee failed to provide comparative quotations or a basis for the rates paid to the sub-contractor. The assessee argued that the payments were justified based on the terms of the sub-contract and the market value of services rendered. The CIT(A) upheld the AO's decision, stating that the assessee did not substantiate its claim regarding the reasonableness of the payments.

5. Impact of additional expenses incurred by the assessee on the sub-contract payments:
The AO noted that the assessee had incurred additional expenses totaling ?99,52,248/- over and above the sub-contract payments, which included financial charges and depreciation on machinery. The AO argued that these expenses should not have been incurred if the entire work was sub-contracted. The assessee explained that these expenses were related to the machinery owned by the assessee and used by the sub-contractor.

6. Examination of potential revenue loss to the tax authorities:
The assessee contended that there was no loss to the Revenue as the sub-contractor, M/s. Shri Bharat Cemco Pvt. Ltd., had declared income and paid taxes on the payments received. The assessee cited the case of CIT Vs. Indo Saudi Services (Travel) Pvt. Ltd. (2009) 310 ITR 306 (Bom) to support its argument that no disallowance should be made under section 40A(2)(a) when there is no loss to the Revenue.

Conclusion:
The Tribunal held that the provisions of section 40A(2)(a) were not applicable as the payments made to the sub-contractor were not excessive or unreasonable. The Tribunal noted that the market value of services rendered by the sub-contractor was justified based on the terms of the contract and the overall profit declared by the assessee. The Tribunal reversed the order of the CIT(A) and directed the AO to delete the addition of ?67,55,710/-. The appeal of the assessee was allowed.

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