2018 (6) TMI 1376 - AT - Income Tax

Eligibility for claiming exemption u/s.11 - excessive payments made to M/s. Amali Builders Private Limited - whether the payments effected to M/s. Amali Builders Private Limited were in the normal course of its activities at market rates and there was no violation as contained in Section 13(1)(c) - Held that - Apart from saying that two of the trustees were also directors of the M/s. Amali Builders Private Limited, AO has no where shown as to how the said concern satisfied requirement of Explanation 3 to Section 13(1) (9). Just because two trustees were directors would not mean that they were entitled to 20% of the profit or were having 20% of its voting power. That apart, argument of the assessee all along was that payments effected to M/s. Amali Builders Private Limited were not excessive or unreasonable. Total construction cost incurred by the assessee was undisputedly ₹ 5,50,51,715/- and the payments to M/s. Amali Builders Private Limited came to ₹ 40,78,668/-. Excluding service tax ₹ 4,48,668/- the payment for services came to ₹ 36,30,000/-. This was only about 6.6% of the total construction cost. There is nothing on record to show how the Revenue came to a conclusion that such payments were excessive viz-a-viz services rendered by them. - Decided against revenue

Summary

Issues:
Violation under Section 13(1)(c) of the Income Tax Act, 1961 regarding payments made to a concern involving trustees, Exemption claimed by the assessee trust under Section 11 of the Act, Interpretation of the nature of services provided and payments made, Application of Explanation 3 to Section 13(1)(c) to determine substantial interest in a concern.

Violation under Section 13(1)(c) of the Income Tax Act:
The appeal filed by the Revenue challenged the order of the ld. Commissioner of Income Tax (Appeals) regarding the violation under Section 13(1)(c) of the Act. The ld. Assessing Officer raised concerns about payments made by the assessee trust to a concern where two trustees were also directors, alleging a violation of Section 13(1)(c). The Assessing Officer contended that the services provided were vague and the basis for calculating service charges was not properly assessed. This led to the denial of exemption claimed by the assessee trust under Section 11 of the Act.

Exemption claimed by the assessee trust under Section 11 of the Act:
The ld. Commissioner of Income Tax (Appeals) examined the case and found that the payments made to the concern were not excessive, amounting to only about 8% of the total construction cost. The Commissioner held that the payments were reasonable and made on commercial considerations, thus allowing the claim of exemption under Section 11. The Commissioner also noted that even if there was any benefit to the concern, only a portion of income could be taxed, not the entire income of the trust.

Interpretation of the nature of services provided and payments made:
The Assessing Officer and the ld. Commissioner of Income Tax (Appeals) differed in their assessments of the nature of services provided and the reasonableness of payments made to the concern. The Assessing Officer deemed the services vague and the payments excessive, leading to the denial of exemption. In contrast, the Commissioner found the payments reasonable and made on commercial considerations, thus allowing the exemption claimed by the assessee trust.

Application of Explanation 3 to Section 13(1)(c) to determine substantial interest in a concern:
The issue of whether the concern to which payments were made had substantial interest from the trustees was crucial in determining the violation under Section 13(1)(c). The Explanation 3 to Section 13(1)(c) outlines the criteria for substantial interest in a concern, emphasizing ownership of voting power or profits. The Assessing Officer failed to establish how the concern satisfied the requirements of substantial interest, solely relying on the fact that two trustees were also directors.

In conclusion, the Tribunal dismissed the appeal of the Revenue, upholding the order of the ld. Commissioner of Income Tax (Appeals). The Tribunal found no reason to interfere with the decision, emphasizing the reasonable nature of payments made by the assessee trust and the lack of undue benefit to the trustees from the transactions. The judgment highlighted the importance of establishing substantial interest in a concern and considering commercial aspects in determining violations under the Income Tax Act.