2021 (8) TMI 765 - AT - Income Tax

Disallowance of expenditure u/s 40A(2) - Payment to sister concern towards consultancy and technical services - HELD THAT - We come to the conclusion that this essential aspect has been missed by both the Authorities. CIT Appeal had wrongly and in a pro rata manner, had sustained the 20% of the expenditure claimed by the Assessee. There was no reason for coming to the conclusion for sustaining 20% of the disallowance. No fair market value of the services or goods has been brought on record by the Lower Authorities. It is undisputed that the Assessing Officer had allowed the similar expenditure for the assessment yea₹ 2015-16, 2017-18 and 2018-19. Further, we are of the opinion that in the absence of any comparable instance of rendering the similar services/supply of goods, it would not be permissible to disallow the expenditure u/s 40A(2). As the needful was not done by the Lower Authorities and on adhoc/estimate basis, the CIT Appeal has restricted the disallowance upto 20%. When the comparable fair market value have not been brought on record by the Lower Authorities, we further grant the benefit of another 10% to the Assessee. Thus, we restrict the disallowance upto 10% of the expenditure claimed by the Assessee by making the payment of M/s Oxbridge International Private Limited for both the assessment years. In the result, both the Appeals are partly allowed.

Summary

Issues Involved:
1. Disallowance of professional expenses under Section 40A(2)(b) of the Income Tax Act, 1961.
2. Justification for the disallowance based on estimation and without material evidence.
3. Acceptance of books of accounts and method of accounting without invoking Section 145.
4. Applicability of Section 40A(2)(b) in the context of payments to a sister concern.

Detailed Analysis:

Issue 1: Disallowance of Professional Expenses under Section 40A(2)(b)
The main issue revolves around the disallowance of professional expenses paid by the Assessee to its sister concern, M/s Oxbridge International Pvt. Ltd., under Section 40A(2)(b) of the Income Tax Act, 1961. The Assessing Officer (AO) disallowed these expenses on the grounds that the payments were excessive and unreasonable. The AO observed that the sister concern had no prior experience in the field and concluded that the expenses were not justified.

Issue 2: Justification for Disallowance Based on Estimation and Without Material Evidence
The Assessee contended that the disallowance was made on a presumption basis without any material evidence. The CIT(A) partly confirmed the disallowance at 20% of the total expenses, which the Assessee argued was arbitrary and not based on any comparable market rates. The Assessee emphasized that the services provided by the sister concern led to a reduction in repair costs and that the payments were made after deducting TDS and service tax.

Issue 3: Acceptance of Books of Accounts and Method of Accounting Without Invoking Section 145
The Assessee argued that the AO accepted the books of accounts and the method of accounting without finding any defects or invoking the proviso to Section 145. Therefore, the disallowance under Section 40A(2)(b) was unwarranted. The Assessee highlighted that similar expenses were allowed in subsequent assessment years, which further supported their claim.

Issue 4: Applicability of Section 40A(2)(b) in the Context of Payments to a Sister Concern
The Tribunal examined the applicability of Section 40A(2)(b), which allows the AO to disallow expenses considered excessive or unreasonable compared to the fair market value of goods, services, or facilities. The Tribunal noted that the AO and CIT(A) failed to bring any evidence showing that the expenses were excessive or unreasonable. The Tribunal emphasized that the fair market value of the services was not established by the lower authorities.

Conclusion:
The Tribunal concluded that the essential aspect of proving the expenses as excessive or unreasonable was missed by both the AO and CIT(A). The CIT(A) had wrongly sustained 20% of the disallowance without any basis. The Tribunal noted that similar expenses were allowed in subsequent years and that no comparable market rates were provided by the lower authorities. Therefore, the Tribunal restricted the disallowance to 10% of the expenses claimed by the Assessee for both assessment years, granting partial relief to the Assessee.

Result:
Both appeals were partly allowed, and the disallowance was restricted to 10% of the professional expenses claimed by the Assessee.