2012 (6) TMI 689 - AT - Income Tax

Dis-allowance u/s 40A(2)(a) - remuneration paid to Directors - dis-allowance of an amount of ₹ 30 lacs out of total salary of ₹ 36 lacs - Held that - It is well settled that the provisions of section. 40A(2)(a) cannot have any application unless it is first concluded that the expenditure was excessive or unreasonable. In the instant case, there is nothing to suggest that the AO found the payment of remuneration to director excessive having regard to either (a) fair market value of the services or facilities; or (b) the legitimate needs of the business of the assessee; or (c) the benefits derived by or accruing to the assessee on receipt of such services or facilities. Hence, in absence of material on record to hold that payment of remuneration @ ₹ 3 lacs pm to the director was excessive or unreasonable, CIT(A) was justified in deleting the addition - Decided against the Revenue.

Summary

Issues: Appeal against deletion of addition of Directors remuneration invoking section 40A(2)(b).

Analysis:

Issue 1: Deletion of addition of Directors remuneration
The appeal was filed against the deletion of the addition of Rs. 30 lacs on account of Directors remuneration by invoking the provisions of section 40A(2)(b). The Assessing Officer (AO) disallowed the amount based on the salary paid to the director, considering it excessive. The assessee contended that the remuneration was justified due to the director's qualifications and the company's profits. The ld. CIT(A) deleted the addition, emphasizing the professional expertise of the director and the profits earned by the company under his leadership. The Tribunal noted that the AO did not establish that the remuneration was excessive or unreasonable in relation to fair market value or the business needs. The Tribunal upheld the CIT(A)'s decision, emphasizing the lack of evidence to support the AO's disallowance.

Issue 2: Interpretation of Section 40A(2)(a)
The Tribunal analyzed the provisions of section 40A(2)(a) which require the AO to determine if the expenditure is excessive or unreasonable concerning fair market value, business needs, or benefits derived. Referring to precedents, the Tribunal highlighted that all three requirements need not exist simultaneously for invoking the provision. The Tribunal emphasized that the AO must establish the excessiveness or unreasonableness of the expenditure based on specific criteria, which was lacking in this case. The Tribunal differentiated the present case from a cited decision, where the facts were distinct, and the disallowance was based on different grounds. The Tribunal concluded that the AO failed to provide evidence or reasoning for considering the director's remuneration excessive, leading to the dismissal of the appeal.

Conclusion
The Tribunal dismissed the appeal, upholding the CIT(A)'s decision to delete the addition of Directors remuneration. No additional grounds were raised, and the appeal was consequently dismissed.