2012 (8) TMI 575 - AT - Income Tax

Disallowance on account of employer s contribution to ESI alleged that assessee company had not paid employers contribution before the due date prescribed Held that - Assessee paid the amount in question in the financial year relevant to the assessment year under appeal - when the liability is crystallized and the amount is paid, deduction shall have to be allowed in favour of the assessee as per the provisions of law and further the claim of the assessee should be allowed even with the help of section 43B of the Income-tax Act disallowance deleted - appeal of the assessee is allowed Disallowance on account of bad debts written off Held that - Amount in question has been written off as bad debt in the profit and loss account of the assessee as irrecoverable - it is not necessary for the assessee to establish that the debt, in fact, has become irrecoverable - It is enough if the bad debt is written off as irrecoverable in the accounts of the assessee - assessee has satisfied the requirements of section 36(1)(vii ) of the Income-tax Act addition deleted In favor of assessee Disallowance of expenses claimed as export commission Held that - Assessee explained the reasons for inflating the commission which was due to mainly inflating the prices in the invoices - authorities below merely compared the commission with the preceding assessment year and rejected the claim of the assessee CIT has not given any finding on the matter in controversy in the light of the submissions of the parties and documentary evidences available on record -commission cannot be disallowed by comparing with the earlier years due to the explanation of the assessee supported by documents matter remanded to CIT - appeal of the assessee is allowed for statistical purposes

Issues Involved:
1. Levy of interest under different sections of the Income-tax Act.
2. Initiation of penalty proceedings under section 271(1)(c) of the Income-tax Act.
3. Disallowance of employer's contribution to ESI.
4. Disallowance of bad debts written off.
5. Disallowance of expenses claimed as export commission.

Issue-wise Detailed Analysis:

1. Levy of Interest and Initiation of Penalty Proceedings:
The tribunal dismissed the appeal on these grounds as they were not argued by the assessee. The levy of interest is consequential and mandatory, and the initiation of penalty proceedings is considered premature at this stage.

2. Disallowance of Employer's Contribution to ESI:
The CIT(A) confirmed the disallowance of Rs. 2,25,931 paid towards employer's contribution to ESI, as it pertained to earlier years and was not paid before the due date prescribed under ESI law. The assessee argued that the liability crystallized during the assessment year under appeal due to audit objections raised by the Employees State Insurance Corporation. The tribunal found that the liability to pay crystallized during the assessment year under appeal, and the amount was paid in the same year. It concluded that the deduction should be allowed under section 43B of the Income-tax Act since the amount was not penal in nature. The tribunal set aside the orders of the authorities below and allowed the deduction.

3. Disallowance of Bad Debts Written Off:
The assessee claimed a deduction of Rs. 44,44,175 as bad debts written off. The Assessing Officer disallowed the claim, stating that the assessee did not substantiate efforts made for recovery. The CIT(A) upheld this disallowance. The tribunal referred to the Supreme Court decision in T.R.F. Ltd. v. CIT, which states that it is sufficient if the bad debt is written off as irrecoverable in the accounts. The tribunal found that the assessee satisfied the conditions of section 36(1)(vii) of the Income-tax Act and deleted the addition.

4. Disallowance of Export Commission Expenses:
The assessee claimed Rs. 48,42,185 as export commission expenses. The Assessing Officer noted a disproportionate increase in commission payments compared to the previous year and disallowed Rs. 39,81,648, citing lack of substantiation. The CIT(A) confirmed this disallowance. The assessee argued that the commission was actually a reimbursement of increased operating costs requested by the overseas buyer and that the sales value was inflated to accommodate this. The tribunal found that the authorities below failed to appreciate the facts properly and that the commission was reasonable given the increased sales volume. The tribunal set aside the CIT(A)'s order and remitted the issue back for reconsideration, instructing the CIT(A) to re-decide the issue based on the submissions and documentary evidence.

Conclusion:
The appeal of the assessee was partly allowed, with the tribunal providing relief on the issues of employer's contribution to ESI and bad debts written off, while remanding the issue of export commission expenses for reconsideration. The grounds related to the levy of interest and initiation of penalty proceedings were dismissed as they were not argued.

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