2017 (8) TMI 273 - AT - Income Tax

Disallowance of 25% of expenditure - documentary evidence - reimbursement of expenditure incurred through employees - Held that - As in assessee s own case for Assessment Year 2004-05, 2005-06, 2006- 07, 2007-08 2008-09 & 2009-10 reimbursement of expenses to the employees by employer on the basis of self-declaration for small amounts, for which it is difficult and sometimes cumbersome to obtain supporting by employees, is common prevalent practice and it is not an disallowable expenditure. Therefore, also we reject the contention of revenue that balance 25% expenditure is without any basis and evidence. He also held that the payment is business expenditure as it is paid by way of salary or remuneration to the employees. Similarly he set aside the disallowance for the purpose of verification of the assessing Officer in case if the total amount of expenditure on subsistence allowances not related to the previous year and then to make disallowance of the expenditure to that extent, if it is related to the earlier years. DR could not point out any quantification made by the Ld. AO about the amount expenditure related to previous year and earlier years. Therefore when the assessment order does not mention about the vouchers and declaration which are pertaining to earlier years, then in that case that verification needs to be done by the A.O. only, hence there is no infirmity in the order of Ld. CIT(A) in directing ld. AO to verify the claim of the assessee form that aspect and quantify the disallowance, if any. In view of this, we confirm the order of the first appellate authority deleting the disallowance of subsistence allowance expenses Claim of the assessee u/s 10A - unobserved depreciation whether can be reduced from the income from other sources - Held that - Hon ble Karnataka High Court judgment in case of Yokogawa India Ltd. 2011 (8) TMI 845 - Karnataka High Court clearly makes point that how the set off of unabsorbed depreciation has to be taken into account. As the income of the Section 10A unit has to be excluded at source itself before arriving at the gross total income, the loss of the non-section 10A unit cannot be set off against the income of the Section 10A unit under Section 72. The loss incurred by the assessee under the head Profits and gains of business or profession has to be set off against the profits and gains, if any, of any business or profession carried on by such assessee. Therefore, as the profits and gains under Section 10A is not be included in the income of the assessee at all, the question of setting off the loss of the assessee of any profits and gains of business against such profits and gains of the undertaking would not arise. Similarly, as per section 72(2), unabsorbed business loss is to be first set off and thereafter unabsorbed depreciation treated as current year s depreciation under Section 32(2) is to be set off. As deduction under Section 10A has to be excluded from the total income of the assessee the question of unabsorbed business loss being set off against such profit and gains of the undertaking would not arise. Appeal of the assessee is allowed.

Summary

Issues:
1. Deletion of substance allowance by CIT(A)
2. Claim of the assessee u/s 10A of the Income-tax Act

Deletion of Substance Allowance by CIT(A):
The appeal was against the order passed u/s 143(3) where the issues were related to the deletion of a substantial amount by CIT(A) and the claim of the assessee u/s 10A. The Ld. AR argued that the issues were covered against the Revenue based on a previous ITAT order. The Ld. DR contended that the assessee lacked documentary evidence for the substance allowance. The ITAT considered the earlier years' decision and held in favor of the assessee, emphasizing that the subsistence allowance was a reimbursement of expenses not chargeable to tax. The ITAT rejected the Revenue's argument that 25% of the expenditure lacked evidence, stating that self-declaration by employees is a common practice and not disallowable. The ITAT confirmed the first appellate authority's decision to delete the disallowance of subsistence allowance expenses. The ITAT dismissed the Revenue's appeal.

Claim of the Assessee u/s 10A of the Income-tax Act:
Regarding the assessee's appeal, the issue was whether unabsorbed depreciation could be set off from income from other sources. The Ld. AR argued that unabsorbed depreciation can be set off with any income, citing relevant case laws. The Ld. DR contended that depreciation merged with the next year claimed under Section 10A was improper as profits were sufficient to absorb depreciation. The ITAT analyzed the legal provisions and previous judgments, concluding that unabsorbed business loss should be set off before unabsorbed depreciation. The ITAT allowed the issue in favor of the assessee, following the Karnataka High Court's judgment. The appeal of the assessee was allowed.

The judgment was delivered by the ITAT Delhi Bench on December 9, 2016, dismissing the Revenue's appeal and allowing the assessee's appeal based on detailed analysis and legal interpretations of the issues involved.