2017 (9) TMI 1520 - AT - Income Tax

Disallowance of salary and advisory fees paid to the Directors u/s 40A(2)(b) - CIT-A deleted addition - Held that - During the course of arguments, the ld. AR for the assessee contended that their salary was enhanced as the company has earned more profit during the year under assessment. But this contention is not sustainable for the reason that the salary of a person cannot be based upon losses and profits of the company but it needs to be commensurate to the nature of their work, qualification and services rendered. Despite the fact that there was not an iota of material before the ld. CIT (A) to objectively come to the conclusion that their salary / fees have been rightly increased to the tune of 250% to 300%, the addition has been deleted. We are of the considered view that AO has objectively thrashed the issue by enhancing the salary/fee of the directors by 25% to 30% and CIT (A) has erred in deleting the addition on the basis of conjectures and surmises. So, in these circumstances, we hereby allow the appeal filed by the Revenue.

Summary

Issues Involved:
Disallowance of salary and advisory fees paid to the Directors under section 40A(2)(b) of the Income-tax Act, 1961.

Detailed Analysis:

1. Issue of Disallowance under Section 40A(2)(b):
- The Assessing Officer (AO) observed a significant increase in the salaries and benefits of the Directors of the company, ranging from 250% to 300% over the years.
- The AO disallowed an amount of ?45,90,748 under section 40A(2)(b) of the Income-tax Act, 1961, considering the increase excessive.
- The Commissioner of Income-tax (Appeals) partially allowed the appeal filed by the assessee, leading to the Revenue challenging the decision before the Tribunal.

2. Arguments and Findings:
- The Tribunal considered the arguments presented by both parties and reviewed the documents and orders of the revenue authorities.
- The Commissioner of Income-tax (Appeals) deleted the addition based on the lack of inquiry by the AO into the fair market value of the services rendered by the Directors.
- The AO failed to provide comparable cases to establish that the payments made were excessive and unreasonable.
- The Directors were highly qualified and experienced, receiving comparable salaries from their previous employer, which was a crucial factor in the decision.

3. Judicial Analysis:
- The Tribunal noted that the salary increase was subjective, lacking an objective criterion based on qualifications, experience, and duties performed by the Directors.
- A comparison with the salaries paid in the following assessment year showed no similar increase, raising questions about the sudden raise in the current year.
- The argument that the salary increase was due to increased company profits was deemed unsustainable, as salaries should be commensurate with work and qualifications.
- The Tribunal concluded that the AO's decision to enhance salaries by 25% to 30% was justified, and the deletion of the addition by the Commissioner of Income-tax (Appeals) was based on conjecture rather than evidence.

4. Final Decision:
- The Tribunal allowed the appeal filed by the Revenue, overturning the decision of the Commissioner of Income-tax (Appeals) and upholding the disallowance of the excessive salary and advisory fees paid to the Directors.
- The judgment was pronounced on August 29, 2017, by the Tribunal comprising Shri B.P. Jain, Accountant Member, and Shri Kuldip Singh, Judicial Member.

This detailed analysis of the judgment highlights the key issues, arguments, findings, and the final decision regarding the disallowance of salary and advisory fees paid to the Directors under section 40A(2)(b) of the Income-tax Act, 1961.