2017 (12) TMI 566 - AT - Income Tax

Disallowance of business expenses - Held that - Bare perusal of the highlighted expenses disallowed by the AO and sustained by the ld. CIT (A) goes to prove that apparently, the same cannot be treated as business expenses without perusing the exact nature and detail of the expenses. Ld. CIT (A) has merely sustained the addition on the basis of estimation without calling upon the detail as to the nature thereof and without providing an opportunity of being heard to the AO. So, in these circumstances, the question framed is answered in favour of the assessee and this issue is remanded to the file of the ld. CIT (A) to decide afresh by providing an opportunity of being heard to the assessee Addition to the book profit computed u/s 115JB instead of addition to the normal loss computed under the Act - Held that - Hon ble Supreme Court in Apollo Tyres Ltd. (2002 (5) TMI 5 - SUPREME Court ) has held that the AO while computing the book profit of a company u/s 115JB of the Act has only the power of examining whether the books of account were certified by the authorities under the Companies Act or having been properly maintained under the Companies Act. In the instant case, undisputedly, the AO has not found any discrepancies in the audited books of account relied upon by the assessee company. So, in these circumstances, the AO to compute the tax liability u/s 115JB in accordance with law laid down by Hon ble Apex Court in Apollo Tyres Ltd. (supra). - Decided in favour of assessee.

Summary

Issues Involved:
1. Whether the CIT(A) erred in law and facts by not quashing the order passed by the AO and confirming the disallowance of other expenses.
2. Whether the CIT(A) erred in sustaining the disallowance of expenses merely on the basis of guesswork and estimation.
3. Whether the book profit under Section 115JB of the Income-tax Act should be considered as per the return of income for taxation purposes.

Detailed Analysis:

Issue 1: Confirmation of Disallowance of Other Expenses
The appellant, M/s. Hans Ispat Limited, challenged the orders passed by the Commissioner of Income-tax (Appeals) for the Assessment Years 2007-08 to 2010-11. The main contention was that the CIT(A) erred in law and facts by not quashing the order passed by the Assessing Officer (AO) and confirming the disallowance of other expenses. The AO had made additions by disallowing 10% of the expenses debited by the assessee to the total indirect expenses in the profit & loss account, citing the failure of the assessee to file the audited balance sheet and profit & loss account of relevant financial years or substantiate the expenses with documentary evidence. The CIT(A) partly allowed the appeals but sustained the disallowance of significant amounts for each assessment year.

Issue 2: Disallowance Based on Guesswork and Estimation
The Tribunal examined whether the CIT(A) erred in sustaining the disallowance of expenses merely on the basis of guesswork and estimation. It was found that the AO had made disallowances at a flat rate of 10% of the indirect expenses, and the CIT(A) sustained these disallowances without disturbing the rate but only disallowed expenses with elements of non-business or personal nature. The Tribunal noted that the assessee had maintained its books of account in the regular course of business and had them audited statutorily, with no discrepancies found by the AO. The Tribunal concluded that the disallowance was based on estimation and guesswork without proper examination of the nature and details of the expenses. Therefore, the issue was remanded to the CIT(A) for fresh consideration, providing an opportunity for the assessee to be heard.

Issue 3: Computation of Book Profit under Section 115JB
The third ground related to the addition to the book profit computed under Section 115JB of the Income-tax Act, 1961, instead of the addition to the normal loss computed under the Act. The CIT(A) directed the AO to compute the tax liability under Section 115JB strictly in accordance with the law but did not provide clarity on the settled law. The Tribunal referred to the Supreme Court judgments in Apollo Tyres Ltd. vs. CIT and Malayala Manorama Co. Ltd. vs. CIT, which held that the AO has no leeway in making adjustments to the net profit declared in the books of account while computing the book profit under Section 115JB. Since the AO found no discrepancies in the audited books of account, the Tribunal directed the AO to compute the tax liability under Section 115JB in accordance with the law laid down by the Supreme Court.

Conclusion:
All the appeals of the assessee were allowed for statistical purposes, with the issues remanded to the CIT(A) for fresh consideration and proper examination of the nature and details of the expenses, and the AO directed to compute the tax liability under Section 115JB in accordance with the Supreme Court's rulings. The order was pronounced in open court on August 25, 2017.