2018 (11) TMI 788 - AT - Income Tax

Addition on ad hoc basis the repairs and maintenance expenses - nature of expenditure - revenue or capital expenditure - Held that - These expenses cannot be treated as capital in nature more-so the assessee has discharged its onus by bringing on record cogent evidences to substantiate that these expenses were in the nature of bringing the factory building to working/running condition which was otherwise hit by cyclone and no new addition of capacity/extension of building was undertaken by the assessee. It was for the revenue to have brought on record cogent evidences to substantiate that the assessee has got benefit of enduring nature by way of additions to factory building which could be classified as capital in nature but in the instant case, no incriminating material is brought on record to substantiate that there is any extension of building or addition in the capacity of the factory building by way of extension etc.. Thus, Revenue merely saying that the amount spent on repairs are on the higher side vis-a-vis the book value of the building is not sufficient to prejudice the assessee in the absence of cogent material to discredit the version of the assessee. Hence this ground is decided in favour of the assessee and against the Revenue. The depreciation allowed earlier by the authorities shall consequently be reversed for all the affected years. - Decided against revenue Allowability of commission expenses paid by the assessee - allowable business expenditure - TDS liability - Held that - The facts itself are disputed by both the parties which need verification by authorities as to whether deduction/payment of Income-tax at source was undertaken with respect to payment of commission being hit by provisions of Section 40(a)(ia), non consideration of CBDT circular no. 7/2009 dated 22nd October 2009 withdrawing CBDT circular no. 23 dated 23.07.1969 so far as payments of commission expenses to foreign agents, we are of the considered view that in substantial interest of justice and in all fairness to both the parties, the matter need to be set aside and restored to the file of the AO for denovo determination of the issue on merits in accordance with law. We have not commented on the merits of the issue but however our above observations shall be considered by the AO while adjudicating the issue s. The AO shall admit all evidences/contentions submitted by the assessee in its defence in de-novo proceedings - Decided in favour of assessee for statistical purposes

Summary

Issues Involved:
1. Classification of repairs and maintenance expenses as capital or revenue in nature.
2. Disallowance and enhancement of commission expenses.

Issue-Wise Detailed Analysis:

1. Classification of Repairs and Maintenance Expenses:
The primary issue was whether the repairs and maintenance expenses totaling ?83,12,445 should be treated as capital or revenue expenses. The Assessing Officer (AO) observed that the expenses were substantial compared to the book value of the factory buildings and considered them capital in nature, allowing depreciation at 10%. The assessee argued that these were recurring expenses necessary for the smooth functioning of the business and did not create new assets. The CIT(A) partially agreed, allowing some expenses as revenue but capitalizing ?61,51,749. The Tribunal, however, concluded that the expenses were for current repairs to make the factory operational after cyclone damage and should be treated as revenue expenses. The Tribunal ordered the reversal of depreciation allowed earlier.

2. Disallowance and Enhancement of Commission Expenses:
The second issue concerned the disallowance of commission expenses paid to M/s. Maitry Exports P. Ltd. and Mr. Pabba Upendra Gupta. The AO disallowed ?61,18,000 of the commission expenses, considering them excessive and not justified by the additional turnover generated. The CIT(A) further enhanced the disallowance to ?1,52,00,000, questioning the genuineness and reasonableness of the payments, especially to related parties and in round figures. The Tribunal noted that the burden of proof was on the assessee to substantiate the expenses but found that the AO and CIT(A) did not conduct sufficient inquiries. The Tribunal set aside the issue for de novo determination by the AO, emphasizing the need for proper verification and consideration of all relevant facts, including compliance with TDS provisions and the impact of the withdrawal of CBDT Circular No. 23 dated 23.07.1969 by Circular No. 7/2009 dated 22.10.2009.

Conclusion:
The Tribunal allowed the appeal for statistical purposes, directing the AO to re-examine the issues with proper verification and adherence to legal principles, ensuring a fair opportunity for the assessee to present its case.