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2019 (4) TMI 701 - AT - Income TaxAddition on account of bonus paid to the Director employee - addition u/s 115-O considering the same as dividend - liability to pay the tax @ 15% on account of dividend distributed by it to its shareholders - whether provisions contained u/s 115-O being non-obstante provisions override the general provisions of section 36(1)(ii)? - HELD THAT - As decided in NEW SILK ROUTE ADVISORS PRIVATE LTD. VERSUS DCIT-7(1), MUMBAI 2015 (4) TMI 795 - ITAT MUMBAI Payment of bonus to shareholder-employees had resulted in payment of more taxes in comparison to tax payable had the same amount been paid as dividend to shareholders. So, it could not be held that it was a device to evade taxes. Not only this, it was found that the shareholders were professionally highly qualified. Payment of bonus was a business decision and till it was not proved that same was not paid actually, it could not be disallowed. Hon ble Delhi High Court in case of Chrys Capital 2015 (4) TMI 949 - DELHI HIGH COURT held that when shareholders also held directorial position in the assessee s company, the deduction claimed by the assessee u/s 36 (1)(ii) of the Act in respect of bonus paid to its shareholder employees was allowable. We are of the considered view that AO as well as ld. CIT (A) have erred in making addition on account of bonus paid to the Director employee which is ordered to be deleted. Disallowance of legal and consultancy charges - assessee claimed bogus expenses - HELD THAT - When the entire case of the Revenue in treating legal and consultancy service charges as bogus hinges upon statement of Shri Ravinder Kumar Shukla, ex-Director of the assessee company, his statement cannot be read into evidence against the assessee unless right to cross-examination of Shri Ravinder Kumar Shukla is not provided to the assessee. Assessee claimed to have paid service tax on the amount paid to M/s. Rockhard Infrastructure Pvt. Ltd. and has also filed no TDS certificate issued by the Income-tax Department to M/s. Rockhard Infrastructure Pvt. Ltd., which fact prima facie goes to prove that the payment was made. So, in these circumstances, we deem it necessary to set aside this issue to the AO who shall provide adequate opportunity of being heard to the assessee by providing the right to cross examine Shri Ravinder Kumar Shukla and to have copies of the documents/ statements relied upon by the AO. Consequently, grounds determined in favour of the assessee for statistical purposes.
Issues Involved:
1. Sustaining the addition of ?12,00,000/- representing the bonus paid to the director employee. 2. Sustaining the addition of ?25,00,000/- by disallowing legal and professional expenses. 3. Lack of proper opportunity of being heard provided by the AO. 4. The impugned appellate order being arbitrary, illegal, and in violation of contemporary jurisprudence. Issue-wise Detailed Analysis: Issue 1: Sustaining the addition of ?12,00,000/- representing the bonus paid to the director employee - Arguments by the Assessee: The assessee contended that the bonus paid to the director was not out of dividend or profit and that the director paid tax on the bonus at the highest rate of 30%, whereas the company would have paid tax at 15% on dividends. The assessee relied on the decision of the Delhi High Court in Chrys Capital vs. DCIT and the Tribunal's decision in New Silk Route vs. DCIT. - Arguments by the Revenue: The Revenue argued that the bonus paid was double the director's salary, unsupported by any agreement or Board’s resolution, and there was no evidence linking the bonus to services rendered. - Tribunal's Findings: The Tribunal noted that the director, holding 50% shares, was entitled to receive profit or dividend. It was established that section 115-O, being a non-obstante provision, overrides section 36(1)(ii). The Tribunal found that the payment of ?12,00,000/- as a bonus was not a tax evasion ploy since the director paid tax at 30%. The Tribunal cited the decision in New Silk Route and Chrys Capital, which supported the assessee's claim. Consequently, the Tribunal ordered the deletion of the ?12,00,000/- addition, determining the issue in favor of the assessee. Issue 2: Sustaining the addition of ?25,00,000/- by disallowing legal and professional expenses - Arguments by the Assessee: The assessee claimed that ?25,00,000/- was paid to M/s. Rockhard Infrastructure Pvt. Ltd. for legal and consultancy services, including project reports and specialized research data. The assessee provided the address and director details of M/s. Rockhard Infrastructure Pvt. Ltd. - Arguments by the Revenue: The Revenue, based on the statement of the assessee's director, found the expenditure bogus as the director admitted to never visiting the office of M/s. Rockhard Infrastructure Pvt. Ltd. and could not substantiate the expertise of the company. - Tribunal's Findings: The Tribunal emphasized that the statement of the ex-director could not be used against the assessee without providing the right to cross-examine. The assessee had paid service tax on the amount and filed a no TDS certificate, indicating the payment's genuineness. The Tribunal set aside the issue to the AO, instructing to provide the right to cross-examine the ex-director and access to relevant documents. Thus, the issue was determined in favor of the assessee for statistical purposes. Issue 3: Lack of proper opportunity of being heard provided by the AO - Tribunal's Findings: The Tribunal noted that the statement of the ex-director was used without allowing the assessee to cross-examine, violating the principles of natural justice. The Tribunal directed the AO to provide an adequate opportunity of being heard, ensuring compliance with procedural fairness. Issue 4: The impugned appellate order being arbitrary, illegal, and in violation of contemporary jurisprudence - Tribunal's Findings: The Tribunal found merit in the assessee's contention that the appellate order was arbitrary due to the procedural lapses in not allowing cross-examination. The Tribunal's directions to the AO to re-examine the issues with procedural fairness addressed this concern. Conclusion: The appeal was partly allowed. The addition of ?12,00,000/- on account of the bonus paid to the director was deleted. The issue of ?25,00,000/- disallowed as legal and professional expenses was remanded back to the AO for re-examination, ensuring the assessee's right to cross-examine and access relevant documents. The Tribunal emphasized adherence to procedural fairness and natural justice principles.
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