2022 (5) TMI 1223 - AT - Income Tax

Disallowing excess directors remuneration - sum paid towards directors remuneration and that is to the extent of 80% of the net profit - HELD THAT - We noted that the Tribunal in the case of The Bombay Samachar Pvt. Ltd. 2018 (11) TMI 1113 - ITAT MUMBAI has considered the issue of applicability of provisions of section 40A(2)(b) of the Act to the directors remuneration and held that this provision will not apply to the directors payment for holding that the payment is excessive or unreasonable in the absence of any material brought on record to demonstrate that the payment is actually excessive or unreasonable having regard to market rate for the goods, services or facilities availed or the business need of the assessee or commensurate with the benefit derived by the assessee. In the present case before us also the AO has not carried out any exercise for holding the payment of remuneration to the directors that the same is unreasonable or not in consonance with the payment of directors or remuneration. We note that in this year the turnover is at Rs.1,42,13,393/- and profit earned is at Rs.84,40,020/- and remuneration paid to these three directors are at Rs.75,07,380/-. Even it is accepted position that the directors have paid taxes on these remunerations on maximum margin rate and there is no revenue loss to the Department. In view of the above, we are of the view that in the absence of any findings by the AO that the directors remunerations are excessive and unreasonable, we reverse the orders of lower authorities and allow the appeal of assessee.

Summary

Issues:
1. Excessive directors' remuneration disallowed by AO and CIT(A)
2. Applicability of section 40A(2)(b) of the Income Tax Act and Companies Act
3. Comparison with previous year's remuneration and turnover
4. Arguments by assessee and revenue authorities
5. Tribunal's decision on the excessive directors' remuneration

Issue 1: Excessive directors' remuneration disallowed by AO and CIT(A):
The only issue in this appeal was regarding the excessive directors' remuneration disallowed by the Assessing Officer (AO) and confirmed by the Commissioner of Income Tax (Appeals) (CIT(A)). The AO disallowed the excess directors' remuneration amounting to Rs.58,19,376, restricting it to 20% of the net profit as per the Companies Act, Schedule XIV. The CIT(A) upheld the AO's decision, citing the provisions of Section 40A(2)(b) of the Income Tax Act. The assessee contested this decision before the Tribunal.

Issue 2: Applicability of section 40A(2)(b) of the Income Tax Act and Companies Act:
The assessee argued that the provisions of section 40A(2)(b) and Section 198 of the Companies Act, invoked by the AO and CIT(A), were wrongly applied. The assessee contended that these provisions were applicable to public limited companies and not to private limited companies like itself. The Tribunal noted that the AO failed to demonstrate that the directors' remuneration was excessive or unreasonable, considering the turnover and profit figures, and reversed the lower authorities' decision.

Issue 3: Comparison with previous year's remuneration and turnover:
The revenue authorities pointed out that in the previous year, when there was more profit and turnover, no remunerations were paid to the directors. They argued that the provisions of section 40A(2)(b) and the Companies Act were rightly invoked to restrict the remuneration. However, the Tribunal found no evidence to support the claim that the remuneration was excessive or unreasonable, especially since the directors had paid taxes on the remuneration at the maximum rate.

Issue 4: Arguments by assessee and revenue authorities:
The assessee's counsel highlighted that the directors were actively involved in the company's affairs and had paid taxes on the remuneration. They also cited precedents where similar issues were decided in favor of the assessee. On the other hand, the revenue authorities relied on the assessment order and CIT(A)'s decision to support the disallowance of excess remuneration.

Issue 5: Tribunal's decision on the excessive directors' remuneration:
After considering the arguments and facts presented, the Tribunal held that there was no evidence to suggest that the directors' remuneration was excessive or unreasonable. Since the AO failed to provide any basis for deeming the remuneration excessive, and considering that the directors had paid taxes on the remuneration, the Tribunal reversed the decisions of the lower authorities and allowed the appeal filed by the assessee.

This detailed analysis covers the issues of excessive directors' remuneration disallowed by the revenue authorities, the applicability of relevant tax and company laws, comparison with previous year's figures, arguments presented by both parties, and the Tribunal's decision in favor of the assessee.