2022 (7) TMI 944 - AT - Income Tax

Addition u/s 41(1) - remission of liability - amount written off by the assessee company in respect of unpaid expenses like commission, Royalty, knowledge know-how fees etc. to br payable to Scholler Textile AG - Assessee submitted that Scholler Textile AG hold 74% of the share capital and is a promoter of the company. accumulated losses of the company and the sum payable to the holding company remained unpaid - HELD THAT - Scholler Textiles AG is the promoter of the assessee company. The assessee was making consistent losses for the last several years and therefore, the promoter company was supporting the assessee in continuing its survival. The sums payable to the promoter towards commission, knowhow fees and royalty are outstanding constantly for 2012-13 onwards. On careful examination of section 41(1) of the Act, we find that assessee has not obtained any amount in respect of the above liability outstanding and there is no remission of the liability. Unless, there is an evidence of remission or cessation of liability, provisions of Section 41(1) of the Act does not apply. In fact, in this case assessee has acknowledged the existence of liability in its balance sheet year to year, shown relationship with the creditor and reasons for non-payment. In view of this, we do not find any infirmity in the order of the learned CIT (A) in deleting the above addition. Accordingly, the order of the learned CIT (A) is confirmed. The appeal of the learned Assessing Officer is dismissed.

Summary

Issues:
1. Addition under section 41(1) of the Income-tax Act, 1961 for unpaid expenses.
2. Disallowance of expenses transferred to another company and AIR mismatch.

Analysis:

Issue 1: Addition under section 41(1) of the Income-tax Act, 1961 for unpaid expenses:
The appeal was filed by the Income Tax Officer against the order passed by the Commissioner of Income-tax (Appeals) regarding the addition made under section 41(1) of the Act for unpaid expenses by the assessee company. The Assessing Officer questioned the non-payment of Rs. 3,12,73,991/- to Scholler Textile AG for various expenses. The assessee, facing financial difficulties, explained the outstanding amount due to the promoter company. The Assessing Officer added the balance amount under section 41(1) as remission of liability. However, the CIT (A) held that the liability still existed as shown in the books of accounts, and without evidence of remission or cessation of liability, the provisions of section 41(1) did not apply. The Tribunal confirmed the CIT (A)'s decision, emphasizing that unless there is evidence of remission or cessation of liability, the section does not apply. The appeal of the Assessing Officer was dismissed.

Issue 2: Disallowance of expenses transferred to another company and AIR mismatch:
The Assessing Officer disallowed Rs. 24,12,250/- as business promotion expenses transferred to a director's account and noted an AIR mismatch of 7,95,698/-. The CIT (A) confirmed the disallowance and upheld the addition due to the lack of evidence produced by the assessee. The Tribunal dismissed the cross objection of the assessee and confirmed the disallowance based on the lack of evidence regarding the expenses incurred wholly and exclusively for business purposes and the AIR mismatch. The total income of the assessee was determined at Rs. 3,52,97,150/- in the assessment order under Section 143(3) of the Act.

In conclusion, the Tribunal upheld the CIT (A)'s decision to delete the addition under section 41(1) of the Act, emphasizing the requirement of evidence for remission or cessation of liability. The Tribunal dismissed the appeal of the Assessing Officer and the cross objection of the assessee, confirming the decisions regarding the disallowance of expenses and AIR mismatch.