2007 (8) TMI 491 - AT - Income Tax

Tribunal clarifies deduction rules under Income-tax Act, upholds sales promotion expense disallowance

Trimurti Travels & Tours (P.) Ltd. Versus Income-tax Officer, Ward 3(3) (3), Mumbai

The Tribunal partly allowed the appeals of the assessee in a case involving the computation of deduction under section 80HHD of the Income-tax Act, 1961, ... Entertainment expenditure , Deductions - Hotels/Tour operators Issues Involved:1. Computation of deduction under section 80HHD of the Income-tax Act, 1961.2. Disallowance of expenditure under the head 'Sales promotion expenses'.Issue-wise Detailed Analysis:1. Computation of Deduction under Section 80HHD:The first issue pertains to the computation of deduction under section 80HHD of the Income-tax Act, 1961. The assessee, engaged in the business of tour and travel operations, was eligible for this deduction. Initially, the deduction was accepted and allowed by the Assessing Officer (AO) during the original assessment. However, the assessee later sought rectification under section 154, claiming that the deduction was not computed correctly as per the statutory provisions. The AO rejected this application, and the CIT(A) upheld the AO's decision.Upon further appeal, the Tribunal admitted the additional ground raised by the assessee and restored the matter to the AO for fresh adjudication. During the fresh proceedings, the AO agreed that the deduction was not correctly computed but rejected the assessee's claim for a higher deduction on the grounds that it was not made through a revised return under section 139(5). The AO also noted discrepancies in the Profit & Loss (P&L) account and cited the Supreme Court's decision in Panchmahal Steel Ltd. v. U.A. Joshi, ITO, which emphasized that revised returns could not be filed after a draft order under section 144B.The Tribunal, however, held that once the additional ground was admitted, the AO was duty-bound to compute the deduction correctly as per section 80HHD. The Tribunal further noted that while the deduction under clause (a) of section 80HHD(1) was straightforward, the dispute lay in the quantification under clause (b), which required the creation of a reserve by debiting the P&L account of the relevant previous year. The Tribunal referred to the Supreme Court's judgment in Shri Shubhlaxmi Mills Ltd. and Karimjee (P.) Ltd. v. Dy. CIT, emphasizing that the reserve must be created in the year in which the deduction is to be allowed.The Tribunal directed the AO to:1. Determine the correct amount of eligible deduction as per the formula in sub-section (3) of section 80HHD.2. Allow 50% of such amount as per clause (a) of section 80HHD(1).3. Verify if the assessee complied with clause (b) of section 80HHD by creating the additional reserve for each year.4. Ensure the allowance of the additional claim is subject to the fulfilment of sub-section (4) of section 80HHD.2. Disallowance of Expenditure under the Head 'Sales Promotion Expenses':The second issue involves the disallowance of expenditure under 'Sales promotion expenses'. The assessee incurred expenses on food and beverages provided to clients, which the AO disallowed under section 37(2A) of the Act. The Tribunal upheld the CIT(A)'s decision, agreeing that such expenses fell within the provisions of section 37(2A).Other Grounds:The other grounds raised by the assessee were not pressed before the Tribunal and were thus dismissed.Conclusion:In conclusion, the appeals of the assessee were partly allowed. The Tribunal provided detailed directions for the correct computation of the deduction under section 80HHD and upheld the disallowance of sales promotion expenses under section 37(2A).