2010 (3) TMI 1199 - AT - Income Tax

Non-resident company's project expenses allowed as deductions; penalties dismissed for procedural lapses

Asstt. Commissioner of Income Tax, Circle-6, Baroda Versus Skanska Cementation International Ltd. (Formerly Kvaener Construction International Ltd.), C/o. C.C. Chokshi & Co. and vice-versa TheADIT (Int. Taxn.), Ahmedabad Versus Skanska Cementation International Ltd. (Formerly Kvaener Construction International Ltd

Asstt. Commissioner of Income Tax, Circle-6, Baroda Versus Skanska Cementation International Ltd. (Formerly Kvaener Construction International Ltd.), C/o. ... Issues Involved:1. Disallowance of several expenditures like salary, air fares, visa charges, and medical expenses.2. Application of Section 44C of the Income Tax Act.3. Disallowance of various expenses reimbursed to the sub-contractor.4. Validity and applicability of Section 271(1)(c) penalty proceedings.5. Treatment of expenditure on temporary structures as capital or revenue in nature.Detailed Analysis:1. Disallowance of Several Expenditures:- Facts and Arguments: The assessee, a non-resident company, incurred expenses on expatriate personnel for a project in Gujarat. The Assessing Officer (AO) disallowed these expenses, arguing they were the responsibility of the sub-contractor.- Findings: The ITAT found that the assessee was still responsible for the overall execution and supervision of the project, despite subcontracting parts of it. The expenses were incurred wholly and exclusively for the business. The ITAT allowed 5% of the salary expenses and related costs as deductible.- Conclusion: The expenses were necessary for the business and partially allowed as deductions.2. Application of Section 44C:- Facts and Arguments: The AO applied Section 44C, limiting the deduction of head office expenses, arguing that these were incurred outside India.- Findings: The ITAT held that the expenses were specific to the Dahej project and not general administrative expenses. Therefore, Section 44C was not applicable.- Conclusion: The expenses were project-specific and not subject to the limitations of Section 44C.3. Disallowance of Various Expenses Reimbursed to the Sub-Contractor:- Facts and Arguments: The AO disallowed expenses reimbursed to the sub-contractor, arguing they were the sub-contractor's responsibility.- Findings: The ITAT found that the expenses were necessary for the project and incurred by the assessee. The disallowance was not justified.- Conclusion: The expenses were legitimate business expenses and allowed as deductions.4. Validity and Applicability of Section 271(1)(c) Penalty Proceedings:- Facts and Arguments: The AO initiated penalty proceedings under Section 271(1)(c) for concealment of income and furnishing inaccurate particulars.- Findings: The ITAT noted that the penalty order was passed beyond the time prescribed under Section 275. The penalty proceedings were dropped earlier, and no fresh proceedings were initiated in the subsequent assessment order.- Conclusion: The penalty order was void ab initio and canceled.5. Treatment of Expenditure on Temporary Structures:- Facts and Arguments: The assessee incurred expenses on temporary structures at the project site. The AO treated these as capital expenditure, allowing depreciation at a lower rate.- Findings: The ITAT found that the structures were temporary and necessary for the business. The expenditure was revenue in nature.- Conclusion: The expenditure was allowed as revenue expenditure, and the entire addition was deleted.Summary:The ITAT Ahmedabad dealt with cross appeals involving multiple issues related to the disallowance of business expenses, application of Section 44C, and the validity of penalty proceedings under Section 271(1)(c). The tribunal found that the expenses were necessary for the business and incurred wholly and exclusively for the project, thus allowing them as deductions. The penalty proceedings were found to be void due to procedural lapses and the time-barred nature of the penalty order. The expenditure on temporary structures was considered revenue in nature and allowed as a deduction. The appeals were decided in favor of the assessee, with the departmental appeals being dismissed.