2016 (10) TMI 969 - AT - Income Tax

Tribunal grants appeals for tax years 2006-2011, requires verification of payment dates.

Rahee Track Technologies Pvt. Ltd. Versus Deputy Commissioner of Income-tax

The tribunal allowed the appeals for AYs 2006-07 to 2009-10, directing the deletion of disallowances due to the absence of incriminating material. For AYs ... Disallowances of Commission, PF/ ESI , Fringe Benefit Tax u/s 40(a) and Bonus u/s 43B - search assessments framed u/s 153A - Held that: -Various disallowances made towards Commission, PF/ESI and FBT for the Asst Years 2006-07 to 2009-10 , which were unabated / concluded assessments, on the date of search, deserves to be undisturbed in the absence of any incriminating material found in the course of search and accordingly directed to be deleted. Hence we hold that the ld AO ought to have only followed the old assessed income u/s 143(3) for the aforesaid Asst Years 2006-07 to 2009-10. Since the issues are addressed on preliminary ground of absence of incriminating materials, we refrain to give our findings on the merits of the disallowances made towards Commission , PF/ESI and FBT for Asst Years 2006-07 to 2009-10. Accordingly the grounds raised by the assessee in this regard for those asst years are allowed. Disallowance of commission paid - Held that:- It is not in dispute that the commission @ 3% is paid to M/s Steel Crackers Pvt Ltd on sales made through them and in respect of Creators Corporation , commission was paid for policy decision resulting into sales of company’s products which varied from ₹ 450 to ₹ 2000 on sale of each product. All these facts are brought out clearly in the assessment order itself. We find that in addition to the above, the assessee had also provided the agreement copy , Ledger Account , TDS details on commission payments , Copy of bills raised by parties and IT return and accounts including balance sheet of recipient companies wherein the said commission income has been duly offered to tax by them. All these evidences clearly prove beyond doubt the claim of expenditure on account of commission. We find that the disallowance has been made merely based on wild allegation and on surmise and conjecture. In this regard, the support drawn by the ld AR by placing reliance on the decision of the Hon’ble Supreme Court in the case of Dhakeshwari Cotton Mills Ltd vs CIT reported in (1954 (10) TMI 12 - SUPREME Court ) is well founded. Hence in the facts and circumstances, we hold that there is absolutely no material brought on record to disallow 50% of the claim made by the assessee and accordingly the entire disallowance made on this account deserves to be deleted Disallowance made on account of employees contribution to PF / ESI - Held that:- It needs to be verified whether the employees contribution to PF / ESI have been remitted before the due date of filing the return of income by the assessee. Hence we deem it fit and appropriate to set aside this issue to the file of the ld AO to verify the said dates and if the same are remitted before the due date of filing return of income, deduction is to be granted to the assessee. - Decided in favour of assessee by way of remand Disallowance of bonus, leave salary u/s 43B - Held that:- We find that the matter requires to be verified by the ld AO with regard to the actual date of remittance of the aforesaid expenditure which would have a bearing on the allowability of the expenditure in terms of section 43B of the Act. We direct the ld AO to verify the same and decide the issue in accordance with law - Decided in favour of assessee by way of remand Issues Involved:1. Justification of disallowances in search assessments under Section 153A of the Income Tax Act without incriminating material.2. Disallowance of commission payments.3. Disallowance of employees' contribution to PF/ESI.4. Disallowance of bonus and leave salary under Section 43B of the Income Tax Act.Issue-wise Detailed Analysis:1. Justification of Disallowances in Search Assessments under Section 153A without Incriminating Material:The primary issue in these appeals is whether the CIT(A) was justified in upholding various disallowances of expenses in search assessments framed under Section 153A of the Income Tax Act in the absence of any incriminating material found during the search. The search operation was conducted on 22.09.2011, and the assessments for AYs 2006-07 to 2009-10 were completed under Section 143(3) before the search. The assessee argued that these years were unabated assessments and, without incriminating material found during the search, the originally assessed income should not be disturbed. The AO, however, proceeded with disallowances, claiming that Section 153A allows reassessment irrespective of incriminating materials. The tribunal referenced several judicial precedents, including CIT vs. Kabul Chawla and CIT vs. Veerprabhu Marketing Ltd, which held that additions in concluded assessments under Section 153A require incriminating material found during the search. The tribunal concluded that the disallowances for AYs 2006-07 to 2009-10 were unjustified and should be deleted, as no incriminating material was found.2. Disallowance of Commission Payments:For AYs 2010-11 and 2011-12, the issue was the disallowance of commission payments to certain parties. The AO disallowed 50% of the commission payments, claiming they were excessive, especially since the bulk of the sales were to the Indian Railways, a government agency. The assessee provided agreements, ledger accounts, TDS details, bills, and the recipients' tax returns to support the commission payments. The CIT(A) upheld the disallowance, stating the assessee failed to prove the services rendered justified the commission amount. The tribunal found that the assessee had discharged its onus by providing comprehensive evidence and that the AO's disallowance was based on mere suspicion without material evidence. The tribunal deleted the disallowance, emphasizing that no addition should be made without material evidence, referencing Dhakeshwari Cotton Mills Ltd vs. CIT.3. Disallowance of Employees' Contribution to PF/ESI:For AY 2011-12, the AO disallowed employees' contribution to PF/ESI amounting to Rs. 23,846, citing delayed deposit beyond the due date prescribed under the respective Acts. The assessee argued that the contributions were remitted before the due date of filing the return of income. The tribunal referenced several judicial decisions, including CIT vs. Vijay Shree Limited and CIT vs. Alom Extrusions Ltd, which held that contributions remitted before the due date of filing the return are allowable. The tribunal remanded the issue to the AO to verify the actual remittance dates and allow the deduction if the contributions were paid before the due date.4. Disallowance of Bonus and Leave Salary under Section 43B:For AYs 2010-11 and 2011-12, the AO disallowed bonus and leave salary under Section 43B, as reported unpaid in the tax audit report. The assessee contended that these were paid before the due date of filing the return of income. The tribunal directed the AO to verify the payment dates and allow the deduction if the payments were made before the due date. The tribunal emphasized the need for verification in line with Section 43B requirements.Summary:The tribunal allowed the appeals for AYs 2006-07 to 2009-10, directing the deletion of disallowances due to the absence of incriminating material. For AYs 2010-11 and 2011-12, the tribunal allowed the appeals for statistical purposes, directing the AO to verify the payment dates for PF/ESI contributions and bonus/leave salary before finalizing the deductions. The tribunal's decisions were grounded in judicial precedents and emphasized the necessity of material evidence for disallowances.