2018 (3) TMI 1341 - AT - Income Tax

Tribunal remands interest issue, deletes commission and service charge disallowances

Cogent Jewellery Private Limited Versus The Dy. Commissioner of Income Tax, Circle – 6 (2), Mumbai

The Tribunal partially allowed the appeal, remanding the interest expenses issue back to the AO for fresh adjudication. Disallowances related to ... Disallowing the interest expenses - Held that:- In this case, the facts are peculiar that the assessee himself stopped the AO from making further inquiry into nexus by admitting this disallowance. When this amount was contested by assessee in appeals, we are of the view that let the AO be also given fair opportunity to examine the nexus. In case he could not be able to establish the nexus he has to follow the decision of Hon’ble High Court in the case of Reliance Utilities and Power Limited (2009 (1) TMI 4 - BOMBAY HIGH COURT). We remand the matter back to the file of AO for fresh adjudication. Disallowance of commission for short deduction of TDS u/s 194H - addition invoking the provisions of section 40(a)(ia) - Held that:- As regards to the short deduction of TDS no disallowance under section 40(a)(ia) of the Act can be made in view of the decision of Hon’ble Calcutta High Court in the case of CIT vs. S.K. Tekriwal (2012 (12) TMI 873 - CALCUTTA HIGH COURT) and CIT vs. Kishore Rao and Others (2016 (4) TMI 430 - KARNATAKA HIGH COURT). Adhoc disallowance by invoking the provisions of section 40A(2b) being payments made to related parties - Held that:- Prices paid for purchase of jewellery by the assessee company seems to be fair and reasonable and therefore, no part of such price is required to be disallowed by invoking the provisions of Section 40A(2)(a) for the reason that the AO is unable to bring anything on record which proves that the price paid by assessee is excessive or unreasonable. Accordingly, we delete the disallowance and allow this issue of assessee’s appeal. Disallowance of service charges on adhoc basis - Held that:- AO is unable to prove the non-genuineness of the expenditure despite the fact that the assessee has deducted TDS on this expenditure and also paid service charges. Further, entire details were available with the AO and he has not carried out any examination of any of the parties and without that adhoc disallowance at the rate of 25% of the expenditure was made. It means, that the AO has accepted the genuineness of the expenditure and once genuineness of the expenditure is accepted, AO cannot disallow the same on adhoc basis. We delete the disallowance and allow this issue of assessee’s appeal. Issues Involved:1. Disallowance of interest expenses under Section 36(1)(iii).2. Disallowance of commission under Section 40(a)(ia) due to short deduction of TDS.3. Disallowance of signage charges under Section 40(a)(ia) for non-deduction of TDS.4. Disallowance under Section 40A(2)(b) for payments made to related parties.5. Disallowance of service charges on an ad-hoc basis.Issue-wise Detailed Analysis:1. Disallowance of Interest Expenses under Section 36(1)(iii):The assessee contested the disallowance of Rs. 11,27,850/- as interest expenses under Section 36(1)(iii) of the Income Tax Act, 1961. The AO observed that the assessee had advanced interest-free loans while incurring significant interest expenses on borrowings. The CIT(A) upheld the AO's decision, noting that the assessee agreed to the disallowance during assessment proceedings. The Tribunal found that the AO did not investigate the nexus between interest-bearing funds and interest-free advances. The Tribunal remanded the matter back to the AO for fresh adjudication, emphasizing the need to follow the decision in CIT vs. Reliance Utilities and Power Ltd. if the nexus is not established.2. Disallowance of Commission under Section 40(a)(ia) for Short Deduction of TDS:The assessee challenged the disallowance of Rs. 17,13,478/- under Section 40(a)(ia) for short deduction of TDS. The Tribunal noted that TDS was deducted, albeit short, except for one party, Sohum Shoppy Ltd., where no TDS was deducted. Citing the decisions of CIT vs. S.K. Tekriwal and CIT vs. Kishore Rao and Others (HUF), the Tribunal held that short deduction of TDS does not warrant disallowance under Section 40(a)(ia) and directed the AO to delete the disallowance.3. Disallowance of Signage Charges under Section 40(a)(ia) for Non-Deduction of TDS:The assessee did not press this ground, and hence, the Tribunal dismissed it as not pressed.4. Disallowance under Section 40A(2)(b) for Payments Made to Related Parties:The assessee contested the disallowance of Rs. 40,00,000/- out of payments made to Say India Jewellers Pvt. Ltd. under Section 40A(2)(b). The AO and CIT(A) disallowed the amount, suspecting the purchase price to be excessive. The Tribunal found that the assessee justified the purchase price with a gross margin of 43.68% and noted no tax evasion by related parties. The Tribunal concluded that the AO failed to prove the price was excessive and deleted the disallowance.5. Disallowance of Service Charges on an Ad-Hoc Basis:The assessee disputed the ad-hoc disallowance of Rs. 36,00,000/- out of total service charges of Rs. 1,52,09,793/-. The AO made the disallowance due to insufficient details about the deployment of personnel and justification of expenses. The Tribunal observed that the assessee provided substantial evidence, including TDS deductions and invoices. Citing the Delhi High Court's decision in CIT vs. DLF Hilton Hotels, the Tribunal held that the AO did not prove the non-genuineness of the expenditure and deleted the ad-hoc disallowance.Conclusion:The Tribunal partly allowed the appeal for statistical purposes, remanding the issue of interest expenses back to the AO for fresh adjudication and directing the deletion of disallowances related to commission and service charges. The signage charges disallowance was dismissed as not pressed, and the disallowance under Section 40A(2)(b) was deleted.