2018 (12) TMI 577 - AT - Income Tax

Appeal partially allowed reducing disallowance under Sec. 68 & purchases, revenue's appeal dismissed

M/s Mishka Gold Jewellery Ltd. Versus Addl. Commissioner of Income Tax- 4 (2), Mumbai And Deputy Commissioner of Income Tax-4 (2), Mumbai And M/s Mishka Gold Jewellery Ltd.

The assessee's appeal was partly allowed, reducing the disallowance of traveling expenses and deleting the additions under Sec. 68 and for purchases. The ... Disallowance of 10% of the “miscellaneous expenses” - Held that:- Assessee had not maintained any log book/record in respect of telephone expenses, vehicle expenses and hotel expenses, as a result whereof the factum of the said expenses having been incurred wholly and exclusively for the purpose of the business of the assessee cannot be established beyond any scope of doubt. CIT(A) in order to meet the ends of justice has adopted a liberal approach and restricted the disallowance to 10% of the total expenses booked under the said head of expenditure. No infirmity does emerge from the sustaining of the disallowance of 10% of the total miscellaneous expenses by the CIT(A). No reason to dislodge the sustaining of the disallowance of 10% of the miscellaneous expenses by the CIT(A), uphold his order to the said extent. The Ground of appeal No. 1 raised by the assessee is dismissed. Disallowance of 25% of the travelling expenses - Held that:- Assessee had failed to conclusively establish the incurring of the travelling expenses and its nexus with its business, thus are of the view that the lower authorities were fairly justified in disallowing a part of the said expenses. However, at the same time, we are unable to persuade ourselves to endorse the disallowance of 25% of the said expenses which as per our considered view is highly exorbitant in the backdrop of the scale of the business of the assessee. There is substantial force in the contention of the A.R that keeping in view the substantial turnover of more than ₹ 610 crores of the assessee company for the year under consideration, incurring of travelling expense to the extent of ₹ 15,08,143/- can safely be held to be a miniscule amount. We the nature of business of the assessee company, therein restrict the disallowance of the travelling expense to the extent of 10% of the total amount of such expenses. Disallowance u/s 36(1)(ii) - Held that:- A matter of fact that no such payment was made to the said director in the earlier years. We have given a thoughtful consideration to the contentions raised by the A.R in support of its claim that the remuneration of ₹ 36 lac paid by the assessee company to Mr. Mohit Kamboj, director for the services rendered by him was not liable to be disallowed under Sec.36(1)(ii), but are unable to persuade ourselves to accept the same. We have perused the observations of the CIT(A) and find ourselves to be in agreement with the well reasoned view taken by him that the amount of ₹ 36 lac paid by the assessee company to Mr. Mohit Kamboj, director was rightly disallowed by the A.O under Sec. 36(1)(ii). We thus finding no infirmity in the order of the CIT(A) in context of the issue under consideration uphold his order to the said extent. The Ground of appeal No. 3 raised by the assessee is dismissed. Unexplained cash credit u/s 68 - Held that:- The adverse inferences which have been drawn by the lower authorities on the ground that the said concerns had made substantial payments of amounts to Mr. Mohit Kamboj, in our considered view the same as observed by us hereinabove, being independent transactions will have no bearing on the adjudication of the genuineness of the purchases claimed by the assessee to have been made from the said respective parties. Apart therefrom, in the absence of any irrefutable evidence which would prove to the hilt the in-genuineness of the “labour charges” of ₹ 9,15,684/- claimed by the assessee to have been paid to M/s Arham Jewellery, which had duly reflected a “labour income” of ₹ 30,35,701/- in its profit & loss account for the year under consideration i.e A.Y 2012-13, the adverse inferences drawn by the A.O as regards the veracity of such expenditure is also liable to be vacated. In terms of our aforesaid observations finding no reason to sustain the unsubstantiated estimation of gross profit rate of 2% by the CIT(A), leading to a consequential addition in the hands of the assessee, delete the same. Bogus purchases - Held that:- As deliberated at length on the sustaining of the addition by the CIT(A) to the extent of ₹ 1,71,73,863/- in context of the purchases made by the assessee from the aforementioned three concerns viz. (i) M/s Arham Jewellery; (ii) M/s Dev Jewells; and (iii) M/s Rajeshwari Impex and have deleted the disallowance of ₹ 1,71,73,863/- for the reason that the purchases claimed by the assessee to have been made from the aforementioned concerns cannot be disallowed by alleging the same as bogus in the absence of irrefutable documentary evidence. Thus, in terms of our observations recorded the ground of appeal No. 1 raised by the revenue in respect of the bogus purchases fails. The Ground of appeal No. 1 raised by the revenue is dismissed. Issues Involved:1. Disallowance of 10% of miscellaneous expenses.2. Disallowance of 25% of traveling expenses.3. Disallowance of remuneration paid to the director under Sec. 36(1)(ii) of the Income Tax Act, 1961.4. Addition of loans and share premium under Sec. 68 of the Income Tax Act, 1961.5. Disallowance of purchases.6. Estimation of overall gross profit at 2% of total sales.Detailed Analysis:1. Disallowance of 10% of Miscellaneous Expenses:The assessee challenged the disallowance of Rs. 1,47,246/- out of total miscellaneous expenses of Rs. 14,72,456/-. The Assessing Officer (A.O) had disallowed 20% of these expenses due to lack of proper bills/vouchers, which was reduced to 10% by the Commissioner of Income Tax (Appeals) [CIT(A)]. The Tribunal upheld the CIT(A)'s decision, noting that the disallowance was based on the fact that the expenses were not fully supported by proper documentation.2. Disallowance of 25% of Traveling Expenses:The assessee contested the disallowance of Rs. 3,77,036/- out of total traveling expenses of Rs. 15,08,143/-. The A.O had disallowed 50% of these expenses due to insufficient documentary evidence, which was reduced to 25% by the CIT(A). The Tribunal found the disallowance of 25% to be excessive given the scale of the assessee's business and reduced it to 10%, resulting in a disallowance of Rs. 1,50,814/-.3. Disallowance of Remuneration Paid to Director under Sec. 36(1)(ii):The A.O disallowed Rs. 36,00,000/- paid as remuneration to the director, invoking Sec. 36(1)(ii), which was upheld by the CIT(A). The Tribunal agreed with the lower authorities, noting that the assessee failed to substantiate the payment with a resolution or terms of appointment. The remuneration was not paid in earlier years, and the director held 99.9% of the company's shares, suggesting the payment could have been in lieu of dividends.4. Addition of Loans and Share Premium under Sec. 68:The A.O added Rs. 14,40,82,458/- as unexplained cash credits under Sec. 68, which included Rs. 11,00,00,000/- claimed to be received from the director and Rs. 3,17,12,458/- from another loan. The Tribunal found that the Rs. 11,00,00,000/- was a book entry reversed in the subsequent year and remanded the matter to the A.O for verification. For the Rs. 3,17,12,458/-, the Tribunal deleted the addition, noting that the source of the loan was explained and the requirement to explain the source of the source was effective only from A.Y 2013-14.5. Disallowance of Purchases:The A.O disallowed Rs. 4,83,27,950/- of purchases, suspecting them to be bogus, which was reduced to Rs. 1,71,73,863/- by the CIT(A) based on an overall gross profit estimation. The Tribunal found that the purchases from the three parties were genuine, supported by documentary evidence and accepted by the A.O in subsequent years. The Tribunal deleted the disallowance, noting that the revenue cannot accept sales while disallowing corresponding purchases.6. Estimation of Overall Gross Profit at 2%:The CIT(A) had estimated an overall gross profit at 2% of total sales, leading to a disallowance of Rs. 1,71,73,863/-. The Tribunal found this estimation unsubstantiated and deleted the addition, noting that the trading results were consistent with previous and subsequent years.Revenue's Appeal:The revenue's appeal contested the deletion of the Rs. 4,83,27,950/- addition by the CIT(A). The Tribunal noted that the CIT(A) had not deleted the entire addition but had substituted it with Rs. 1,71,73,863/-. The Tribunal dismissed the revenue's appeal, upholding the deletion of the disallowance by the CIT(A).Conclusion:The assessee's appeal was partly allowed, reducing the disallowance of traveling expenses and deleting the additions under Sec. 68 and for purchases. The revenue's appeal was dismissed.