2019 (2) TMI 1128 - AT - Income Tax

Assessee's Appeal Allowed, Disallowance Deleted under Income Tax Act

The Bombay Samachar Pvt. Ltd. Versus Dy. Commissioner of Income Tax Circle–2 (1) (1), Mumbai

The appeal filed by the assessee was allowed, and the disallowance made under Section 40A(2)(a) of the Income Tax Act was deleted. The tribunal found that ... Disallowance u/s 40A(2) - payment of remuneration to whole time directors - HELD THAT:- As decided in assessee's own case [2018 (11) TMI 1113 - ITAT MUMBAI] it is evident that the assessee had been showing loss continuously for past several years and the AO has also accepted loss shown by the assessee. That being the case, there cannot be any intention on the part of the assessee to evade tax by shifting profit. It is equally important to note that the remuneration paid to the directors have been offered by them to tax while filing their individual tax returns for the respective assessment years. This fact is evident from the copies of the income tax returns of the concerned directors filed before us by the learned Sr. Counsel. Not disputed that the concerned directors are assessed to tax at the maximum rate of 30%. We are of the considered view that the provisions of section 40A(2) of the Act are not attracted to the payment made to the directors. Thus we are of the view that the disallowance made under section 40A(2)(a) in the impugned assessment years are unsustainable. - Decided in favour of assessee. Issues Involved:1. Disallowance under Section 40A(2) of the Income Tax Act, 1961 on account of payment of remuneration to whole-time directors.Issue-wise Detailed Analysis:1. Disallowance under Section 40A(2) of the Income Tax Act, 1961:The solitary contested ground in the appeal relates to the disallowance made by the Assessing Officer (AO) under Section 40A(2) of the Income Tax Act, 1961, which was upheld by the Commissioner of Income Tax (Appeals) [CIT(A)].The assessee contended that this issue had been previously decided on merits in its favor by the Hon’ble ITAT in earlier assessment years (AY 2007-08, 2008-09, 2009-10, and 2010-11). The AO had disallowed the remuneration paid to three whole-time directors, deeming it excessive and unreasonable compared to the fair market value and legitimate business needs. The AO noted the remuneration had significantly increased over the years despite the company showing losses in most of those years.The learned AR for the assessee argued that the remuneration paid was consistent with industry standards and had been accepted in previous scrutiny assessments. The AR emphasized that the AO had not provided any material evidence to prove that the remuneration was excessive or unreasonable. The AR also pointed out that the directors had paid taxes on the remuneration received, thus negating any tax evasion motive.The learned DR supported the AO’s observations and cited various case laws to justify the disallowance.The tribunal examined the facts and legal provisions under Section 40A(2) of the Act, which necessitate proving that the payment is excessive or unreasonable with respect to the fair market value, business needs, or benefits derived. The tribunal found that the AO had failed to provide concrete evidence to substantiate the claim of excessive remuneration. It was noted that the remuneration had been consistently paid over the years and accepted in earlier assessments.The tribunal also observed that the directors’ shareholding was only 15%, which did not support the AO’s claim of evading the provisions of Section 2(22)(e) of the Act. Furthermore, the directors had declared the remuneration in their tax returns and paid taxes at the maximum rate, eliminating any tax evasion concerns.The tribunal concluded that the disallowance made under Section 40A(2)(a) was unsustainable, as the AO had not demonstrated that the payment was excessive or unreasonable. The tribunal followed the principle of judicial consistency and applied the findings from the earlier years to the present case.Conclusion:The appeal filed by the assessee was allowed, and the disallowance made under Section 40A(2)(a) was deleted. The tribunal emphasized the importance of providing concrete evidence when invoking provisions related to excessive or unreasonable payments and upheld the principle of consistency in judicial decisions. The order was pronounced in the open court on 15th January 2019.