2021 (4) TMI 912 - AT - Income Tax

Tax Appeals Partially Allowed: Section 43B Disallowance Not Applicable, Educational Cess Deduction Allowed

The appeals filed by the assessee for the Assessment Years 2013-14 and 2014-15 were partially allowed. The Tribunal ruled in favor of the assessee on ... Disallowance made u/s 43B - assessee submits that service tax which was paid to the service provider was payable to the Service Tax Department by the service provider only and not by the assessee - assessee submitted that the assessee paid commission which includes service tax to the service provider and under these circumstances Section 43B of the Act was not applicable to the assessee -HELD THAT:- We hold that Section 43B of the Act does not apply to this payment on the facts and circumstances of the case and hence the disallowance made u/s 43B of the Act is hereby deleted. Ad-hoc disallowance made by the AO - AO disallowed part of the expenses claimed by the assessee on ad-hoc basis on the ground that the expenses incurred for personal purposes cannot be segregated - HELD THAT:- The assessee failed to file supporting bills and vouchers before the AO. In our view, the decision of the AO as confirmed by the ld. CIT(A) on these two issues are ad-hoc and call for no interference for the reason that no bills and vouchers were produced by the assessee before the AO. Thus we uphold the same and dismiss these grounds of the assessee. Additional ground regarding the claim for deduction of educational cess paid - HELD THAT:- We uphold the contention of the assessee that the education cess and higher education cess is allowable as a deduction by applying the propositions of law laid down by the Hon’ble Bombay High Court in the case of Sesa Goa Ltd. [2020 (3) TMI 347 - BOMBAY HIGH COURT]. In the result, this ground of the assessee is allowed. Addition of notional interest - assessee gave loan to Shyam Sundar Kayal (father of a partner of the assessee firm) and he was charged interest @9%, whereas from others who had taken advances from the assessee, the assessee charged interest @12%. The difference amount of 3% was treated as notional income of the assessee and taxed by the AO - HELD THAT:- It is well settled that notional interest cannot be brought to tax - See HIGHWAYS CONSTRUCTION CO. PVT. LIMITED VERSUS COMMISSIONER OF INCOME-TAX [1992 (11) TMI 86 - GAUHATI HIGH COURT] Ad-hoc disallowances made by the AO - HELD THAT:- As assessee failed to produce sufficient evidences before the AO in support of his claim. The AO noted that there was no explanation furnished by the assessee and also vouchers or log books etc. were not proved by the AO. Thus he made an ad-hoc disallowance. The ld. CIT(A) confirmed the same. We find no infirmity in this factual finding of the AO. The assessee in this case failed to discharge the burden of proof that lays on it. Thus we dismiss ground nos. 2, 3 & 4 of the assessee. Issues:1. Disallowance under Section 43B of the Income Tax Act, 1961 for the Assessment Years 2013-14 & 2014-15.2. Ad-hoc disallowance of expenses claimed by the assessee.3. Claim for deduction of educational cess paid.4. Addition of notional interest.Analysis:Issue 1: Disallowance under Section 43BIn the appeal for AY 2013-14, the disallowance under Section 43B was challenged by the assessee. The contention was that the service tax paid to the service provider was not payable by the assessee to the government but by the service provider. The Tribunal held that Section 43B did not apply to this payment as the service tax was part of the cost of services availed by the assessee, and the disallowance made under Section 43B was deleted.Issue 2: Ad-hoc Disallowance of ExpensesThe AO had made ad-hoc disallowances of expenses claimed by the assessee for personal purposes as the bills and vouchers were not produced. The Tribunal upheld the decision as no supporting documents were provided by the assessee, leading to the dismissal of the grounds challenging the ad-hoc disallowances.Issue 3: Claim for Deduction of Educational CessThe assessee raised additional grounds regarding the deduction of educational cess paid. Following relevant case laws, including a judgment of the Hon’ble Bombay High Court, the Tribunal allowed the claim for deduction of education cess and higher education cess, stating that it is allowable as a deduction.Issue 4: Addition of Notional InterestIn the appeal for AY 2014-15, the addition of notional interest was challenged by the assessee. The Tribunal, following the decision of the Hon’ble Gauhati High Court, held that notional interest cannot be brought to tax and allowed this ground of the assessee.In conclusion, both appeals filed by the assessee were allowed in part, with decisions made on various grounds including disallowances, deductions, and notional interest. The Tribunal provided detailed reasoning for each issue, citing relevant case laws and legal principles to support its decisions.