2012 (4) TMI 846 - AT - Income Tax

ITAT upholds most expense disallowances but grants statistical relief for bad debts and Modvat credit recomputation

M/s. The Phoenix Mills Ltd. Versus Dy. /Asstt. Commissioner of Income-tax, Circle-7 (1), Mumbai And (Vice-Versa)

The ITAT Mumbai dismissed most grounds of appeal from both assessee and Revenue. Key disallowances were upheld including foreign travel expenses for ... Disallowance on account of foreign travel expenses - bad debts written off - business loss/expenditure - expenses incurred to increase the share capital in the form of stamp duty and ROC filing fees - Modvat credit included in the closing stock in view of the provisions of section 145A - interest expenses - legal and professional charges - brokerage and commission expenses - indirect expenses on the basis of apportionment between business income and income from house property - municipal taxes from annual letting value on the basis of additional evidence in violation of Rule 46A - claim for capitalization of interest expenses - validity of assessment made by the AO u/s 143(3) read with section 147 - Gratuity Expenses Related to Closed Business Units. Foreign travel expenses - HELD THAT:- As noted by CIT, the said expenses were incurred on the foreign trips undertaken by Ms. Rakhi Ruia also who was neither an employee nor the Director of the assessee company. She was a daughter of a Director of the assessee company. The said expenses were claimed to be incurred in connection with starting of the school business which was not the existing line of business of the assessee company. Furthermore, the said new line of business had not even commenced by the assessee and the expenses incurred on travelling thus was before the commencement of the said business which, as rightly held by the learned CIT(Appeals), could not be allowed as revenue expenditure. The decision of Hon’ble Bombay High Court in the case of Antifriction Bearings Corporation Ltd. v. CIT [1977 (11) TMI 37 - BOMBAY HIGH COURT] cited by the learned counsel for the assessee is not applicable in the case of the assessee being distinguishable on facts. No justifiable reason to interfere with the impugned order of the learned CIT(Appeals) on this issue and upholding the same, we dismiss ground of the Revenue’s appeal. Bad debts written off - alternative claim for business loss/expenditure - HELD THAT:- As rightly submitted by assessee, this aspect of the matter needs verification to ascertain the exact nature of advances given whether capital or revenue and if they are found to be of revenue nature given for the purpose of business, the claim of the assessee for deduction on this issue being business loss can be considered by the AO on merits. We, therefore, set aside the impugned order of the learned CIT(Appeals) on this issue and restore the matter to the file of the AO for the limited purpose of considering the alternative claim of the assessee for deduction of bad debts written off being business loss on merits. Expenses incurred to increase the share capital - HELD THAT:- Respectfully following the decision of Hon’ble Apex Court in the case of Brook Bond India Ltd., [1997 (2) TMI 11 - SUPREME COURT] we uphold the impugned order of the learned CIT(Appeals) confirming the disallowance made by the AO on this issue and dismiss ground of the assessee’s appeal. Modvat credit - HELD THAT:- Respectfully following the decision of the Hon’ble jurisdictional High Court in CIT vs. Mahalaxmi Glass Works Pvt. [2009 (4) TMI 182 - BOMBAY HIGH COURT], we restore this issue to the file of the AO with a direction to recompute the addition, if any, to be made to the total income of the assessee u/s 145A after making adjustment to the value of closing stock as well as opening stock. Ground of the assessee’s appeal is treated as allowed for statistical purposes. Interest expenses - HELD THAT:- Neither the learned DR nor the assessee has been able to controvert or rebut any finding given by the learned CIT(Appeals) on the utilization of borrowed funds on verification of the relevant details filed by the assessee. The only contention raised by assessee on this issue is that the amount of interest expenses disallowed by the learned CIT(Appeals) to the extent of Rs. 50,50,445/- being attributable to the borrowed funds utilized for work in progress in respect of the properties which had not been let out may be considered in the subsequent years as per the first Explanation to section 24 and the AO may be directed accordingly. The AO is accordingly directed to consider this alternative claim of the assessee in the subsequent years in accordance with the relevant provision of Explanation to section 24 after verifying the relevant facts. Subject to this, the impugned order of the learned CIT(Appeals) on the issue of disallowance of interest is accordingly upheld. Legal and professional charges - HELD THAT:- As already noted, the facts involved in the year under consideration, however, are different and there being nothing brought on record to show that the legal and professional charges paid by the assessee in the year under consideration to the extent of Rs. 9,21,120/- were the expenditure incurred for the purpose of assessee’s business, we find no justifiable reason to interfere with the order of the learned CIT(Appeals) confirming the disallowance made by the AO on this issue. The same is, therefore, upheld dismissing ground No. 9 of the assessee’s appeal. Brokerage and commission expenses - HELD THAT:- Considering all the facts of the case, we are of the view that the learned CIT(Appeals) has passed a well-reasoned and well discussed order on this issue while sustaining the disallowance of Rs. 24,21,789/- made by the AO out of brokerage and commission expenses to the extent of Rs. 4,52,000/- and we find no justifiable reason to interfere with the same. His impugned order on this issue is, therefore, upheld dismissing ground No. 10 of the assessee’s appeal and ground No. 4 of the Revenue’s appeal. Indirect expenses - HELD THAT:- As rightly held by the learned CIT(Appeals), the AO was not correct in excluding the service charges for this purpose especially when some of the expenses considered by the AO for apportionment were such that they had direct nexus with the service charges received. Moreover, the activity resulting in receipt of service charges was very much part of a composite activity/business of the assessee in relation to with common expenses were incurred by the assessee. As such, we are of the view that the apportionment of common expenses between income from business and income from house property as made by the learned CIT(Appeals) was quite fair and reasonable and we find no justifiable reason to interfere with his impugned order on this issue sustaining the disallowance of Rs. 34,07,853/- made out of common indirect expenses. Municipal taxes - HELD THAT:- In the present case, all the municipal taxes having been borne by the tenants and not by the assessee as an owner, we are of the view that the learned CIT(Appeals) was fully justified in directing the AO not to reduce the amount of municipal taxes from annual letting value for the purpose of computing income of the assessee from house property. The impugned order of the learned CIT(Appeals) on this issue is, therefore, upheld dismissing ground No. 2 of the Revenue’s appeal. Capitalization of interest expenses - HELD THAT:- At the time of hearing before us, the learned DR has not been able to controvert or rebut this finding recorded by the learned CIT(Appeals) on verification of the relevant details/working. CIT(Appeals) has also relied on the decision of his predecessor rendered on a similar issue in assessee’s own case for assessment year 2001-02 which has already been upheld by us in the foregoing portion of this order. We, therefore, find no justifiable reason to interfere with the impugned order of the learned CIT(Appeals) deleting the disallowance. Validity of assessment made by the AO u/s 143(3) read with section 147 - assessee had claimed certain expenses in the year under consideration which was not allowable as deduction - HELD THAT:- As rightly held by the learned CIT(Appeals), the return originally filed by the assessee for the year under consideration having been accepted u/s 143(1), there was no occasion for the AO to express any opinion and it, therefore, cannot be said that it was a case of reopening of assessment based on a mere change of opinion. Moreover, in the assessments completed for the subsequent years, certain expenses claimed by the assessee were found to be not allowable as deduction while computing the income of the assessee. Since similar expenses were claimed by the assessee in the year under consideration and the same were allowed while processing the return of the assessee u/s 143(1), it was a prima facie case of allowing excess claim of the assessee for deduction of the said expenses which resulted in escapement of assessee’s income. As rightly held by the learned CIT(Appeals), it was thus a fit case to reopen the assessment to bring to tax such escaped income and the reopening by the AO was in accordance with law. Disallowance of Gratuity expenses - 1/5th of the total gratuity payment was disallowed - claim of the assessee, however, was not entertained by the AO for the reason that it was disallowed in the original assessment and the same could not be considered in the reassessment proceedings -HELD THAT:- It was only during the course of reassessment proceedings that the assessee made an attempt to raise this issue by challenging the disallowance made in the original assessment on account of gratuity expenditure which was not entertained by the authorities below and in our opinion, quite rightly so. It is well settled that the reassessment proceedings u/s 147/148 are for the benefit of Revenue and it is not permissible for the assessee to raise in the said proceedings the issues which have been decided against him in the original assessment and which have become final. We, therefore, find no infirmity in the impugned order of the learned CIT(Appeals) rejecting the claim of the assessee for deduction on account of gratuity expenditure and upholding the same on this issue, we dismiss ground No. 6 of the assessee’s appeal. Issues presented and considered in these cross appeals primarily relate to the following core legal questions:1. Whether foreign travel expenses claimed by the assessee are wholly and exclusively incurred for business purposes and thus deductible, particularly where some expenses relate to proposed new business activities not yet commenced.2. The allowability of bad debts written off, including whether such debts qualify for deduction under the Income-tax Act provisions or alternatively as business loss/expenditure.3. Deductibility of expenses incurred under section 35D for increase in share capital, specifically expenses such as stamp duty and Registrar of Companies (ROC) filing fees.4. Treatment of Modvat credit adjustments in valuation of closing stock under section 145A and corresponding impact on income computation.5. Apportionment and disallowance of interest expenses claimed under different heads of income, especially where borrowed funds are used partly for business and partly for work-in-progress properties not yet let out.6. Deductibility of legal and professional charges, particularly when incurred in relation to rental properties or properties under development.7. Allowability of brokerage and commission expenses, including payments for feasibility studies and brokerage on purchase of raw materials.8. Apportionment and disallowance of indirect/common expenses between business income and income from house property, and the legal permissibility of such apportionment.9. Validity of reopening assessments under section 147 where alleged escapement of income arises from excessive claims of deduction.10. Deductibility of gratuity expenses related to closed business units during reassessment proceedings.11. Treatment of municipal taxes in computation of annual letting value of properties under section 23, particularly where taxes are borne by tenants.Issue-wise Detailed Analysis1. Foreign Travel ExpensesThe legal framework involves the principle that expenses claimed must be incurred wholly and exclusively for business purposes to be deductible. The assessee, engaged in textile manufacturing, trading, leasing, and warehousing, claimed foreign travel expenses including trips for exploring foreign collaborations, studying retail mall culture, and proposed new business in education.The AO disallowed the entire foreign travel expenses on the ground that the assessee failed to demonstrate business purpose, especially noting no import/export activity and the main income source being lease rentals. The CIT(A) after detailed examination of the purpose of each trip, allowed a substantial portion of the expenses as business-related, but disallowed Rs. 15,16,299/- relating to trips for proposed school business and travel by a person not an employee or director.The Court upheld the CIT(A)'s order, emphasizing established law that expenses incurred before commencement of a new business are capital in nature and not deductible as revenue expenditure, citing precedents such as EID Parry (India) Ltd. and Swadeshi Cotton Mills Co. Ltd. The Court rejected the assessee's reliance on a decision allowing expenses for new business activities under the same management, distinguishing facts. It was also held that expenses incurred on medical treatment of directors and their relatives are perquisites under section 2(24)(iv) and allowable as business expenditure in the hands of the company but taxable in the hands of the directors.2. Bad Debts Written OffSection 36(1)(vii) and 36(2) govern deduction for bad debts. The AO disallowed the claim as the debts written off were advances not previously taken into income and were of capital nature. The CIT(A) confirmed this and disallowed the alternative claim for business loss deduction.The Court noted the assessee's concession that statutory conditions were not met but remanded the matter to AO to verify the nature of advances (capital or revenue) and consider the alternative claim on merits. Thus, the statutory claim was dismissed but the alternative was left open for consideration.3. Deduction under Section 35D for Share Capital Increase ExpensesExpenses such as stamp duty and ROC fees incurred for increase in share capital were disallowed by AO and CIT(A), relying on Supreme Court precedent in Brook Bond India Ltd. The Court upheld this disallowance, confirming that such expenses are capital in nature and not deductible.4. Modvat Credit Adjustments under Section 145AThe issue involved whether adjustments for Modvat credit in closing stock valuation should be matched by similar adjustments in opening stock to compute income correctly. The CIT(A) confirmed disallowance but did not direct adjustment to opening stock.The Court, following Bombay High Court ruling in CIT vs. Mahalaxmi Glass Works Pvt. Ltd., held that for proper income computation under section 145A, Modvat adjustments must be made to both opening and closing stock. The matter was remanded to AO for recomputation accordingly.5. Interest Expenses Disallowance and CapitalizationThe assessee claimed interest deduction under 'Income from house property' and 'Profits & gains of business or profession'. AO disallowed part of interest expenses on ad hoc basis, considering funds used for work-in-progress properties not let out as capital expenditure.CIT(A) verified utilization details, allowing interest attributable to business and repairs but disallowing interest linked to work-in-progress. The Court upheld this approach, directing AO to consider alternative claims for subsequent years under Explanation to section 24.Regarding capitalization, the AO disallowed interest claimed as revenue but attributable to buildings under construction. CIT(A) accepted the assessee's bifurcation based on actual utilization and allowed the claim. The Court upheld this, finding no justification for AO's disallowance.6. Legal and Professional ChargesAO disallowed charges related to rental properties or properties under development, reasoning expenses were not for business but related to income from house property, where such deductions are restricted under section 24.CIT(A) confirmed disallowance, treating expenses as capital or related to property protection. The Court upheld this, distinguishing from prior years where facts differed and expenses were allowed. It was held that expenses incurred to protect immovable properties given on rent or under development are not deductible as business expenses.7. Brokerage and Commission ExpensesThe assessee claimed brokerage and commission expenses including a Rs. 10 lakh payment for feasibility study related to retail business expansion and brokerage on yarn purchases.AO disallowed substantial portion, treating some as capital expenditure or relating to exempt income. CIT(A) allowed Rs. 19,89,789/- as revenue expenditure, including the feasibility study and brokerage on yarn purchase, relying on precedents that feasibility studies for business expansion are allowable. The Court upheld CIT(A)'s order, sustaining disallowance only to the extent of Rs. 4,52,000/-.8. Apportionment of Indirect/Common ExpensesThe AO disallowed part of indirect expenses on the basis of apportionment between business income and income from house property, excluding service charges from total income in the ratio calculation. CIT(A) re-examined the expenses, included service charges, and apportioned expenses at 34% to rental income, sustaining disallowance to that extent.The assessee contended no legal provision permits such apportionment and relied on Supreme Court decisions prohibiting allocation between taxable and exempt income. The Revenue argued apportionment is necessary for computing income under different heads.The Court rejected the assessee's contention, distinguishing the cited Supreme Court decisions as relating to allocation between taxable and exempt income, whereas the present case involves apportionment between different taxable heads. The Court referred to Calcutta High Court decision in Mukti Properties P. Ltd., which upheld apportionment of expenses between business and house property income. It held that apportionment is embedded in the computation provisions and necessary for correct income determination. The Court upheld CIT(A)'s apportionment methodology as fair and reasonable.9. Validity of Reopening Assessments under Section 147The assessee challenged reopening on grounds of mere change of opinion. CIT(A) upheld reopening, relying on Explanation 2 to section 147, noting that subsequent assessments revealed disallowable expenses claimed in earlier years, indicating escapement of income.The Court agreed that reopening was justified where the original return was processed under section 143(1) without detailed scrutiny and subsequent years' assessments revealed excess claims, constituting escapement. Thus, reopening was lawful.10. Gratuity Expenses Related to Closed Business UnitsThe assessee claimed gratuity expenses for closed units during reassessment. AO and CIT(A) disallowed, noting the issue was decided in original assessment with no appeal filed, and reassessment proceedings cannot reopen settled issues.The Court upheld this, emphasizing reassessment is for Revenue's benefit and not to reconsider concluded matters.11. Municipal Taxes Deduction under Section 23AO deducted municipal taxes from rent to compute annual letting value. CIT(A) reversed this, finding tenants bore municipal taxes per lease agreements, so deduction was impermissible under proviso to section 23.The Court upheld CIT(A)'s order, holding that municipal taxes borne by tenants cannot be deducted from rent to compute annual value. This was consistently applied across assessment years.Significant Holdings'The ambit of section 2(24)(iv) in this respect is very wide. Reimbursement of medical expenses are held by the courts to be a benefit to a Director... The value of the benefit derived by Sri Ashok Ruia, the Managing Director and by Mrs. Gayatri Ruia being relative of a Director... is income in the hand of the said Directors.''Any expenses incurred before commencement of a new line of business cannot be allowed as a revenue expenditure. It is an established law that any outlay or an expenditure incurred connected with new business before commencement of the business would be of capital nature.''When the income of the assessee is of a composite nature and it is received from different heads of income as recognized by the Act, the common expenses incurred by the assessee have to be apportioned head-wise in order to compute the income arising under the concerned heads... Such computation cannot be done unless the common expenses incurred by the assessee are apportioned head-wise.''The reopening by the AO was in accordance with law where the original return was accepted u/s 143(1) and subsequent assessments revealed excess claims resulting in escapement of income.''Expenses incurred to protect immovable properties given on rent or under development are capital in nature and not deductible as business expenses.''Feasibility study expenses for the purpose of expanding existing business are allowable as revenue expenditure.''Municipal taxes borne by tenants cannot be deducted from rent for computing annual letting value under section 23.'Final determinations include:Foreign travel expenses partly allowed where connected to existing business, disallowed where related to uncommenced new business or non-employees.Bad debts deduction denied under section 36(1)(vii) but alternative claim remanded for verification.Section 35D expenses for increase in share capital disallowed as capital expenditure.Modvat credit adjustments require matching adjustments in opening and closing stock for income computation.Interest expenses allowed in part based on fund utilization; capitalization of interest upheld where justified.Legal and professional charges related to rental properties disallowed.Brokerage and commission expenses allowed to extent incurred for existing business expansion and purchase of raw materials.Apportionment of common expenses between heads of income upheld as necessary and lawful.Reopening of assessments under section 147 upheld where escapement of income prima facie established.Gratuity expenses related to closed units disallowed in reassessment.Municipal taxes borne by tenants not deductible from rent for annual value computation.