2025 (10) TMI 997 - AT - Income Tax

Tax deduction allowed for security service charges despite no turnover; legal fees limited to 50% for lack of business purpose

ITAT, Delhi upheld allowance of security service charges after finding tax invoices from a third-party security provider showing services at the sister ... Disallowance of expenditures claimed by the assessee relating to security service charges and professional charges paid - AO observed from the financial statements submitted by the assessee that there was no business during the year, however assessee has claimed abovesaid expenditure AND AO observed that there was no rent paid by the assessee, why the amount claimed on expenses of security service charges be allowed. Further assessee has not explained requirement to make such professional charges. HELD THAT:- As observe that in the previous assessment year, assessee has declared revenue from operation and also declared similar expenditures. During the year, it is brought to our notice that since there was no revenue generated this year and considering the financial difficulties, the assessee has moved its office to its sister concern and operated from there. It is also fact on record that no doubt there was no business carried on by the assessee during the year, however assessee has continued to maintain the establishment and not closed the business. Since there was no revenue declared by the assessee, it does not mean that there would not be any establishment expenditure. The main expenditure incurred by the assessee which is disputed before us is security charges. In support of the same, the assessee has filed tax invoices of G4S Secure Solutions (India) Private Limited for the year under consideration declaring the services at address SNF Realty Consultants Pvt. Ltd., Gate No.1 Mezzanine Floor, Central Wing, Thapar House, Janpath, New Delhi. Since tax invoice was issued by third party for the services provided by them at the address of the sister concern where the assessee has claimed to have continued the business, therefore, we are inclined to allow the same. Professional charges paid to Rajesh Narain Gupta for an amount for providing legal opinion and drafting of various legal documents, after due consideration - We observe that the assessee has filed invoice from Rajesh Narain Gupta. Before us, assessee has submitted copy of legal opinion from pages 70 to 189 and also ledger account of making payment of Rs. 10 lakhs after TDS. After considering the details submitted before us, we observe that no doubt the assessee has no business during the year however taken legal opinion on various issues from Rajesh. It is not clear for what purposes these legal opinion were obtained from him. There seems to be certain legal opinion obtained on trade finance in import and export. It is not clear what way this opinion is relevant for the business of the assessee and the main business of the assessee is providing consultancy services. We are not sure for what purposes the above legal services are obtained by the assessee during the year. Considering the overall facts on record, since the assessee failed to submit the reasonable grounds for taking legal opinion and payment of such huge fees without there being any consultancy income to the assessee itself, therefore, we are inclined to allow 50% of the expenditure claimed by the assessee. Accordingly, this ground is partly allowed. ISSUES PRESENTED AND CONSIDERED 1. Whether expenditure claimed under section 37(1) of the Income-tax Act can be disallowed solely because the assessee had no business receipts in the year under consideration. 2. Whether security charges paid to a third-party security agency are allowable as business expenditure under section 37(1) where the assessee operated from part of a sister concern's premises and did not pay rent or utility charges. 3. Whether legal/professional fees of Rs.10,00,000 paid for obtaining legal opinion and drafting documents are allowable under section 37(1) where the assessee declared no operating revenue and did not adequately explain the business purpose of the opinion. 4. Whether the Assessing Officer's and CIT(A)'s reliance on absence of specific contemporaneous evidence (utility bills, tenancy/contract documents, mode of communication) justified complete disallowance of the above expenditures. ISSUE-WISE DETAILED ANALYSIS Issue 1 - Allowability of expenditure under section 37(1) despite absence of business receipts Legal framework: Section 37(1) allows any expenditure (not covered by sections 30-36) that is not capital or personal and is laid out wholly and exclusively for the purposes of the business. Precedent treatment: The Tribunal relied on the principle (as cited from authority) that absence of business receipts does not ipso facto mean business has ceased; a concern may be dormant yet still be a going concern if it maintains establishment and incurs expenses in expectation of future business. Interpretation and reasoning: The Tribunal accepted that business operations encompass more than revenue receipts and that maintenance of establishment and statutory compliance can demonstrate continuance of business. The AO's focus on lack of receipts was insufficient without findings that the expenses were capital, personal, not genuine, or not wholly and exclusively for business. Ratio vs. Obiter: Ratio - disallowance solely because of absence of receipts is not justified; expenses may be allowable if genuineness, business character and exclusive purpose are established. Obiter - observations on prudence and business revamp context (e.g., evolving trade-finance activities) provide factual background but are not legal holding. Conclusions: The Tribunal endorsed that absence of revenue is not a conclusive ground for disallowance under section 37(1); each expense must be tested for genuineness, character (capital/personal), and nexus to business. This conclusion underpinned the Tribunal's approach to the specific expense heads. Issue 2 - Security charges claimed while operating from sister concern's premises Legal framework: Expenditure for safeguarding business assets and premises is allowable if incurred wholly and exclusively for business and not capital or personal in nature. Precedent treatment: Prior years' consistent allowance of similar security charges by authorities and acceptance in earlier assessments supported the assessee's position that the expense was recurring and bona fide. Interpretation and reasoning: The Tribunal examined evidence: tax invoices from the third-party security agency identified the assessee's address (Mezzanine Floor, Thapar House), ledger entries and continuity of the security arrangement since 2012. Although the assessee did not pay rent or utilities (having been accommodated by a sister concern), the Tribunal found that continued maintenance of establishment and invoiced third-party services at the relevant address constituted sufficient nexus to business. The AO/CIT(A)'s reasoning that lack of rent/utility payments negated business activity was rejected as insufficient to disprove genuineness or business nexus. Ratio vs. Obiter: Ratio - security charges evidenced by third-party invoices and recurring acceptance in prior years are allowable where they relate to premises used for business even if the assessee did not directly bear rent/utilities. Obiter - commentary on why a company may pay for security at premises it does not own (e.g., safeguard assets, act as communication bridge) supports factual findings but is not a broad legal rule. Conclusions: The Tribunal allowed the security charges in full, holding that the invoices and continuity of service demonstrated the expenditure was genuine, incurred for business purposes and thus allowable under section 37(1). Issue 3 - Legal/professional fees of Rs.10,00,000 for legal opinion and drafting Legal framework: Professional/legal fees are deductible under section 37(1) if they are bona fide, not capital in nature, and incurred wholly and exclusively for business purposes; the assessee bears the onus to demonstrate nexus and purpose. Precedent treatment: The Tribunal recognised settled law that obtaining legal advice for reorganization, licensing or business revival can be a business expense, but emphasised requirement of explanation and documentary nexus between the advice and the business activity. Interpretation and reasoning: The assessee produced an invoice and a copy of a legal opinion and asserted that advice related to trade-finance licensing/structure (NBFC/FDI) and proposals to prospective clients. The AO/CIT(A) doubted the relevance and purpose of the opinion given absence of operating revenue and lack of detailed contemporaneous explanation; AO also presumed (without confronting the assessee on that point) that fees could be for litigation. The Tribunal reviewed submitted documents (legal opinion pages, ledger entries) and found that while some supporting material existed, the assessee failed to demonstrate clearly the specific business purpose and reasonable grounds for such a large fee in a year with no consultancy revenue. Balancing the evidentiary gap against the fact that documents were filed and that the expenditure was not shown to be capital or personal, the Tribunal applied a proportional approach. Ratio vs. Obiter: Ratio - when a substantial professional fee lacks adequate explanation of business nexus in a year with no revenue, a partial allowance (here 50%) is an appropriate exercise of assessing authority's discretion; full disallowance is not warranted where invoices and legal opinion are on record but nexus is not fully established. Obiter - observations on the insufficiency of AO's presumption of litigation without specific queries are supplementary to the holding. Conclusions: The Tribunal allowed 50% of the legal fees (i.e., partial relief), concluding that some business purpose was evidenced but the assessee failed to justify the full amount as wholly and exclusively for business in the circumstances of the year. Issue 4 - Adequacy of AO/CIT(A) fact-finding and remand compliance Legal framework: AO must make findings based on material and may seek clarification; appellate authorities may confirm or modify findings based on record and remand directions. Precedent treatment: The Tribunal noted prior remand to AO to verify expenditures; it evaluated whether AO and CIT(A) had given adequate opportunity and made reasoned findings. Interpretation and reasoning: The Tribunal found that some AO conclusions lacked direct confrontation (e.g., presumption of litigation without specific query) but also acknowledged that the assessee, on remand, furnished invoices, legal opinion and ledger entries. Where evidence was convincing (security bills from third party), the Tribunal accepted it; where nexus remained unclear (legal fees), the Tribunal moderated relief rather than fully overturning lower authorities. The Tribunal thereby balanced procedural fairness and evidentiary standards. Ratio vs. Obiter: Ratio - appellate intervention requires assessment of evidence supplied on remand; absence of specific AO queries weakens presumptions but does not automatically establish nexus absent adequate explanation from assessee. Obiter - remarks on procedural conduct and expectations of AO/CIT(A) are ancillary. Conclusions: The Tribunal applied remand material pragmatically: it permitted full allowance where third-party documentation established nexus and partial allowance where the assessee produced documents but failed to satisfactorily explain the business necessity for the full quantum claimed.