TaxTMI 
TaxTMI 
2015 (10) TMI 2555
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.... fees. 2. The ld. CIT(A) has erred on facts and in law in confirming the disallowance of Rs. 36,90,200/- made by the AO in computing the book profit u/s 115JB by holding that no evidence has been placed on record by the assessee to counter the finding of AO. 2.1 Brief facts of Ground No. 1 of the assessee are that during the year the assessee company had paid Professional Fee of Rs. 94.19 lacs to M/s. Dhir & Dhir Associates, a partnership firm who partners are having substantial interest in the business of the assessee company. In the preceding assessment year 2007-08, a disallowance of Rs. 11.00 lacs was made on total expenses of Rs. 104.66 lacs paid as professional fee to M/s. Dhir & Dhir Associates. As facts of the case remained sa....
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....ciates. The said matter had since reached the ITAT and Coordinate Bench has decided the issue in favour of the assessee vide its order dated 25-05-2012 by observing as under:- ''10. We observe that the case of Revenue is de hors the facts which are required for the application of the provision of section 40(A)(2)(a) of the Act. Rather, it would appear to us that the Revenue, on whom the onus lies in this regard, has even not show caused the assessee in the matter. Merits apart, the onus u/s 40(A)(2) being directly on the Revenue, we find that the same has not been discharged by it in any manner. For, a satisfaction of the ingredients of the section would require an analysis of the services provided, and (further) categorizing them into v....
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.... 115JB(2)(c) of the Act. Consequently, returned book profit of Rs. 2,13,82,826/- had been increased by Rs. 36,90,200/-. 3.2 The ld. CIT(A) had confirmed the addition of Rs. 36,90,200/- to book profits made by the AO by observing at para 5.2 and 5.3 of his order as under:- ''5.2 The A.R. of the appellant has contended as under:- The amount of Rs. 36,90,200/- was shown below the line after working out the net profit as per profit and loss account as it was an exceptional item. The details of the same are as under:- Management Fee to RIICO for settlement of Loan under BIFR Scheme Rs. 8.29 lacs Management Fee to UTI for settlement of Loan under BIFR Scheme Rs. 26.83 lacs Reinstatement of amount w/back in last year Rs.....
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....he AO, the amount of Rs. 36.92 lacs has been shown below the line and secondly, it is not an ascertained liability. As per ld. AR, it is an ascertained liability as it represents actual payment of management fees to RIICO in order to arrive at the settlement of secured loan as per scheme of BIFR . The said contention of ld. AR has neither been controverted by the lower authorities nor by ld. DR. It is thus clearly a case of actual payment of management fees and the same cannot be held to be a provision towards an unascertained liability u/s 115JB(2) (c ) of the Act. 3.6 As regards the other observation of the AO that the said amount has been shown below the line, in our view, whether the amount is shown above the line or below the line, ....