Income Tax Appellate Tribunal - Mumbai
Acit - 18(2), Mumbai vs Kothari Fabrics, Mumbai on 1 January, 2019
IN THE INCOME TAX APPELLATE TRIBUNAL "H"
BENCH, MUMBAI
BEFORE HON'BLE SH. SANDEEP GOSAIN, JM &
HON'BLE SH. N. K. PRADAHN, AM
आयकरअपीलसं./ I.T.A. No. 2570/Mum/2016
(निर्धारणवर्ा / Assessment Year: 2012-13)
ACIT-18(2) Kothari Fabrics,
302, 3rd floor, Earnest बिधम/ 50/52, Kothari Chambers,
House, NCPA Marg, Vs. Ramwadi, Kalbadevi,
Mumbai-400021 Mumbai-400002
स्थायीलेखासं ./ जीआइआरसं ./ PAN No. AAAFK3226A
(अपीलाथी/Appellant) : (प्रत्यथी / Respondent)
अपीलाथीकीओरसे/ Appellant by : Shri Manoj Kumar
Singh, DR
प्रत्यथीकीओरसे/Respondentby : Shri Parag K. Shah, AR
सुनवाईकीतारीख/ : 28.12.2018
Date of Hearing
घोषणाकीतारीख /
: 01.01.2019
Date of Pronouncement
आदे श / O R D E R
Per Sandeep Gosain, Judicial Member:
The present Appeal filed by the revenue is against the order of Ld. CIT (Appeal) - 29, Mumbai dated 21.01.16 for AY 2012-13 on the grounds mentioned herein below:- 2
I.T.A. No. 2570/Mum/2016 M/s Kothari Fabrics
1. a) On the facts and in circumstances of the case, the CIT(A) has erred in law as well as on facts by not sustaining addition u/s 40A(2) of the Income Tax Act, 1961, amounting to Rs.45,46,440/- Being rebate given to it's sister concern, which is nothing but expense only, as sell proceeds get reduced to tax extent.
b) On the facts and in circumstances of the case, the CIT(A) has erred in law as well as on facts is also not considering that the assessee firm has not received any rebate from the firm to whom processing charges have been paid for the same kind of job work done by the assessee and has been unable to provide any acceptable circumstances under which such rebate was given.
2. a) On the facts and in circumstances of the case, the CIT(A) has erred in the law as well as on fact in deleting the addition of Rs.33,64,452/- being expenses on account of inward transportation.
b) On the facts and in circumstances of the case, the CIT(A) has failed to appreciate that the process factory of the both the assessee and its sister concerns is located at Pali and appear to be in adjacent plots/compound. It is further observed that the LR does not show the delivery address as Bhiwandi and also the 3 I.T.A. No. 2570/Mum/2016 M/s Kothari Fabrics expenses which should have been incurred by the processing house, i.e. outsourcing party has been incurred by the assessee with a clear motive to reduce the profit of the firm since all are sister concern and share the same office and adjoining factory premises, and thus, the CIT(A) has failed to discuss the finding of the A.O. in para 4.2 of the assessment order.
3. a) On the facts and in circumstances of the case, the CIT(A) has erred in the law as well as on fact by not sustaining addition of Rs.7,54,8765/- being expenses on account of packing material claim on the higher side without any proper proof.
b) On the facts and in circumstances of the case, the CIT(A) has failed to appreciate that even though the cost of packing material was higher during the relevant year, the total sales were less in comparison to the previous year. The CIT(A) has thus, not given any valid reason for restricting the disallowance to 5% only of the cost of packing material.
4. For the above mentioned reason and any other reason that may be urged at the time of hearing, it is requested that the order of the CIT(A) be quashed and that of the A.O. be restored.
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5. The appellant craves leave to amend or alter the ground or add a new ground, which may be necessary.
2. The brief facts of the case are that the return of income for the year under consideration was filed on 07.08.12 declaring total income of Rs 2,56,06,901. Subsequently the case was selected for scrutiny and after serving statutory notices, seeking reply and after providing opportunity of hearing, order of assessment u/s 143(3) of the I.T. Act was passed by the AO thereby making addition/disallowance under different heads.
Aggrieved by the order of AO, assessee preferred appeal before Ld. CIT(A) and Ld. CIT(A) after considering the case of both the parties, partly allowed the appeal of the assessee.
Now before us, the revenue has preferred the present appeal by raising the above grounds.
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I.T.A. No. 2570/Mum/2016 M/s Kothari Fabrics Ground No. 1(a & b)
3. This ground raised by the revenue relates to challenging the order of Ld. CIT(A) in not sustaining addition u/s 40(A) of the I.T. Act and also not considering that the assessee firm has not received any rebate from the firm to whom processing charges have been paid for the same kind of job work done by the assessee and has been unable to provide any acceptable circumstances under which such rebate was given.
4. We have heard the counsels for both the parties and we have also perused the material placed on record, judgment cited by the parties as well as the orders passed by revenue authorities.
Before we decide the merits of the case, it is necessary to evaluate the orders passed by Ld. CIT(A). The Ld. CIT(A) has dealt with the above grounds raised by the assessee in para no. 4 of its order. The operative portion is contained in para no. 4.3.1 & 4.3.2 of its order and the same is reproduced below:-
4.3.1. The section is clear that the disallowance has to be made out of the expenditure incurred by the assessee, if the AO is of the opinion that such 6 I.T.A. No. 2570/Mum/2016 M/s Kothari Fabrics expenditure is excessive or unreasonable having regard to the fair market value of the goods, services or facilities for which the payment is made. In this case, the appellant has not incurred any expenditure.
Expenditure has been incurred by Kothari Fabtex P. Ltd. The appellant has only allowed a discount from its receipts. This view has been confirmed by the 3urisdictional Mumbai IT AT in the case of DCIT vs. Orgo Chem Guj Pvt. Ltd. (Supra). The Hon'ble ITAT held that in case of discount on sale, no payment is to be made by the assessee, since it only reduces the sale price. Hence in case of sale discount, the provision of section 40A(2) cannot be applied as held by the Honb'le M.P. High Court in the case of Uddjoji Srikrishnadas ( supra ). The hon'ble high court of Punjab and Haryana in the case of CIT vs Rajnish Ahuja 38 Taxmann.com 401, held that where assessee had charged less sale price from sister concern as compared to non-sister concerns provisions of section 40A could not be invoked as no payment had been made to sister concern for any item of expenditure. In the instant case the appellant has not made any payment nor has received jobwork receipts from other sister concerns so there is no question of comparison. The Hon'ble High Court,of Allahabad in the case of CIT vs Bhargav Book Depot 220 Taxmann 12 held that where assessee while selling books to sister 7 I.T.A. No. 2570/Mum/2016 M/s Kothari Fabrics concern offered more discount than that offered to other customers and did not claim education for amount which has been charged less, then provisions of section 40A(2) could not be applied.
4.3.2 In the instant case the appellant has not incurred any expenditure toward discount going by the ratio of the above judgments the provisions of section 40A(2) are not attracted. The AO has made the disallowance merely for the reasons that the assessed had given the rebate for the first time and it itself had not received any rebate from its other sister concerns. The AO did not say why the rebate allowed is excessive or unreasonable. In the absence of any findings by the AO about the unreasonableness of the rebate, more so in view of the fact that the same cannot be covered u/s 40A(2), the disallowance of Rs. 45,64,440/- cannot be sustained. Moreover, there is no loss to the revenue as both the appellant and its sister concern Kothari Fabtex Pvt. Ltd. are in the same tax slab. This ground of appeal is allowed. After having gone through the facts of the present case, we find that Ld. CIT(A) has rightly concluded that the provisions of section 40A(2)(b) clearly defines that the disallowance has to be made out of the 'expenditure' incurred by the assessee, if the AO 8 I.T.A. No. 2570/Mum/2016 M/s Kothari Fabrics comes to the conclusion that such expenditure is excessive or unreasonable. In this case, the assessee had only allowed a 'discount' from its receipts and had not incurred any expenditure. This view taken by the Ld. CIT(A) had already been confirmed by the Coordinate Bench of ITAT in the case of DCIT Vrs. Orgo Chem Guj Pvt. Ltd. wherein it was categorically held that in the case of discount on sale, no payment is to be made by the assessee. Since it only reduces the sale price.
Apart from that, other courts have also taken consistent view. Even the provisions of section 40A also could not be invoked as in the instant case, the assessee has not made any payment nor has received job work receipts from other sister's concern, so there is no question of comparison. Therefore considering the totality of the fact and the ratio of judgments cited by the parties, Ld. CIT(A) had taken a balanced view.
No new facts or contrary judgments have been brought on record in order to controvert or rebut the findings so recorded by Ld. CIT(A). Therefore, there are no reasons for us to interfere into or deviate from the findings so recorded by the Ld.CIT(A). 9
I.T.A. No. 2570/Mum/2016 M/s Kothari Fabrics Hence, we are of the considered view that the findings so recorded by the Ld. CIT (A) are judicious and are well reasoned. Resultantly, this ground raised by the revenue stands dismissed. Ground No. 2(a & b)
5. This grounds raised by the revenue relates to challenging the order of Ld. CIT(A) in deleting the addition of Rs.33,64,452/- being expenses on account of inward transportation.
6. We have heard the counsels for both the parties and we have also perused the material placed on record, judgment cited by the parties as well as the orders passed by revenue authorities.
Before we decide the merits of the case, it is necessary to evaluate the orders passed by Ld. CIT(A). The Ld. CIT(A) has dealt with the above grounds raised by the assesee in para no.5 of its order. The operative portion is contained in para no. 5.1 of its order and the same is reproduced below:-
5.1. The appellant has during the course of assessment proceedings as well as appellate proceedings submitted: that most of the expenses were paid to 10 I.T.A. No. 2570/Mum/2016 M/s Kothari Fabrics Shaktisali Transport Carrier. Bills raised by the transport company, freight receipts, service tax payment proof, ledger accounts of the party have been submitted by the appellant both at the, assessment and the appellate stage. M/s Shaktisali Transport Carrier has also given a confirmation to this effect. Moreover the appellant has agreed into the agreement with M/s Kothari Fabtex Pvt. Ltd., according to which the appellant is responsible for the inward freight. When goods are lifted from the factory in Pali, the freight has to be paid by the client, The AO in her order mentioned that there is no evidence that the goods are transported from Pali to Bhiwandi. Infact freight is paid for transporting the goods from Bhiwandi to Pali. In view of the evidences furnished by the appellant, there is no case for disallowance of transportation charges. The AO is directed to delete the addition of Rs.33,64,452/-.
After having gone through the facts of the present case, Ld. CIT(A) had after appreciating the facts had rightly concluded that most of the expenses were paid to Shaktisali Transport Carrier. In this respect, Bills raised by the transport company, freight receipts, service tax payment proof, ledger accounts of the party alongwith confirmation have already been considered. The 11 I.T.A. No. 2570/Mum/2016 M/s Kothari Fabrics Ld. CIT(A) had rightly concluded that In fact freight was paid for transporting the goods from Bhiwandi to Pali. Therefore, considering the circumstances, the additions were rightly deleted.
No new facts or contrary judgments have been brought on record in order to controvert or rebut the findings so recorded by Ld. CIT(A). Therefore, there are no reasons for us to interfere into or deviate from the findings so recorded by the Ld.CIT(A). Hence, we are of the considered view that the findings so recorded by the Ld. CIT (A) are judicious and are well reasoned. Resultantly, this ground raised by the revenue stands dismissed. Ground No. 3 (a & b)
7. This grounds raised by the revenue relates to challenging the order of Ld. CIT(A) in not sustaining addition of Rs.7,54,8765/- being expenses on account of packing material claim on the higher side without any proper proof. 12
I.T.A. No. 2570/Mum/2016 M/s Kothari Fabrics
8. We have heard the counsels for both the parties and we have also perused the material placed on record, judgment cited by the parties as well as the orders passed by revenue authorities.
Before we decide the merits of the case, it is necessary to evaluate the orders passed by Ld. CIT(A). The Ld. CIT(A) has dealt with the above grounds raised by the assesee in para no.8 of its order. The operative portion is contained in para no. 8.1 of its order and the same is reproduced below:-
8.1. During the appellate proceedings, the appellant submitted the details of increase in cost of packing materials, which were produced even before the AO.
According to the Ld. counsel of the appellant, during the year, due to increase in crude prices and other raw material for cost of packing material, the cost has increased substantially. The AO made adhoc disallowance of 10% of the expenses on packing material. It is felt that the ends of justice would be met if the disallowance is restricted to 5% of the cost of packing material. The AO is directed to restrict the disallowance to 5% of the cost of packing material. 13
I.T.A. No. 2570/Mum/2016 M/s Kothari Fabrics After having gone through the facts of the present case, Ld. CIT(A) had after appreciating the details of increase in cost of packing materials had rightly concluded that since the AO had made adhoc disallowance of 10% of the expenses on packing material.Therefore considering the interest of justice had rightly restricted the disallowance to 5% of the cost of packing material.
No new facts or contrary judgments have been brought on record in order to controvert or rebut the findings so recorded by Ld. CIT(A). Therefore, there are no reasons for us to interfere into or deviate from the findings so recorded by the Ld.CIT(A). Hence, we are of the considered view that the findings so recorded by the Ld. CIT (A) are judicious and are well reasoned. Resultantly, this ground raised by the revenue stands dismissed. Ground No. 4 & 5.
9. These grounds raised by the revenue are general in nature, thus requires no specific adjudication. 14
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10. In the net result, the appeal filed by the revenue stands dismissed with no order as to cost.
Order pronounced in the open court on 1st Jan, 2019.
(N. K. Pradhan) (Sandeep Gosain) ले खासदस्य / Acountant Member न्याययकसदस्य / Judicial Member मुंबई Mumbai;यदनां कDated : 01.01.2019 Sr.PS. Dhananjay
आदे शकीप्रनिनिनिअग्रे नर्ि/Copy of the Order forwarded to :
1. अपीलाथी/ The Appellant
2. प्रत्यथी/ The Respondent
3. आयकरआयुक्त(अपील) / The CIT(A)
4. आयकरआयुक्त/ CIT- concerned
5. यवभागीयप्रयतयनयध, आयकरअपीलीयअयधकरण, मुंबई/ DR, ITAT, Mumbai
6. गार्ड फाईल / Guard File आदे शधिुसधर/ BY ORDER, उि/सहधयकिंजीकधर .
(Dy./Asstt.Registrar) आयकरअिीिीयअनर्करण, मुंबई/ ITAT, Mumbai