Income Tax Appellate Tribunal - Mumbai
India Fashions Ltd ( Resulting Company ... vs Assessee on 8 August, 2014
`IN THE INCOME TAX APPELLATE TRIBUNAL,
MUMBAI BENCH "I", MUMBAI
BEFORE SHRI D. KARUNAKARA RAO, ACCOUNTANT MEMBER AND
DR. S.T.M. PAVALAN, JUDICIAL MEMBER
ITA No. 5262/Mum/2011
Assessment Year: 2004-05
M/s. India Fashions Ltd. ITO Ward-6(3)(1)
A/2-369, Shah & Nahar Mumbai
Vs.
Industrial Estate, Sun Mills
Compound, Lower Parel
Mumbai-400 013
(Appellant) (Respondent)
Permanent Account No. :- AAACH 1262 Q
Assessee by Shri Vijay Mehta & Mr.
:
Mahesh O. Rajora
Revenue by : Shri Sunil Kumar Jain
Date of hearing : 05.06.2014
Date of Pronouncement : 08.08.2014
ORDER
PER DR. S.T.M. PAVALAN, JM:
This appeal filed by the Assessee is directed against the order of the Ld.CIT(A) -2, Mumbai dated 01.03.2011 for the Assessment Year 2004-05.
2. In Grounds No. 1 and 2, the assessee has agitated the decision of the Ld.CIT(A) enhancing the assessment and thereby making a disallowance of Rs.56,41,676/- being commission paid on export sales.
2.1 Briefly stated, during the year under consideration, the assessee had allegedly paid 25% commission amounting to Rs.56,41,677/- on export sales of Rs.2,25,42,652/-. According to the assessee, the said commission had been paid to M/s. Bombay Industries situated in U.S.A. in respect of export sales of commodities sent to Mexico. The assessee had claimed the payment of the said commission as business expenditure which was allowed by the AO in the assessment framed. However, the Ld.CIT(A), during the first appellate proceeding, had disallowed the expenditure on the reason that there is no written agreement evidencing the ITA No. 5262/Mum/2011 2 M/s. India Fashions Ltd.
Assessment Year: 2004-05 payment of 25% commission to Bombay Industries U.S.A. and the assessee had not deducted any TDS on the said payment. Aggrieved by the impugned decision, the assessee has raised these grounds in the appeal before us.
2.2 Having heard both the sides and perused the material on record it is pertinent to mention that during the first appellate proceeding when the case has been discussed by the Ld.CIT(A) with the A.R. of the assessee, the Ld.CIT(A) noticed that the assessee has paid commission of 25% on export sales to various persons which according to the Ld.CIT(A) is excessive in nature. Accordingly, the Ld.CIT(A) asked the assessee to file the details of commission paid with the names and addresses of parties, relation with the assessee of the persons to whom commission has been paid, a copy of the agreement for the commission, rate of commission paid, nature of service rendered with evidence, copy of bills of commission paid etc. to explain whether there is a loss or profit on the sales of which commission on paid. Consequently, after perusing the details provided by the assessee, the Ld.CIT(A) disallowed the claim in the appellate proceedings on the reasons that there is no agreement for the payment of the commission to M/s. Bombay Agents, U.S.A., there is no evidence to suggests that there is any sale on account of any effort made by M/s. Bombay Industries and also the assessee has not deducted TDS on the payment of the commission.
2.2.1 As regards the absence of agreement between assessee and the Bombay Industries, which is one of the reasons on which the Ld.CIT(A) has rejected the claim of the assessee, it is pertinent to mention that the Tribunal in the case of Harrison Garments Division Vs. JCIT, in ITA No. 3022/Mum/2012, which has been relied on by the Ld.AR, has held that mere existence of an agreement cannot decide the allowability of commission payment, it is the presence of surrounding circumstances and the basic facts that decide the issue in conclusive manner. Similarly non existence of written agreement cannot be sole base for disallowance of commission payment if other evidences prove the fact of incurring for such expenditure wholly and exclusively. For the said decision the Tribunal has relied on the decision of the Delhi High Court in the case of Gautam Creations Pvt. Ltd. 171 taxman 271 Delhi High Court, wherein it has been held that commission paid in the ITA No. 5262/Mum/2011 3 M/s. India Fashions Ltd.
Assessment Year: 2004-05 absence of written agreement can be allowed if work has been done by the agent for the assessee who pays the commission to the agent. Considering the ratio laid down by the Delhi High Court which has been followed by the Tribunal in the said case, we are of the considered opinion that proof/existence of a written agreement between the assessee and the commission agent is not a requirement for allowing the expenditure of the commission payment made by the assessee.
2.2.2 Further, the genuiness of payment by the assessee to Bombay Industries is not in dispute as the confirmation from Bombay Industries for the said payment has been made available before the authorities below and is placed at page no 77 of the paper book. The perusal of the said confirmation further indicates that the payment has been received by the party on Mexican orders. Moreover, the perusal of the P/L account suggests that the export sale during the year under consideration is increased and the loss is reduced. Also, it is seen that the assessee has secured the order for export to Mexico without visiting the Mexico. These facts clearly evidence that the assessee has paid the commission to M/s. Bombay Industries for the effort made by it to secure the export order to Mexico as demonstrated by the Ld.AR for the assessee.
2.2.3 On the issue of non deduction TDS on the said payment, we find that as per the CBDT circular No.23 dated 23.7.1969 and circular No.786 dated 7.2.2000, the assessee is not required to deduct the tax at source under Section 195 with regard to payment of commission to foreign agent. It is also relevant to state that the CBDT, withdrawing the circular No.23 of 1969 and circular No.786 of 2000 will be operative only from 22nd October, 2009 and not prior to that date. Therefore, the reasoning of the Ld.CIT(A) for making the impugned disallowance, in our view, is not sustainable on facts and in law. In view of the aforementioned discussion, we delete the impugned disallowance made by the Ld.CIT(A). Since the disallowance made by the Ld.CIT(A) has been deleted on appreciation of merits in the claim of the assessee, the adjudication of the contention of the Ld.AR that the Ld.CIT(A) has conducted a roving and fishing enquiry in the appellate proceedings, which is not in accordance with the exercise of appellate powers by the Ld.CIT(A), is not required. Accordingly, grounds no 1 & 2 are allowed.
ITA No. 5262/Mum/20114 M/s. India Fashions Ltd.
Assessment Year: 2004-05
3. In Ground No. 3, the assessee has agitated the decision of the Ld.CIT(A) confirming the addition of Rs.84,027/- made by the AO u/s 41(1) of the Income Tax Act.
3.1 The relevant facts are that the AO, in his order observed that the provisions of section 41(1) is applicable in the case of the assessee on an amount of Rs.84,027/- which represented the liabilities that had not been paid for more than three years and therefore was chargeable to tax u/s 41(1) of the Act. According to the assessee, the assessee company was amalgamated with India Fashion House vide High Court order dated 02.02.2007 and that liabilities pertaining to Trisha Adworks of Rs.39,376/-, Ganashakti Enterprises amounting to Rs.12,134/- and Krishna Textport amounting to Rs.29,970/- had been returned back in the books of account on 01.04.2006 that is in the Financial Year 2006-07. For other three creditors, namely, Logys amounting to Rs.1,884/-, Riddhi Button amounting to Rs.240/- and Smart Art amounting to Rs.423/- were settled on 30.09.2006, 31.01.2006 and 31.03.2006 respectively. It was further the submission of the assessee that the addition of Rs.84,027/- u/s 41(1) would amount to double taxation on the same amount as this amount had already been either return back in the books of account or had been settled. However, the said contention was not accepted by the Ld.CIT(A) and thereby the Ld.CIT(A) upheld the disallowance made by the AO. Aggrieved by the impugned decision, the assessee has raised this ground in the appeal before us.
3.2 Having heard both the sides and perused the material on record, it is pertinent to mention that the assessee, during the proceedings before us, has filed statement showing list of sundry creditors return back in M/s. India Fashion Ltd. in A.Y. 2006-07 and break up of assessee's creditor return back in that year. Since the document has never been asked for by the AO or the Ld.CIT(A), the Ld.AR has placed it as additional evidences before us to substantiate the claim of the assessee. Having admitted the said statement as additional evidence, we are of the considered view that it is just and proper to set aside this issue to the file of the AO to make a fresh assessment on the said issue after providing reasonable opportunity of being ITA No. 5262/Mum/2011 5 M/s. India Fashions Ltd.
Assessment Year: 2004-05 heard to the assessee. We direct and order accordingly. Ground No. 3 is allowed for statistical purpose.
4. In Ground No. 4, the assessee has agitated the decision of the Ld.CIT(A) confirming the addition of Rs.1,89,000/- made by the AO on account of free samples given to customers.
4.1 The relevant facts are that the AO observed from schedule "L" to the accounts under Serial No. 2 b that in respect of trading goods, the assessee had 784 pieces as the opening stock which was valued at Rs.128 per piece, further 294 pieces were purchased during the year at Rs.71 per piece and there was closing stock of 236 pieces which was valued by the assessee at Rs.161 per piece. However, 842 pieces of the same item were sold at only Rs. 14 per piece and accordingly the assessee was requested to explain the discrepancy with relevant evidences. The assessee, in response, submitted that opening stock of trading goods were old stock and hence valued at cost. The fashion trend for these items changed during the year and hence the company managed to sell 52 items @ Rs. 240 per piece and out of 842 piece shown in sales 790 pieces were given us from freebies. However, the said explanation was not accepted to the AO as the assessee was not able to prove that the items were given as freebies and held that the 790 pieces were actually sold and income of which had not been disclosed in the books of account. The AO adopted rate at which the said pieces were sold during the year and the undisclosed income in respect of above item was held to be Rs.1,89,600/- (790x240). Accordingly, the AO added the impugned amount to the total income of the assessee. On appeal, the Ld.CIT(A) confirmed the said addition. Aggrieved by the impugned decision, the assessee has raised this ground in the appeal before us.
4.2 Having heard both the sides and perused the material on record, it is pertinent to mention that the assessee during the assessment proceeding has given the details of the freebies of 790 samples and the break up of freebies on trading item to the AO. The break up shows that the assessee has given the freebies to the companies namely First Choice, Indo Fabrics, Style Setlers and Transit for Sales Seven Days. The relevant break up contains the actual invoice, number of total quantity and the relevant details are available at page no. 34 of the paper book. The ITA No. 5262/Mum/2011 6 M/s. India Fashions Ltd.
Assessment Year: 2004-05 perusal of page no. 76 of the Paper Book indicates that the assessee has made sales to the parties to whom freebies are given. When the details have been so provided to the AO, we are of the view that the AO is not justified in doubting the genuineness of freebies given by the assessee by concluding that the freebies are sold for a price. In such an event, we do not find any justification on the part of the Ld.CIT(A) to confirm the impugned addition made by the AO. In view of that matter, the impugned addition confirmed/made by the Ld.CIT(A)/AO stands deleted. Ground No. 4 is allowed.
5. In Ground No. 5, the assessee has agitated the decision of the Ld.CIT(A) in confirming the disallowance of Rs.1,86,178/- made by the AO u/s 14A of the Income Tax Act.
5.1 The relevant facts are that the AO had noted that the assessee had received Rs.1,96,351/- as dividend income which was exempt under the Income Tax Act. Accordingly, the AO requested the assessee to furnish details of expenditure attributable to earning the exempt income in view of the provisions of section 14A. The assessee, in response, submitted that it did not incur any expenses to earn the dividend income and hence no disallowance was warranted. Having not satisfied with the explanation of the assessee, the AO had worked out the common expenses debited to the P/L Account by the assessee at Rs.62,05,928/- and proceeded to make a disallowance of Rs.1,86,178/- holding that 3% of common expenses calculated at Rs.62,05,928/- were attributable to the expenditure for earning exempt income. On appeal, the Ld.CIT(A) upheld the disallowance made by the AO. Aggrieved by the impugned decision, the assessee has raised this ground in the appeal before us.
5.2 Having heard both the sides and perused the material on record, it's a matter of fact that the assessee has earned an exempt income of Rs.1,96,351/- and the assessee has not offered any disallowance in respect of earning the exempt income. No doubt, the assessee would have incurred certain administrative expenses for earning the exempt income. However, we are of the considered opinion that disallowance of 3% of the common expenses seems to be on the excessive side. In ITA No. 5262/Mum/2011 7 M/s. India Fashions Ltd.
Assessment Year: 2004-05 this connection, it is relevant to state that the the Hon'ble Bombay High Court in the case of CIT vs. Ms. Godrej Agrovet Ltd vide Income Tax Appeal No. 934 of 2011, dated 8.1.2013, has held that percentage of the exempt income can constitute a reasonable estimate for making disallowance in the years earlier to the assessment year 2008-09. Following the said ratio, we remand the matter back to the file of the AO to restrict the disallowance only to the extent of 5% of the total exempt income. We direct and order accordingly. Ground No 5 is partly allowed.
6. In the result, the appeal filed by the Assessee treated as allowed.
Order pronounced in the open court on this 8th day of August, 2014.
Sd/- Sd/-
(D. KARUNAKARA RAO) (Dr. S.T.M. PAVALAN)
ACCOUNTANT MEMBER JUDICIAL MEMBER
Mumbai, Dated: 08.08.2014
*Srivastava
Copy to: The Appellant
The Respondent
The CIT, Concerned, Mumbai
The CIT(A) Concerned, Mumbai
The DR "I" Bench
//True Copy//
By Order
Dy/Asstt. Registrar, ITAT, Mumbai.