Income Tax Appellate Tribunal - Ahmedabad
Sameer Linkages (Exports) Pvt. Ltd., ... vs Income Tax Officer, Ward-4(3), Baroda on 27 February, 2017
IN THE INCOME TAX APPELLATE TRIBUNAL
AHMEDABAD "B" BENCH
(BEFORE SHRI N.K. BILLAIYA, ACCOUNTANT MEMBER
& SHRI MAHAVIR PRASAD, JUDICIAL MEMBER)
ITA. Nos: 1572 & 3071 to 3073/AHD/2013
(A.Ys. : 2008-09, 2007-08, 2009-10 & 2010-11)
M/s. Sameer Linkages V/S Income Tax Officer, Ward-
(Exports) Pvt. Ltd. 623, 4 (3), Baroda
GIDC Industrial Estate,
Makarpura, Vadodara-
390010
(Appellant) (Respondent)
PAN: AAECS 9430M
Appellant by : Shri Milin Mehta, AR
Respondent by : Shri James Kurian, Sr. D.R.
(आदे श)/ORDER
Date of hearing : 21 -02-2017
Date of Pronouncement : 27 -02-2017
PER N.K. BILLAIYA, ACCOUNTANT MEMBER:
1. ITA Nos. 1572 & 3071 to 3073/Ahd/2013 are appeals by the assessee preferred against four separate orders of the ld. CIT(A)-III, Baroda dated 2 ITA Nos. 1572 & 3071 to 3073/Ahd/2013 . A.Ys. 2007-08 to 2010-11 15.03.2013, 18.10.2013, 25.10.2013 & 25.10.2013 pertaining to A.Ys. 2008- 09, 2007-08, 2009-10 & 2010-11 respectively.
2. As common grievance is involved in all these appeals, they were heard together and are disposed of by this common order for the sake of convenience.
3. The common grievance in all these appeals relate to the additions made by the A.O. on account of inflation of profits of the eligible unit u/s. 10A of the Act, though quantum may differ in the impugned assessment years. We have heard the rival submissions on the facts of ITA No. 1572/Ahd/2013.
4. The assessee is engaged in the business of manufacturing of parts of valves, industrial valves, industrial linkage and custom made components. During the course of the scrutiny assessment proceedings and on perusal of the Audit report, the A.O. found that the assessee has made payments to the persons covered u/s. 40A(2)(b) and the relevant detail for the appeals under consideration relates to the purchases of raw material made from Samir Linkage Pvt. Ltd.
5. The assessee was asked to justify the purchase of raw materials from a related party. It was explained that the purchase have been made at reasonable market rate and in support of its claim, the assessee submitted quotations of other parties for the purpose of comparing rates paid to the associate concern. It was brought to the notice of the A.O. that the 3 ITA Nos. 1572 & 3071 to 3073/Ahd/2013 . A.Ys. 2007-08 to 2010-11 assessee company has not purchased the same material from any other parties during the year.
6. The detailed submissions of the assessee did not find any favour with the A.O. who was of the firm belief that for purchasing the raw material at a lower cost, the assessee has inflated its profit which is eligible for tax exemption u/s. 10A of the Act. The A.O. further observed that since the assessee's associate concern is not entitled to claim exemption u/s. 10B of the Act, therefore, the profit of the associate concern has been diverted towards the eligible concern, that is the assessee. The A.O. accordingly made the addition of Rs. 10,18,386/- in A.Y. 2008-09, Rs. 9,99,686/- in A.Y. 2007-08, Rs. 19,22,575/- in A.Y. 2009-10 & Rs. 21,01,690/- in A.Y. 2010-11.
7. The assessee carried the matter before the ld. CIT(A) in the respective assessment years but without any success.
8. Before us, the ld. counsel for the assessee reiterated what has been stated before the lower authorities. It is the say of the ld. counsel that the revenue authorities have grossly erred in making the impugned additions without there being any material evidence to prove that the assessee has earned more than ordinary profits. The ld. counsel further stated that there is nothing on record to suggest that the purchase price was unreasonable. The ld. counsel concluded by saying that both the assessee and the associate concern are taxed at the same rate of tax and, therefore, there is 4 ITA Nos. 1572 & 3071 to 3073/Ahd/2013 . A.Ys. 2007-08 to 2010-11 no benefit whatsoever derived by the assessee by the alleged allegation made by the revenue.
9. Per contra, the ld. D.R. strongly supported the findings of the ld. CIT(A).
10.We have given a thoughtful consideration to the orders of the authorities below. It is true that the A.O. has examined the transaction with associate concern within the parameters laid down u/s. 40A(2) of the Act which reads as under:-
(a) Where the assessee incurs any expenditure in respect of which payment has been or is to be made to any person referred to in clause (b) of this sub-section, and the [Assessing] Officer is of opinion that such expenditure is excessive or unreasonable having regard to the fair market value of the goods, services or facilities for which the payment is made or the legitimate needs of the business or profession of the assessee or the benefit derived by or accruing to him therefrom, so much of the expenditure as is so considered by him to be excessive or unreasonable shall not be allowed as a deduction:
[provided that no disallowance, on account of any expenditure being excessive or unreasonable having regard to the fair market value, shall be made in respect of a specified domestic transaction referred to in section 92BA, if such transaction is at arm's length price as defined in clause (ii) of section 92F.]
(b) The person referred to in clause (a) are the following, namely :-
(i) where the assessee is an individual any relative of the assessee;
(ii) where the assessee is a company, firm any director of the company,
association of persons or Hindu un- partner of the firm, or member
Divided family of the association or family, or any
Relative of such director, partner or Member;
(iii) any individual who has a substantial interest in the business or profession of the assessee, or any relative of such individual;
(iv) a company, firm, association of persons or Hindu undivided family having a substantial interest in the business or profession of the assessee or any director, partner or member of such 5 ITA Nos. 1572 & 3071 to 3073/Ahd/2013 . A.Ys. 2007-08 to 2010-11 company, firm, association or family, or any relative of such director, partner or member [or any other company carrying on business or profession in which the first mentioned company has substantial interest];
(v) a company, firm, association of persons or Hindu undivided family of which a director, partner or member, as the case may be, has a substantial interest in the business or profession of the assessee; or any director, partner or member of such company, firm, association or family or any relative of such director, partner or member;
(vi) any person who carried on a business or profession,-
(A) where the assessee being an individual, or any relative of such assessee, has a substantial interest in the business or profession of that person; or (B) where the assessee being a company, firm, association of persons or Hindu undivided family, or any director or such company, partner of such firm or member of the association or family, or any relative of such director, partner or member, has a substantial interest in the business or profession of that person.
Explanation- For the purpose of this sub-section, a person shall be deemed to have a substantial interest in a business or profession, if,-
(a) in a case where the business or profession is carried don by a company, such person is, at any time during the previous year, the beneficial owner of shares (not being shares entitled to a fixed rate of dividend whether with or without a right to participate in profits) carrying not less than twenty per cent of the voting power; and
(b) in any other case, such person is, at any time during the previous year, beneficially entitled to not less than twenty per cent of the profits of such business or profession.
11.A perusal of the afore-stated section shows that the provisions are triggered when the A.O. finds that the assessee has incurred any expenditure in respect of which payment has been made which in the opinion of the Assessing Officer is excessive or unreasonable having regard to the fair market value of the goods. The facts on record show that the only allegation of the revenue authorities is that the assessee has purchased raw material from the associate concern at a price which is lower than the market price. We fail to understand, when the price paid by the assessee is lower than the market price how the provisions of section 6 ITA Nos. 1572 & 3071 to 3073/Ahd/2013 . A.Ys. 2007-08 to 2010-11 40A(2)(b) apply on the given facts of the case in hand. It is also true that the assessee has shown better profit results then its associate concern. Therefore the transaction of the purchase of raw materials cannot be said to be at unreasonable price. We also do not find that due to the impugned transaction of the purchase of raw materials from the associate concern, the transaction has provided more than ordinary profits, when the margins of profit of the assessee and the associate concern are almost at par.
12.In our considered opinion, the impugned transaction has not resulted into any extraordinary profit to the assessee. Further, in our considered opinion, the provisions of Section 40A(2)(b) of the Act do not apply on the facts of the case in hand. Considering the facts of the case in hand from all possible angles, we do not find any merit in the impugned additions made by the A.O. We, accordingly set aside the findings of the ld. CIT(A) and direct the A.O. to delete the additions from all the assessment years under appeal.
13.Before closing in ITA No. 3071/Ahd/2013 for A.Y. 2007-08, the assessee has also challenged the reopening of the assessment u/s. 147 of the Act. It is the say of the ld. counsel that the completed assessment was reopened after the completion of the assessment for A.Y. 2008-09. The relevant part reads as under:-
"It was detected at the time of making assessment for A.Y. 2008-09, the assessee has paid labour charges of Rs.4,26,598/- and payment of Rs.l,64JO, 100/- for purchase of raw material to Sameer Linkages Pvt. Ltd. which is associate concern of the assessee company and the sister concern is not eligible to claim deduction under chapter VI-A of the I. T. Act or exemption u/s. 10B. The assessee is entitled to claim exemption on 100% profit u/s. 10B. On working of comparative rates 7 ITA Nos. 1572 & 3071 to 3073/Ahd/2013 . A.Ys. 2007-08 to 2010-11 paid to the associate concern and rates prevalent in the market, it was found that the assessee had made less payment on labour charges by 7.92% and on purchases by 6% during A.Y. 2008-09. It is to mention that exemption claimed u/s. 10B was withdrawn on the profit diverted from the profit of the associate concern during scrutiny assessment proceedings for A.Y. 2008-09.
Further, on perusal of record for A.Y. 2007-08, it is noted that the assessee had made payment of Rs. 14,01,669/-and Rs.1,48,11,237/- on account of labour charges and raw material purchases to Sameer Linkages Pvt. Ltd. Applying the same ratio, worked out during A.Y. 2008-09, i.e. 7.92% & 6% on job work and purchase respectively, the amount of diverted profit, from sister concern, on which exemption u/s. 10B of the I.T. Act claimed is worked out as under-
Labour Charges- Rs. 14,01,669 * 7.92% = Rs. 1,11,012/-
Purchase Rs. 1,48,11,237 * 6% - Rs. 8,88,674/-
Thus, the assessee has fetched profit from the associate concerns to the extent of Rs.9,99,686/- (Rs.1,11,012/- + Rs.8.88,674/-) by making payment at lower side and claimed exemption u/s. 10B on diverted profit. The assessee has claimed excess exemption u/s. I OB on diverted profit which need; to be withdrawn. In view of the above re-opening of assessment is legal and issue of notice u/s 148 is valid. The utilization of information lying on the record does not amount to illegal action i.e. re-opening of the assessment.
As per section 147 of the I.T. Act, 1961, if the Assessing Officer has reason to believe that any income chargeable to tax has escaped assessment for any assessment year, he may. subject to the provisions of sections 148 to 153, assess or reassess such income and also any other income chargeable to tax which has escaped assessment and which comes to his notice subsequently in the course of the proceedings under this section, or recomputed the loss or the depreciation allowance or another allowance, as the case may be, for the assessment year concerned (hereafter in this section and in sections I4d to 153 referred to as the relevant assessment year). In view of the above, it is held that notice u/s 148 of the I.T. Act has correctly been issued."
14.The ld. counsel strongly contended that all the relevant details were furnished before the A.O. which was duly examined before allowing the 8 ITA Nos. 1572 & 3071 to 3073/Ahd/2013 . A.Ys. 2007-08 to 2010-11 exemption u/s. 10B of the Act. Therefore by issuing notice u/s. 148 of the Act, the A.O. has changed his opinion which is not permissible for reopening the assessment.
15.Per contra, the ld. D.R. strongly supported the findings of the First Appellate Authority.
16.We have carefully considered the orders of the authorities below. It is true that the original assessment order was made u/s. 143(3) of the Act vide order dated 29.12.2009. It is also true that the assessee had claimed deduction u/s. 10B of the Act and the A.O. has allowed the claim as it was allowed in A.Y. 2004-05. The eligibility for the claim of deduction u/s. 10B of the Act was part of the audited statement of accounts accompanied by statutory Audit Report as prescribed under the Act.
17.Merely because in A.Y. 2008-09, the A.O. was of the view that certain purchases from associate concern has resulted into some benefit to the assessee, the A.O. cannot reopen a completed assessment merely on the strength of the findings given in A.Y. 2008-09. It is not a case of the revenue that while completing the original assessment for the impugned assessment year i.e. A.Y. 2007-08, the Officer has not examined the claim of exemption u/s. 10B of the Act. All the relevant materials were available before the A.O. before framing the assessment u/s. 143(3) of the Act.
9 ITA Nos. 1572 & 3071 to 3073/Ahd/2013. A.Ys. 2007-08 to 2010-11
18. In our considered opinion, the Act of the A.O. clearly shows that the notice has been issued merely on the strength of the change of opinion. Fresh application of mind by the A.O. on similar facts would tantamount to review of own decision. Therefore, change of opinion is not permissible to reopen a completed assessment. The A.O. has not brought any fresh/new material on record. Therefore, it is a case of absence of jurisdiction by the A.O. to militate proceedings u/s. 147/148 and in the absence of jurisdiction, the reassessment framed is illegal and void. Accordingly, we quash the assessment order for A.Y. 2007-08. This would be in addition to our detailed findings given on the merits of the impugned additions.
19.In the result, the appeals filed by the Assessee are allowed.
Order pronounced in Open Court on 27 - 02- 2017
Sd/- Sd/-
(MAHAVIR PRASAD) (N. K. BILLAIYA)
JUDICIAL MEMBER True Copy ACCOUNTANT MEMBER
Ahmedabad: Dated 27 /02/2017
Rajesh
Copy of the Order forwarded to:-
1. The Appellant.
2. The Respondent.
3. The CIT (Appeals) -
4. The CIT concerned.
5. The DR., ITAT, Ahmedabad.
6. Guard File.
By ORDER
Deputy/Asstt.Registrar
ITAT,Ahmedabad