Income Tax Appellate Tribunal - Mumbai
Nirmal Bot Ltd, Mumbai vs Dcit 15(2)(1) Erstwhile Dcit 10(3), ... on 8 May, 2017
IN THE INCOME TAX APPELLATE TRIBUNAL
"J" BENCH, MUMBAI
BEFORE SHRI SAKTIJIT DEY, JUDICIALMEMBER AND
SHRI MANJUNATHA G, ACCOUNTANT MEMBER
ITA no.2879/Mum./2015
(Assessment Year: 2011-12)
Nirmal Bot Ltd,.
10th floor, B Wing, Hincon House, LBS Marg,
Vikhroli (W) Mumbai 400083 ................ Appellant
PAN AACCN3935A
v/s
DCIT, 15(2)(1)
Erstwhile DCIT 10(3)
R. No.451, Aayakar Bhavan ................ Respondent
Mumbai 400020
Assessee by : Shri. Prasad Bajpai
Revenue by : Shri. Anup Johari
Date of Hearing -08.05.2017 Date of Order - 24.05.2017
ORDER
PER: MANJUNATHA G. This appeal filed by the assessee is directed against order of the CIT(A)-24, Mumbai dated 16.02.2015 and it pertains to the assessment year 2011-12.
Nirmal Bot Ltd,.
ITA no.2879/Mum./2015
2. The brief facts of the case are that the assessee is a company, engaged in the business of design, engineering, finance, construction, operations and maintenance of National Highways on BOT annuity basis awarded by the National Highways Authorities of India Ltd.(NHAI). As per the concession agreement entered into with M/s. NHAI the assessee needs to construct and maintain a road for a period of 20 years on annuity basis. The assessee has filed its return of income for the A.Y. 2001-12 on 26.09.2011 declaring loss of Rs.3,31,40,615/-. The case has been selected for scrutiny, accordingly notices u/s. 143 (2) and 142(1) of the Act were issued. In response to notices, the authorised representative of the assessee appeared from time to time and furnished relevant information as called for. During the course of assessment proceedings, the A.O observed that the assessee has claimed an amount of Rs.3,14,53,813/- towards periodic major maintenance expenses and also sum of Rs.1,30,98,574/- under repairs and maintenance. The AO further observed the assessee has debited said expenditure by creating a provision, therefore issued a show cause notice and asked as to why the provision for major maintenance expenses which is neither actually incurred nor liability arises should not be disallowed.
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Nirmal Bot Ltd,.
ITA no.2879/Mum./2015
3. In response to show cause notice, the assessee vide submission dated 31.12.2013 and 20.01.14 submitted that as per the concession agreement with NHAI, it needs to operate and maintain the highways for which the assessee needs to carry out major repair works once in every 5th year from the date of signing the agreement, as per which it has made a provision in the books of accounts towards 1/5th of such estimated major periodic repair and maintenance expenditure for the year under consideration by following the matching concept principals of accounting, as per which the expenditure relatable to earning of income should be provided in the relevant financial year, whether or not such expenditure is actually incurred or paid during the relevant financial year. The A.O after considering this submission of the assessee, held that the assessee has not incurred any expenditure on this account during the year under consideration. As per the agreement with NHAI, the liability to incur expenditure will arise in the financial year 2013-14, but not in the year under consideration. The estimated expenditure towards subsequent liability is not ascertained liability, but only a contingent liability which cannot be allowed as deduction. With this observations, disallowed expenditure incurred under the head manor repairs and maintenance of Rs.4,45,52,387/.
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Nirmal Bot Ltd,.
ITA no.2879/Mum./2015
4. Aggrieved by the assessment order, the assessee preferred an appeal before the CIT(A). Before the CIT(A), the assessee has filed elaborate written submissions and argued that it has made a provision towards major periodic repairs and maintenance expenditure as per the concession agreement entered into with M/s. NHAI for construction and maintenance of national highways. As per the terms of agreement, the assessee needs to carry out periodic maintenance of the asset and also carry out major periodic repairs and maintenance once in every 5 years, for which the assessee has made reasonable estimate of amount required to be incurred for major repairs and maintenance which has been apportioned over a period of 5 years by following matching concept principals of accounting as per which all relatable expenditure towards earning income should be provided the books of account whether or not such expenditure is actually incurred or paid during the relevant financial year. In support of its argument relied upon the certain judicial decisions.
5. The CIT(A), after considering the relevant submission of the assessee, observed that the assessee did not file any evidence with respect to actual expenditure incurred during the year towards regular periodic maintenance activity. The CIT(A) further observed that the assessee needs to incur said expenditure once in every 5 4 Nirmal Bot Ltd,.
ITA no.2879/Mum./2015 years which falls under the financial year 2013-14, but not for the year under consideration. Moreover, the assessee had only provided the expenditure in the financial statements without incurring such expenditure, therefore opined that the A.O was right in disallowing expenditure claimed under the head repairs and maintenance. However, further observed that out of the total disallowance of Rs.4,45,52,387/- a sum of Rs.1,13,98,574/- was not claimed as deduction and adjustment is made under the head prior period adjustment which was added back in the computation of total income, therefore directed the A.O to restrict disallowance to Rs.3,14,53,813/-. Aggrieved by the CIT(A) order, the assessee is in appeal before us.
6. The Ld. A.R for the assessee, submitted that the Ld. CIT(A) was erred in disallowing periodic major maintenance expenses on the ground that the said expenditure was not incurred during the relevant financial year. The Ld. A.R referring to the concession agreement entered into with M/s. NHAI, submitted that the assessee needs to carry out major periodic maintenance of the asset for which it has made reasonable estimation of expenditure to be incurred at the end of 5th year in accordance with concession agreement with NHAI which has been apportioned for a period of 5 years by following the matching concept principals of accounting as 5 Nirmal Bot Ltd,.
ITA no.2879/Mum./2015 per which of relevant expenditure towards earning income should be provided in the books of account, whether or not such expenditure was actually incurred or paid during the relevant financial year. The A.R further submitted that assessee being a company required to follow mercantile system of accounting, according to which it has made a provision of expenditure to be incurred for major periodic repairs and maintenance expenditure for the year under consideration. The said expenditure has been estimated on the basis of agreement with NHAI which specifies the work to be under taken towards major periodic repairs and maintenance expenditure. The assessee has prepared estimated cash flow statement, wherein made a reasonable estimation of amount to be incurred for major periodic repairs and maintenance expenses. The said estimation has been made on the basis of works to be under taken as per concession agreement with NHAI which may vary at the time of incurring expenditure, however it need to incur such expenditure, therefore the liability is crystallized at the end of the 5 th year, therefore the A.O was not correct in observing that such liability is not arised during the relevant financial year.
7. The Ld. DR strongly supported order of the CIT(A). The Ld. D.R further submitted that the assessee made a provision in the books of accounts towards estimated expenditure, without incurring 6 Nirmal Bot Ltd,.
ITA no.2879/Mum./2015 any expenditure for repairs and maintenance. As per the agreement, liability to incur such expenditure will arise in the financial year 2013-14, but not in the year under consideration. The agreement with M/s NHAI requires carry out major repairs works at the end of 5th year, which falls under the finical year 2013-14 and any expenditure to be incurred for such work will arise only in the financial year 2013-14, but not in the year under consideration. The A.O as well as the CIT(A) has rightly appreciated the facts to disallow expenditure and their order should be upheld.
8. We have heard both the parties and perused the materials available on records. The A.O disallowed major periodic repairs and maintenance expenditure on the ground that the assessee has made a provision in the books of account without actually incurring such expenditure for the relevant financial year. According to the A.O, the liability to incur such expenditure will arise only in the financial year 2013-14, but not in the year under consideration. The A.O further observed that the expenditure debited by the assessee is contingent in nature, but not ascertained or crystallized liability which is allowable as deduction. It is the contention of the assessee that it needs to carry out major periodic repairs works to the road constructed and maintained, as per the concession agreement entered into with M/s NHAI. The assessee further contended that as 7 Nirmal Bot Ltd,.
ITA no.2879/Mum./2015 per the terms of the agreement, the assessee required to estimate the probable expenditure to be incurred for such major repairs works in consultation with M/s NHAI which is evident from the fact that an estimated cash flow statement has been annexed to the concession agreement. As per said agreement the assessee has made reasonable estimate of Rs.11.66 crores for, major periodic repairs and maintenance expenditure in the financial year 2013-14 which has been apportioned over a period of 5 years by following matching concept principals of accounting, therefore the A.O was erred in observing that such liability is not arised to the assessee for the relevant financial year.
9. The only question arises for our consideration is whether on the facts and in the circumstances of the case, the provision made towards major periodic repairs and maintenance expenditure is allowable deduction while computing income under the head profit and gains of business or profession. It is an admitted fact that when mercantile system of accounting is followed a provision required to be created in the books of accounts towards all related expenditure whether or not said expenditure was paid during the relevant financial year. The only requirement is that the assessee need to make a provision with a reasonable estimate of the liability as a result of past event embodied with outflow of resources is expected 8 Nirmal Bot Ltd,.
ITA no.2879/Mum./2015 to settle the obligation and the amount of the obligation can be reasonably estimated. The provision is required to be recognized in the books of accounts when assessee has a present obligation as a result of past event it has probability that out flow of resources embodying economics benefit will be required to settle the obligation. Therefore, from the principles of accounting it is very much clear that to make a provision for any liability in the books of accounts, the liability should be ascertained and crystallized as on the balance sheet date. In case, such liability is not ascertainable as on the balance sheet date, which can be at best provided as contingent liability, but not as a crystallized liability.
10. In this case, on perusal of the facts available on record, we find that the assessee has entered into a concession agreement with NHAI for operation and maintenance of asset as per which the assessee require to carry out periodic repairs and maintenance works and also required to carry out major periodic repairs and maintenance works once in every 5 years. As per the terms of the agreement, the works to be under taken has been specified, however the amount to be incurred for such works has not been specified. Though, the assessee referring to the agreement with NHAI states that it had made a reasonable estimate of expenditure to be incurred in consultation with NHAI, on perusal of the copy of 9 Nirmal Bot Ltd,.
ITA no.2879/Mum./2015 agreement, we find that the assessee has made a estimated cash flow statement wherein made a provision of Rs.11.66 crores at the end of the 5th year which falls under the financial year 2013-14. Therefore, in our considered view the liability to incur such expenditure will arise only in the financial year 2013-14, but not in the year under consideration. We further observed that the assessee has made a provision in the books of accounts without incurring any expenditure and also such liability is not ascertainable during the year under consideration. Once the liability is not ascertainable with reasonable estimate, then such liability cannot be considered as ascertained liability or crystallized liability which arises to the assessee during the relevant financial year.
11. In this case, liability will arise only in the financial year 2013- 14 which can be estimated on such date on the basis of facts available during the that period. But, any estimate made on the basis of events which will happen in the future date cannot be considered as liability which arises to the assessee for the current financial year. Therefore, we are of the considered view that the expenditure debited by the assessee under the head major periodic repairs and maintenance expenditure by creation of a provision in the books of accounts is not arising during the relevant financial year and hence, the A.O was right in disallowing expenditure 10 Nirmal Bot Ltd,.
ITA no.2879/Mum./2015 claimed under the head major periodic repairs and maintenance expenditure. Though the assessee has relied upon certain judicial precedents, we find that the case laws relied upon by the assessee are all together in different footing which cannot be applied to the facts of the assessee's case. The CIT(A) after considering the relevant submissions of the assessee has rightly upheld additions made by the A.O towards disallowance of expenditure. We do not find any error in the order of the CIT(A). Hence, we are inclined to uphold the CIT(A) order and dismiss appeal filed by the assessee.
12. In the result appeal filed by the assessee is dismissed.
Order pronounced in the Open Court on 24.05.2017
Sd/- Sd/-
SAKTIJIT DEY MANJUNATHA G
JUDICIAL MEMBER ACCOUNTANT MEMBER
MUMBAI, DATED: 24.05.2017
Copy of the order forwarded to:
(1) The Assessee;
(2) The Revenue;
(3) The CIT(A);
(4) The CIT, Mumbai City concerned;
(5) The DR, ITAT, Mumbai;
(6) Guard file.
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Nirmal Bot Ltd,.
ITA no.2879/Mum./2015
By Order
Nishant Verma
Sr. Private Secretary
(Dy./Asstt.Registrar)
ITAT, Mumbai
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Nirmal Bot Ltd,.
ITA no.2879/Mum./2015
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