Jailaxmi Transport, vs Assessee on 25 May, 2012

Income Tax Appellate Tribunal - Cuttack

IN THE INCOME TAX APPELLATE TRIBUNAL, CUTTACK BENCH, CUTTACK Before : Shri K.K.Gupta, AM, and Shri K.S.S.Prasad Rao, JM ITA No.292/CTK/2012

(Assessment Year 2008-09)

Jailaxmi Transport, Bank Versus Asst.Commissioner of Income- Street, Opp.Municipal tax, Circle 1(2), Cuttack. Office,Bypass Road,Jajpur

Road 755 019.

PAN: AAFFJ 6623 H

(Appellant) (Respondent) For the appellant: Shri D.K.Seth/M.Seth/K.Seth, ARs For the respondent Shri A.Naik, DR

Date of hearing : 21.05.2012

Date of pronouncement : 25.05.2012

ORDER

Shri K.K.Gupta, AM : This is an appeal filed by the assessee against the order dt.30.3.2012 of the Commissioner of Income-tax (Appeals) for the Assessment Year 2008-09.

2. The assessee has raised the following grounds of appeal.

1. For that under the facts and circumstances of the case the order of the learned Commissioner is arbitrary and bad-in-law.

2. For that the order of assessment appears to have been back dated and hence is barred by limitation for although the same is dt.24.12.2010 ,that the same was not ready for service till 30.01.2011.

3. For that the addition of ₹11,52,000 by way of disallowing the claim of 'Remuneration to Partners " is wholly unjustified and the learned A.O. as well as the learned Commissioner failed to appreciate the submissions and explanation furnished by the appellant.

4. For that the addition of ₹63,84,528 by disallowing claim of expenditure under head Drivers' Commission" is arbitrary and unjustified . The learned Commissioner failed to appreciate the submission of the appellant. Moreover the learned Assessing Officer submitted the Remand Report without considering the facts of the case and the learned Commissioner was not justified to follow the Remand Report.

ITA No.292/CTK/2012

2. During the course of hearing, the learned AR of the assessee did not press grounds No.1 and 2 and as such, the same are dismissed as not pressed.

3. Apropos grounds No.3 and 4, he submitted the relevant facts are that the assessee is a firm indulged in transportation contracts transporting goods of the contractee and it filed return declaring a total income of ₹ 69,69,920. The Assessing Officer in the scrutiny proceedings u/s.143(3) considered the partners remuneration disallowable in view of the partnership deed dt.11.12.2006 mentioned that the working partners will be allowed salary of ₹2,000 per month when the salary has been paid to the two working partners @ ₹6 lakhs each in the impugned assessment year. He considered the remuneration to partners allowable to the extent of ₹48,000 disallowing ₹11,52,000. Further he noted that commission to drivers has been paid amounting to ₹63,84,528 when the AR of the assessee submitted before him the transportation bills and the ledger copy of the accounts of the contractee that required the assessee to reimburse the amount paid to the drivers at the point of loading. The contractee had paid these amounts to the drivers who were top handle their goods in good faith. The assessee raised the bills for the transportation charges including this amount which was specifically asked for to be included in their bills by the contractee themselves. In other words, the payments were reimbursed were not to be part of the bills rendering income to the assessee. However, the assessee had not reduced the sum of ₹63,84,528 from the transportation charges received amounting to ₹28.38 Crores. But claimed separately The Assessing Officer held this amount as drivers commission not allowable holding a view that he ought to have deducted tax at source u/s.194H of the I.T.Act,1961. ITA No.292/CTK/2012

4. Aggrieved, the assessee appealed before the first appellate authority who considered the case of the assessee appellant before him and confirmed these two disallowances by indicating that Circular No.739 dt.25.3.1996 of the CBDT instructed that when the amount for determination for remuneration to the partners remains undeterminable at the end of the accounting period would not be allowed as deduction in computation of firm's income. On the second issue, the learned CIT(A) upheld the disallowance by misdirecting himself that an extra bonus should have formed part of the TDS Certificate in Form 16A to the drivers. The learned CIT(A) negated the claim of the assessee that it was an expenditure not to be claimed separately for reimbursement. Aggrieved, the assessee is in before the Tribunal on these issues.

5. The learned Counsel for the assessee initiating his arguments submitted that the learned CIT(A) erred in holding a view being instruction of the CBDT when the said instruction has been done away with by the Hon'ble Himachal Pradesh High Court, Shimla in the case of M/s.Durga Dass Devki Nandan v. Income-tax Officer in ITA No 4 of 2005 dt.11.3.2011 (copy produced) which decision is on the prime contention that the Circular has to be read along with Section 40(b)(v) which does not lay down any condition for fixing the remuneration. The assessee having returned income of more than ₹69 lakhs could have paid remuneration to the extent of 90% of the said income which salary income was to be taxed in the hands of the partners as business income. He submitted that the Assessing Officer's choosing to pick the amount mentioned in the partnership Deed dt.11.12.006 was to be read with conjunction with the resolution passed by the partners (copy produced) who have inscribed the name of work rendered by the partners entitled for remuneration of ₹6 lakhs each. Therefore, it was nobody's case to deny the ITA No.292/CTK/2012

remuneration when the revenue stands to gain by receiving more tax, other than the firm tax, which was the intention of the legislation that had been brought on the statute w.e.f. AY 1993-94. The Circular, therefore only identified that a firm if pays remuneration to its partners has to inscribe the amount quantified before the beginning of the year when there is a change in the partnership. Here, the Assessing Officer himself has held the firm as a registered partnership as such with copy of resolution being part of the Deed therefore could not disturb the remuneration paid to the partners on the premise that the firm had to pay the same remuneration which was being paid earlier. On the second issue, the learned Counsel for the assessee has submitted the remand report of the AO which rather leans in favour of the assessee's contention that all the facts and figures examined by the Assessing Officer but disallowed the total claim only on the ground that such expenditure was not necessary to be incurred without TDS. It was explained to the Assessing Officer that it was a reimbursement when he verified the bills which sample copies were produced indicated that the contractee himself incurred this expenses which were to be accounted for by the contractee on the basis of bills raised by the assessee was purely a reimbursement. The learned CIT(A) therefore erred in holding a view that reimbursement had not been proved insofar as the bonus being the expenditure named as commission in the P & L account should have at least been indicated in the form 16A to the drivers. The learned Counsel for the assessee vehemently argued that the assessee does not own the trucks and drivers to indulge to issue Form 16A. The Assessing Officer having satisfied himself at the threshold rightly indicated by way of a remand report submitted that there was no fresh evidence put forth by the assessee for consideration before the learned CIT(A) and the issue being taken up before ITA No.292/CTK/2012

the learned CIT(A) was considered by the Assessing Officer in the original proceedings. In other words, the learned CIT(A) ought to have accepted the fact that the reimbursement was purely a goodwill gesture on the part of the assessee who ought to have reduced the same from the gross receipts amounting to ₹28.38 Crores when he chose to claim the same separately in the P & L account amounting to ₹63,84,528 being the accounting standard under the mercantile system of accounting. He submitted that both these additions may be directed to be deleted as disallowance thereof has no basis in the eyes of law as per the facts and circumstances which both the authorities below have found uncontroverted.

6. The learned DR submitted that the learned CIT(A) has confirmed the disallowance on the basis of facts and findings brought on record by the Assessing Officer which he fully supported for his part of submissions.

7. We have heard the rival contentions and perused the material available on record. Considering the facts and circumstances of the case, we are inclined to find favour in the contention of the learned Counsel for the assessee. Remuneration to be paid to the partners is governed by the provisions of Section 40(b)v) when the authorities misdirected themselves to consider the instruction of the CBDT in Circular No.739 which was in 1996 for a recent amendment for Assessment Year 1993-94 onwards in the I.T.Act. The intention for the impugned Assessment Year therefore has been wrongly considered. Having granted the remuneration paid to the partners in the immediately preceding year the quantum of salary could vary in accordance with the resolution passed by the partners when the partnership deed remained the same. The requirement of furnishing a copy of partnership Deed could not be used against the assessee for quantum addition of disallowance of remuneration. We find force in the contention of the learned ITA No.292/CTK/2012

Counsel for the assessee that the salary paid to the partners has been rendered to tax by them in their individual capacity which fetched more tax for the Revenue and the disallowance cannot be against the provisions of the I.T.Act. The learned Counsel for the assessee has relied on the decision of Himachal Pradesh High Court, Shimla in the case of M/s.Durga Dass Devki Nandan v. Income-tax Officer in ITA No 4 of 2005 dt.11.3.2011 (supra), which is squarely applicable to the issue on hand and has been relied on in another the decision of ITAT, Cuttack Bench in the case of Asst.Commissioner of Income-tax v. Dr. Sarojini Pradhan in ITA No.393/CTK/2011 , wherein under similar circumstances, the Tribunal held that the refusal to allow remuneration to the partners would result in holding the firm as un-registered firm which was not the case of the Assessing Officer. Having set a limit on firms income, the salary or remuneration to the partners can be varied by passing necessary resolution and would have to be inscribed in the books of account as such. It is not the case of the assessee to have claimed only ₹2000 per month which appears to have been considered by the Assessing Officer in granting ₹48,000 for both the partners as against ₹12 lakhs claimed. The learned CIT(A) therefore erred in confirming the view of the AO by scrupulously following the CBDT Circular without adjudicating the issue on the basis of facts brought on record by the assessee. Therefore, we direct the Assessing Officer to allow the claim of ₹12 lakhs being the remuneration paid to the partners.

8. On the second issue, we are more concerned with the fact that the Assessing Officer took recourse to submit the remand report by obstructing the deliberation for the judgment on appeal by the assessee before the learned CIT(A). In other words, the learned AO appears to have superimposed his disallowance of the expenditure being the drivers' commission claimed in ITA No.292/CTK/2012

the P & L account amounting to ₹63,84,525 when he was apprised of the fact that the assessee was asked by the contractee to include the amounts paid to the drivers by them so that the payments under the transport charges become conclusive. The learned Counsel for the assessee had submitted the sample copies of the bills raised, ledger copy of the contractee and also the financial statements when the sum of ₹28.38 Crores transportation charges receipt resulted in net income of ₹69,69,000 after remuneration to the partners amounting to ₹12 lakhs. No infirmity has been pointed out by the authorities below insofar as the accounting of the assessee has been faulted by both but at the same time rather justices the contention which has been brought out otherwise for taxation or disallowance at source under the provisions of Section 194H. The trucks were not belonging to the assessee, the drivers were not employed with the assessee and it was the expenditure incurred by the contractee when the bills were raised including this amount which the assessee before us has claimed below the line as drivers' commission. This peculiar disclosure in the P & L account ought to have been considered by the Assessing Officer in the light of the fact that the assessee does not have own trucks as per the Schedule of fixed assets filed along with the return. This would clarify the situation that the amount of expenditure as receivable from the contractee under mercantile system of accounting maintaining accounting standard acknowledging the claim could not be brought to tax as trade creditors as well insofar as the contractee owed a sum of ₹94,47,304 to the assessee being more than the amount of expenditure incurred as drivers' commission. By no stretch of imagination can the amount be taxed as disallowable on the facts and circumstances insofar as the learned CIT(A) having called for the remand report to the AO rather negated the view of the learned CIT(A) who wanted to disallow the ITA No.292/CTK/2012

same but agreeing to the proposition of the assessee appellant before him and remaining inconclusive as can be perused in Para 6.2. of his order, insofar as he was yet to correlate the amount claimed for reimbursement in the bills raised by the assessee as extra bonus vis-a-vis drivers' commission claimed in the P & L account. In other words, the learned CIT(A) remained embroiled in the nomenclature of the expenditure which was not the issue before the Assessing Officer. On this score therefore we have no hesitation in setting aside the impugned order of the learned CIT(A). As per the facts brought on record by the Assessing Officer, we are inclined to grant relief to the assessee by deleting the impugned disallowance insofar as the transportation charges receipts included payment to the drivers for the safe delivery of goods of the contractee was as per the terms of the contract therefore could neither be held disallowable in isolation in the hands of the assessee for the simple reason that the amount was separately shown claimed in the P & L account but was actually forming part of the bills raised by the contractee who deducted tax at source on payment to the assessee in accordance with the provisions of the I.T.Act. In this view matter, the disallowance/addition of ₹63,84,528 made on this count is hereby directed to be deleted.

9. In the result, the appeal of the assessee is partly allowed. Sd/- Sd/- (K.S.S.Prasad Rao) (K.K.Gupta) Judicial Member Accountant Member Date: 25.05.2012

H.K.Padhee,

Senior Private Secretary.

ITA No.292/CTK/2012

Copy of the order forwarded to :

1. The Appellant: Jailaxmi Transport, Bank

Street, Opp.Municipal Office,Bypass

Road,Jajpur Road 755 019.

2. The Respondent: Asst.Commissioner of

Income-tax, Circle 1(2), Cuttack.

3. The CIT,

4. The CIT(A),

5. The DR, Cuttack

6. Guard File (in duplicate)

True Copy, By order,

Senior Private Secretary.