JCIT(OSD), CIR-11(1), KOLAKATA, Kolkata V. M/s KRM International Ltd., Kolkata

ITA 1314/KOL/2016

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 6290 (ITAT-KOLKATA)
• Duration Of Justice: 2 year(s) 10 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 03-05-2019
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: C
• Assessment Year: 2005-2006
• Appeal Filed On: 10-06-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ROBINI CHOUDHURY
• Assessee Lawyers: SHEETAL KHEMKA
• Keywords: Capital asset; Depreciation; Business expenditure; Principle of natural justice; Additional evidence; Bad and doubtful debts; Assessment record; Commercial expediency; Revenue expenditure; Capital expenditure; TDS
• Section: 143(3); 143(1)

Judgement Text

, C , IN THE INCOME TAX APPELLATE TRIBUNAL KOLKATA BENCH C KOLKATA BEFORE SHRI S.S.GODARA, JUDICIAL MEMBER AND DR. A.L. SAINI, ACCOUNTANT MEMBER ITA NO. 1311 - 1314 / KOL / 20 2016 ASSESSMENT YEARS :1998-99, 2003- 04 TO 2005-06 JCIT(OSD), CIRCLE-11(1), P-7, CHOWRINGHEE SQUARE, KOLAKTA-700069 V/S . M/S KRM INTERNATIONAL LTD., 46/1B, BALLYGUNGE PLACE, NEW GARIAHAT, GROUND FLOOR, KOLKATA-19 [ PAN NO.AAABCK 2132 P ] /APPELLANT .. / RESPONDENT /BY ASSESSEE SHRI SHEETAL KHEMKA, FCA /BY REVENUE SHRI ROBINI CHOUDHURY, ADDL. CIT-DR /DATE OF HEARING 04-02-2019 /DATE OF PRONOUNCEMENT 03-05-2019 / O R D E R PER S.S.GODARA, JUDICIAL MEMBER:- THESE FOUR REVENUES APPEAL(S) FOR ASSESSMENT YEAR( S)1998-99, 2003- 04 TO 2005-06 ARISE AGAINST THE COMMISSIONER OF INC OME TAX (APPEALS)-10 KOLKATAS SEPARATE ORDER DATED 04.03.2016 (IN FORME R THREE ASSESSMENT YEARS) & 07.03.2016 PASSED IN CASE NOS 513, 514, 512 & 515 /CIT(A)-12(1)-10/09- 10/14-15/KOL; RESPECTIVELY INVOLVING PROCEEDINGS U/ S 143(3) OF THE INCOME TAX ACT, 1961; IN SHORT THE ACT. WE HAVE HEARD BOTH THE PART(IES) REITERATING THEIR RESPECTIVE STANDS AGAINST AND IN SUPPORT OF CIT(A)S FINDINGS DELETIN G VARIOUS DISALLOWANCE(S)/ADDITION(S) MADE BY THE ASSESSING O FFICER IN ALL FOUR ASSESSMENT YEAR(S). CASE FILE(S) PERUSED. ITA NO.1311-1314/KOL/2016 A.YS 98-99, 0 3-04 TO 05-06 JCIT(OSD) CIR-11(1), KOL. VS. M/S KRM INTE RNATIONAL LTD. PAGE 2 2. IT TRANSPIRES DURING THE COURSE OF HEARING THAT SOME OF THE ISSUES RAISED IN INSTANT FOUR APPEAL(S) ARE IDENTICAL, WE THEREFO RE PROCEED TO ADJUDICATE ALL THE FOUR INSTANT CASE(S) TOGETHER FOR THE SAKE OF C ONVENIENCE AND BREVITY. ASSESSMENT YEAR 1998-99 ITA NO.1311/KOL/2016 . 3. THE REVENUES FIRST SUBSTANTIVE GROUND RAISED IN THE INSTANT APPEAL CHALLENGES CORRECTNESS OF THE CIT(A)S ORDER REVERS ING ASSESSING OFFICERS ACTION DISALLOWING ASSESSEES FABRICATION CHARGES P AID TO M/S GOENKA INDUSTRIES AMOUNTING TO 59,72,233/- AS UNDER:- DECISION: 1. I HAVE EXAMINED THE ACTION OF THE AO IN MAKING THE DISALLOWANCE OF RS.59,72,233/- ON GROUNDS THAT NO SUCH FIRM COULD BE LOCATED AT TH E ADDRESS OFFERED BY THE APPELLANT-ASSESSEE. THE AO NOTICED THAT THE TURNOVE R OF THE ASSESSEE-COMPANY HAS REDUCED CONSIDERABLY FROM RS.36.24 CRORES IN THE PR EVIOUS YEAR TO RS.29.45 CRORES IN THE PRESENT YEAR UNDER APPEAL. THE AO ALSO NOTICED THAT THE EXPENSES HAVES SHOWN AN INCREASE, AND THESE EXPENSES INCLUDED INCREASE I N THE FABRICATION CHARGES TO RS.2.81 CRORES IN THE YEAR OF APPEAL FROM RS.1.95 C RORES N THE PREVIOUS YEAR. ACCORDING TO THE AO, THE ASSESSEE HAD SUBMITTED COP IES OF BILLS AND DETAILS OF THESE EXPENSES, AS ALSO SUBMITTED THAT THROUGH THE VALUE OF SALES HAD DECREASED THE QUANTITY HAVE IN FACT INCREASED DUE TO A CHANGE IN THE PRODUCTS MIX RESULTING IN HIGHER FABRICATION CHARGES. IT HAS ALSO BEEN RECORD ED BY THE AO THAT THE APPELLANT- ASSESSEE HAD SUBMITTED DETAILS OF SUCH CHANGES IN T HE PRODUCT MIX FOR SOME PERIODS. THEREAFTER, THE AO HAS RECORDED THAT ENQUIRIES WERE CONDUCTED BY ISSUE OF LETTERS THROUGH POST, WHICH HOWEVER REVEALED THAT SOME OF T HE PARTIES WHO CLAIMED TO HAVE DONE JOB WORK FOR THE ASSESSEE HAD EITHER LEFT, OR CLOSED THEIR CONCERNS, AND IN THE CASE OF M/S GOENKA INDUSTRIES NO SUCH FIRM WAS FOUN D AT THE ADDRESS GIVEN BY THE ASSESSEE. THE AO THEREAFTER CONFRONTED THE ASSESSEE -COMPANY WITH SUCH INFORMATION, AND ASKED TO PROVE THE SERVICES RENDER ED BY THE VARIOUS PARTIES. THE AO ALSO REQUIRED THE APPELLANT TO PRODUCE RECORDS, SO AS TO VERIFY THAT THE GOODS HAVE, IN FACT BEEN GIVEN TO, AND RECEIVED FROM THE CONCERNED PARTIES. THE AO ALSO REQUIRED THE APPELLANT TO PRODUCE THE ORIGINAL BILLS FOR EXA MINATION. THE AO HAS RECORDED THAT THE ASSESSEE HAD REPLIED THAT THE COPIES OF THE BIL LS HAVE ALREADY SUBMITTED, AND IT FURTHER REQUESTED FOR TWO WEEKS TIME TO FURNISH THE ORIGINAL BILLS AND TO PRODUCE THE STOCK RECORDS. HOWEVER, THE AO FOUND SUCH ATTITUDE ON THE PART OF THE ASSESSEE-APPELLANT TO BE DILATORY. THE AO HAS COMME NTED THAT THE ASSESSEE HAD NOT COMPLIED WITH REQUISITIONS ON TIME EVEN IN THE PAST AND HAS AGAIN NOT PRODUCED THE RECORDS CALLED FOR ON THE APPOINTED DATE. THE AO RE CKONED THAT EVEN IF THE CASES WHERE THE FIRMS ARE STATED TO HAVE CLOSED DOWN OR L EFT ARE CONSIDERED DOUBTFUL, THE CASE OF M/S GOENKA INDUSTRIES SHOWS THAT THE ASSESS EE HAS TAKEN BILLS FROM A ' NON- EXISTENT ' PARTY. THE AO HAS STATED THAT A BILLS OF THE PART Y SUBMITTED BY THE ASSESSEE, SHOWS THAT THE EXACT ADDRESS OF THIS CONC ERN HAS BEEN STRUCK OFF BY DARK INK ON THE COPIES OF THE BILLS, AND THAT THIS LENDS MORE DOUBT TO THE GENUINENESS OF THE EXPENDITURE CLAIMED BY THE ASSESSEE. THE AO NOT ICED THAT THE TOTAL AMOUNT OF BILLS DEBITED AGAINST THIS PARTY IS RS.S9,72,233/-, AND FURTHER OBSERVED THAT THE ITA NO.1311-1314/KOL/2016 A.YS 98-99, 0 3-04 TO 05-06 JCIT(OSD) CIR-11(1), KOL. VS. M/S KRM INTE RNATIONAL LTD. PAGE 3 ASSESSEE HAS FAILED TO ESTABLISH THE GENUINENESS OF THE WORK DONE BY M/S GOENKA INDUSTRIES. THE AO FURTHER OBSERVED THAT THE ASSESS EE HAD PRODUCED THE NEITHER THE ORIGINAL BILLS NOR THE STOCK RECORDS FROM WHERE THE FACTUM OF THE WORK COULD AT LEAST BE ESTABLISHED, VLS-A-VLS THE TOTAL AMOUNT OF WORK DONE. THIS EXPENDITURE WAS ACCORDINGLY DISALLOWED BY THE AO. 2. ON THE OTHER HAND, IT HAS BEEN ARGUED BY THE LD A.R IN APPEAL THAT THE AO HAS DISALLOWED THE GENUINE PAYMENT OF RS.S9,72,233/- MA DE BY THE APPELLANT COMPANY TO THE JOB WORKER ON THE GROUNDS OF NON EXISTENCE O F A JOB WORKER M/S. GOENKA INDUSTRIES. IT HAS BEEN ARGUED THAT THE LD. A.O.'S FINDINGS ITSELF ARE CONTRADICTORY AND THE LD. A.O. DISALLOWED THE WHOLE AMOUNT ON THE GRO UNDS OF GENUINENESS OF EXPENDITURE. THE LD. A.R CONTRADICTED THE FINDINGS OF THE AO IN HIS ORDER WHERE HE SAYS THAT WHILE GOING THROUGH THE BILLS SUBMITTED B Y THE ASSESSEE, HE, THE AO HAD FOUND THAT THE ADDRESS WAS STRUCK OFF BY DARK INK O N THE COPIES OF BILLS, AS ALSO THAT NO ORIGINAL BILLS WERE PRODUCED BEFORE THE LD. A.O. IT WAS STATED BY THE LD.A.R THAT ALL COPIES OF BILLS WERE SUBMITTED BY THE APPELLANT BEF ORE THE AO. IT WAS REITERATED BY THE LD A.R THAT THE ASSESSEE IS AN EXPORT HOUSE HAVING ITS FACTORY AT PEENYA INDUSTRIAL AREA, BANGALORE AND ITS REGISTERED OFFICE IS AT KOL KATA, AND THAT AS RECORDS WERE MAINTAINED AT THE FACTORY LEVEL, THE APPELLANT-ASSE SSEE HAD REQUESTED THE LD AO. TO GRANT SOME TIMES WHICH WAS TURNED DOWN BY THE L.D . AO. IT WAS STATED BY THE L.D A.R THAT THE JOB WORKER IS A GENUINE PARTY AND THAT IT: WAS NOT A NON-EXISTENT PARTY, AND IN SUPPORT OF SUCH CONTENTION REGARDING GENUINENESS, THE APPELLANT/ L.D A.R HAS SUBMITTED CERTAIN DOCUMENTS IN AN ANNEXURE, THESE ARE NO.1 : CERTIFICATE OF REGISTRATION NO. 3512648.6 & 35176489 ISSUED BY GO VERN LENT OR KARNATAKA COMMERCIAL TAXES CONTAINING THE ADDRESS OF THE JOB WORKER'S WORKS AT BANGALORE, NO.2 .: A COPY OF SALES TAX ASSESSMENT ORDER DATED :3 .6 .1999 WHICH STATES THAT THE CONCERN IS DOING JOB WORK OF STITCHING FOR KRM INT ERNATIONAL AND BATA INDIA. NO.3 : A COPY OF AUDITED FINAL ACCOUNTS OF THE M/S GOENKA IN DUSTRIES ALONG WITH COMPUTATION OF TOTAL INCOME. AND NO.4 : ACKNOWLEDGEMENT OF INCOME TAX RETURN IN FORM 2, F ILED BY THE JOB WORKER. 3. IT IS SEEN THAT THE PREDECESSOR LD. CIT(APPEALS ) HAS FOUND THESE DOCUMENTS ADMISSIBLE ON ACCOUNT OF THEIR IMPORTANCE AS RELEVA NT EVIDENCE, AS ALSO THAT THE APPELLANT WAS PREVENTED BY SUFFICIENT CAUSE IN FILI NG THEM BEFORE THE AO, AND HAD CALLED FOR A RE LAND REPORT FROM T E AO BY HIS LETT ER DATED 09.12.2003 ISSUED IN F.NO. CIT(A)-XI,. KOL./REMAND REPORT: / 2002.-03. A REMIN DER IN THE MATTER HAD ALSO BEEN ISSUED TO THE AO ON 23.11.2005. FROM THE RECORDS, I T IS SEEN THAT THE AO HAD REQUESTED THE APPELLATE AUTHORITY TO ALLOW MORE TIM E, BY HIS LETTER DATED 07.06.2006 ISSUED FROM IN F.NO. ACIT/CIR.11/REMAND REPORT/KOL/ 2005-06/833. THE REMAND REPORT WAS FINALLY NOT SENT BY THE AO AND AS SUCH T HERE IS NO OPTION BUT TO DECIDE THE MATTER ON THE BASIS OF THE RECORDS AND EVIDENCE/ DO CUMENTS AVAILABLE ON RECORD. BE THAT AS IT MAY, IT IS SEEN THAT THE AO COULD NOT HA VE SIMPLY BRUSHED ASIDE THE CLAIM OF PAYMENTS HAVING BEEN MADE BY HE APPELLANT OIL ACCOU NT: OF THE JOB-WORKS DONE, ON THE SOLE REASON THAT THE LETTER SENT TO THE PARTY F OR VERIFICATION HAS COME BACK UNSERVED. 4. FROM THE DOCUMENTS SUBMITTED, IT IS OBSERVED THA T THE PARTY IN QUESTION, SHRI ARUN GOENKA C/O MS GOENKA INDUSTRIES, HAS A CLEAR ADDRES S FOR COMMUNICATION. IT IS ALSO SEEN THAT THE JOB-WORKER HAS A PAN (ACJPG2257L) AND A COPY OF THE PAN CARD HAS ITA NO.1311-1314/KOL/2016 A.YS 98-99, 0 3-04 TO 05-06 JCIT(OSD) CIR-11(1), KOL. VS. M/S KRM INTE RNATIONAL LTD. PAGE 4 ALSO BEEN SUBMITTED. FOR THE A.Y 1970-99, TILE SAI D SHRI GOENKA HAS ALSO TILED HIS RETURN WITH THE ACIT,CIRCLE-1, MANGALORE, KARNATAKA ON 06.11.98, AND THE SAID RETURN BEARS THE STAMP OF THAT OFFICE. THE BALANCE SHEET A ND P&L ACCOUNT ARE ALSO AVAILABLE, AND THE APPELLANT IS SHOWN AS A SUNDRY C REDITOR IN THE BOOKS OF THE SAID PARTY. IT IS SEEN THAT THE NATURE OF BUSINESS HAS B EEN DISCLOSED AS ' MANUFACTURING OF SHOE UPPERS ', WHICH FITS THE JOB-WORKERS DESCRIPTION. THE COPY OF THE INTIMATION U/S 143(1) FOR TILE SAID YEAR ALSO SUGGESTS THAT TH E PARTY IS EXISTENT. IT IS ALSO SEEN THAT THE TDS WAS ALSO MADE BY THE ASSESSEE-APPELLANT M/S KRM INTERNATIONAL LTD, AS THE SAID JOB-WORKER HAS CLAIMED SPECIFIC TDS AMOUNTS AG AINST THE SAID ASSESSEE (THE DEDUCTOR) OF RS.1,34,210/- AS EVIDENCED BY THE RETU RN MED BY THE JOB WORKER. THE CERTIFICATE OF REGISTRATION UNDER THE BANGALLORE CO MMERCIAL TAX AUTHORITY ALSO SUGGESTS THAT HE WAS REGISTERED UNDER THAT AUTHORIT Y SINCE 02.12.1992, AND THE CERTIFICATE HAS BEEN GIVEN ON 12.01.1996. MOREOVER TILE APPELLANT HAS BEEN ABLE TO PRODUCE SEVERAL ORDER OF ASSESSMENT OF THE COMMERCI AL TAX AUTHORITY, BANGALORE IN THE CASE OF THE CONCERN M/D GOENKA INDUSTRIES, WHER E IT HAS BEEN CLEARLY MENTIONED THAT SHRI ARUN GOENKA IS THE PROPRIETOR. AS PER TIL E ASSESSMENT ORDER 30,06.1999 FOR THE YEAR 1997-98, THE INDIVIDUAL HAS BEEN MENTIONED TO DO JOB WORKS OF SHOE UPPERS. THE SAID ASSESSMENT ORDER ALSO MENTIONS THAT 'IT IS EVIDENT FROM THE DOCUMENTS PRODUCED THAT THE ASSESSEE HAS DONE JOB WORK: OF ST ITCHING SHOE UPPER FOR M/D KRM INTERNATIONAL LTD. BANGALORE AND BATA INDIA LTD. FO R SUCH WORK THE ASSESSEE HAS RECEIVED LEATHER AND OTHER RAW MATERIALS BY THE PAR TIES THEMSELVES FOR WHOM THE JOB WORK IS DONE. HE HAS RECEIVED JOB WORK CHARGES OF R S. 68,23,705.60 TOWARDS STITCHING OF SHOE UPPERS. INVOICE COPIES OF THE JOB WORK CHARGES RECEIVED ARE FILED. SOME ARE VERIFIED. THE CLAIM OF EXEMPTION IS IN ORD ER AND HENCE ALLOWED. ' IN THE FACE OF THE CLEAR AND UNEQUIVOCAL EVIDENCE F ILED, I AM OF THE CONSIDERED VIEW THAT THE APPELLANT HAS BEEN ABLE TO SUCCESSFULLY BRING O N EVIDENCE THE EXISTENCE OF THE PARTY WHO HAS BEEN PAID JOB-WORK CHARGES. THERE COULD BE A DISTINCT POSSIBILITY THAT THE ADDRESS OF THE JOB WORKER MAY HAVE CHANGED OR HE MA Y HAVE SHIFTED, BUT THE AO OUGHT TO HAVE ALLOWED THE APPELLANT SUFFICIENT OPPORTUNIT Y TO SUBMIT THE NECESSARY DOCUMENTS BEFORE CONCLUDING THIN THE MANNER THAT HE DID. IN D ENYING HIM SUCH AN OPPORTUNITY, THERE APPEARS TO BE A CLEAR VIOLATION OF THE PRINCIPLES O F NATURAL JUSTICE. WHEN THE MATTER WAS REMANDED TO THE AO ALSO, OTHER THAN SEEKING TIME, T HERE APPEARS TO HAVE BEEN NO OTHER EFFORT MADE TO ASCERTAIN THE WHEREABOUTS OF THE PAR TY, OR OFFER THE COMMENTS AND FINDINGS ON THE REMAND PROCEEDINGS. ACCORDINGLY, TH E APPELLATE PROCEEDINGS HAVE TO BE BROUGHT TO FRUITION SOMETIME. IN ANY CASE, I FIND T HAT THE APPELLANT HAS SUBMITTED ADEQUATE POSITIVE EVIDENCE WHICH HAS NOT BEEN COUNT ERED BY THE AO. IN THE GIVEN SET OF FACTS AND CIRCUMSTANCES, I FIND THAT THE ADDITION M ADE BY THE AO CANNOT BE SUSTAINED, AND THEREFORE I DIRECT THE SAME TO BE DELETED. 4. WE HAVE GIVEN OUR THOUGHTFUL CONSIDERATION TO RI VAL CONTENTIONS. LEARNED DEPARTMENTAL REPRESENTATIVE VEHEMENTLY PLEA DS DURING THE COURSE OF HEARING THAT CIT(A) HAS MADE PLACED RELIANCE ON ASS ESSEES ADDITIONAL EVIDENCE WITHOUT CALLING FOR REMAND REPORT FROM THE ASSESSING OFFICERS END. WE FIND NO MERIT REVENUES INSTANT ARGUMENT AS IT H AS COME ON RECORD IN CIT(A)S ABOVE EXTRACTED FINDINGS IN PARA-3 THAT HE HAD DULY CALLED FOR REMAND ITA NO.1311-1314/KOL/2016 A.YS 98-99, 0 3-04 TO 05-06 JCIT(OSD) CIR-11(1), KOL. VS. M/S KRM INTE RNATIONAL LTD. PAGE 5 REPORT VIDE LETTER DATED 09.12.2003 WHICH NEVER CAM E FROM THE ASSESSING OFFICERS END DESPITE VARIOUS OPPORTUNITIES / REMIN DERS. THIS IS WHAT MADE THE CIT(A) TO PROCEED FURTHER IN THE COURSE OF LOWER AP PELLATE PROCEEDINGS. COMING TO MERITS, WE NOTICE THAT THE ASSESSEE HAS P LACED ON RECORD ALL THE RELEVANT DETAILS OF ITS PAYEE M/S GOENKA INDUSTRIES I.E. PAN, ASSESSMENT(S), BALANCE-SHEET, PROFIT & LOSS ACCOUNT AND ALL OTHER RELEVANT PARTICULARS. THE REVENUE IS FAIR ENOUGH IN NOT DISPUTING THE CORRECT NESS OF THE SAID DETAILS ON MERITS IN THE COURSE OF HEARING. WE ACCORDINGLY CON CLUDE THAT CIT(A) HAS RIGHTLY DELETED THE IMPUGNED FABRICATION CHARGE DIS ALLOWANCE MADE IN THE COURSE OF ASSESSMENT. THE REVENUES INSTANT FIRST T ECHNICAL GROUND PLACING VIOLATION OF RULE 46A OF THE INCOME TAX RULES FAILS ACCORDINGLY. 5. NEXT COMES THE REVENUES SECOND SUBSTANTIVE GROU ND PLEADING THAT CIT(A) HAS ERRED IN DELETING CAPITAL EXPENDITURE OF 2,05,000/- INCURRED BY THE ASSESSEE ON ACCOUNT OF CONSTRUCTION OF A NEW SCEPT IC TANK. THE CIT(A)S FINDINGS TO THIS EFFECT READS AS FOLLOWS:- DECISION: 1. I HAVE EXAMINED THE ACTION OF THE AO IS DISALLOW ING AN EXPENDITURE OF RS.2,05,000/- TREATING SUCH AN EXPENDITURE AS A CAP ITAL EXPENDITURE AND THEREFORE NOT AN ALLOWABLE EXPENSE. THE AO NOTICED THAT TILE APPE LLANT HAD SUBMITTED CERTAIN COPIES OF BILLS FOR REPAIRS EXCEEDING RS.25,000/- E ACH, AND THAT SOME OF THE BILLS RELATED TO RECONSTRUCTION OF A COLLAPSED BOUNDARY W ALL. THE AO FURTHER OBSERVED THAT THE ASSESSEE HAS CLAIMED EXPENDITURE OF RS.2,05,000 /- FOR MAKING A NEW SEPTIC TANK AND RELATED WORK, ALSO AS REPAIRS, THE AO RECKONED THAT AS THE EXPENDITURE IS FOR CONSTRUCTION OF A NEW ITEM ALTOGETHER, THE SAME IS CONSIDERED AS CAPITAL IN NATURE. THE AO HOWEVER ALLOWED DEPRECIATION @ 10% ON THE SA ID EXPENSE. 2. ARGUING AGAINST SUCH ACTION BY THE AO, THE APPE LLANT/ LD A.R HAS SUBMITTED THAT THE LD, A.O. HAS DISALLOWED RS.2,00,000/- OUT OF' E XPENDITURE OF' RS. 2,,05,000/- TOWARDS SEPTIC TANK AND RELATED WORK STATING THAT T HE EXPENDITURE IS FOR CONSTRUCTION OF NEW ITEM ALTOGETHER AND THE SAME IS CONSIDERED A S A CAPITAL NATURE. FURTHER HE STATED THAT DEPRECIATION @10% IS HOWEVER ALLOWABLE ON THE ABOVE AMOUNT. IT WAS SUBMITTED THAT THE LD. A.O. ERRED IN TREATING THE A BOVE REVENUE EXPENDITURE AS CAPITAL IN NATURE WITHOUT GOING IN DEPTH OF THE MATTER, AND THAT THE IMPUGNED EXPENDITURE WAS OF ' REVENUE IN NATURE ', IN AS MUCH AS IT WAS RELATING TO THE REPLACEMENT OF THE OLD AND UNSERVICEABLE TANK WITH CONTRIBUTION TO MAI NTAIN THE OUTPUT OF THE WHOLE PLANT. IT WAS CONTENDED THAT SUCH EXPENSES ARE OF RECURRIN G NATURE. IT WAS ARGUED BY THE LD.A.R THAT IT HAS BEEN HELD BY THE HON'BLE SUPREME COURT THAT IN DECIDING WHETHER A PARTICULAR EXPENDITURE IS CAPITAL OR REVENUE IN NAT URE, WHAT THE COURTS HAVE TO SEE IS WHETHER THE EXPENDITURE IN QUESTION WAS INCURRED TO CREATE ANY NEW ASSET OR WAS INCURRED FOR MAINTAINING THE BUSINESS OF THE COMPAN Y, AND THAT IF IT WAS THE FORMER, IT IS CAPITAL EXPENDITURE, AND THAT IF IT WAS THE LATT ER, IT IS REVENUE EXPENDITURE. THE LD A.R ALSO RELIED UPON THE CASES OF DALMIA JAIN & CO. LTD. VS CIT(1971) 81 ITR 754 (SC), CIT VS. KARNAL CO-OPERATIVE SUGAR MILLS LTD. 243 ITR2 (SC). IT WAS FURTHER ITA NO.1311-1314/KOL/2016 A.YS 98-99, 0 3-04 TO 05-06 JCIT(OSD) CIR-11(1), KOL. VS. M/S KRM INTE RNATIONAL LTD. PAGE 6 PLEADED BY THE LD. A.R THAT IT WAS ALSO HELD IN THE CASE OF CIT VS. STEEL COMPLEX LTD. (1999) 238 ITR 1054 (KER) THAT COST OF INSTALL ATION OF WATER TREATMENT PLANT AND FUME EXTRACTION PLANT IS A REVENUE EXPENDITURE AS I T DOES NOT INCREASE THE VOLUME OF PRODUCTIVE CAPACITY THOUGH SUCH INSTALLATION RESULT ED IN IMPROVEMENT OF OPERATING OF EXISTING SYSTEMS WITH GREATER EFFICIENCY AND PROFIT ABILITY AND AVOIDING HEALTH HAZARDS. THE LD .A.R ALSO RELIED UPON THE CASE OF CIT VS CO- OPERATIVE SUGAR LTD. (1998) 99 TAXMAN 93 (99) KER, WHEREIN IT WAS HELD THAT EXPEND ITURE INCURRED ON PURCHASING OF NEW MACHINERY TO ENSURE SOUND FUNCTIONING OF THE SU GAR MILL AND TO REPLACE THE OLD ONES IS OF REVENUE NATURE BECAUSE ALL MACHINERY PUT TOGETHER COMPLETE THE SUGAR PLANT. IT WAS ALSO FURTHER POINTED OUT THAT THE LD. A.O. HAS NOT EVEN ALLOWED DEPRECIATION OF THE ABOVE AS DISCUSSED IN PARA 5 OF PAGE 3 OF HIS ORDER. 3. I HAVE EXAMINED THE ISSUE FROM BOTH SIDES, AND F IND THAT THE AO HAS NOT PROVIDED ADEQUATE OPPORTUNITY TO THE APPELLANT-ASSESSEE TO E XPLAIN THE NATURE OF THE EXPENSES INCURRED. WHILE THE AO HAS CONSIDERED THE EXPENDITU RE WAS TOWARDS CREATING A NEW ASSET, THE UNDISPUTED FACT EMERGES THAT THE SAME WA S SPENT TOWARDS THE SEPTIC TANK, AN EXISTING ASSET. IT IS SEEN THAT THE APPELLANT IS A GOING CONCERN, AND THE EXPENDITURE WAS TOWARDS THE REPAIR I RENOVATION OF A SEPTIC TAN K AND NOT TOWARDS THE CREATION OF A NEW SEPTIC TANK. TO ME IT APPEARS THAT THERE CAN BE NO DOUBT THAT THE SEPTIC TANK REPAIR AND RENOVATION WOULD BE A RECURRING ITEM OF EXPENDITURE, AND THE SAME OUGHT TO HAVE BEEN CONSIDERED BY THE AO. IN THE INSTANT C ASE, I FIND THAT THE ASSESSEE MADE CERTAIN RENOVATIONS TO A SEPTIC TANK IN THE FA CTORY PREMISES AND HAD HAD CARRIED OUT CERTAIN RENOVATIONS IN ORDER TO ENSURE THAT THE BUSINESS WAS CARRIED OUT EFFECTIVELY AND SMOOTHLY, AND TO ENSURE SUCH EFFECT IVENESS, FOR WHICH CERTAIN REPAIRS WERE CARRIED OUT BY THE ASSESSEE IN THE SEPTIC TANK . THE QUANTUM OF EXPENDITURE IS CERTAINLY NOT RELEVANT IN DETERMINING THE ISSUE IN QUESTION, AND THE AO HAS ALSO NOT OBSERVED ABOUT THE SAME. THE EXPENDITURE INCURRED B Y THE ASSESSEE WAS NOT FOR THE PURPOSE OF BRINGING INTO EXISTENCE ANY NEW ASSET OR ADVANTAGE, BUT INCURRED FOR RUNNING THE BUSINESS EFFECTIVELY AND IN SMOOTH MANN ER. IT COULD NOT, THEREFORE BE SAID THAT THE EXPENDITURE WAS INCURRED FOR THE PURPOSE O F ACQUIRING AND APPRECIATING CAPITAL ASSETS . HAVING PERUSED THE FACTUAL MATRIX RELATING TO THIS ADDITION, AS WELL AS THE JUDICIAL AS PRECEDENTS SUBMITTED BY THE APPELLANT, I HOLD THAT EXPENDITURE CLAIMED TOWARDS THE SEPTIC TANK WAS OF REVENUE IN NATURE, AND THEREFORE THE ADDITIONS MADE BY THE AO CANNOT BE SUSTAINED, AND IS DELETED ACCORDINGLY. 6. WE HAVE GIVEN OUR THOUGHTFUL CONSIDERATION TO RI VAL CONTENTIONS. THE REVENUES ONLY ARGUMENTS DURING THE COURSE OF HEARI NG IS THAT ASSESSEE HAD CONSTRUCTED A NEW SEPTIC TANK WHICH AMOUNTS TO CAPI TAL EXPENDITURE THAN A REVENUE HEAD ITEM. WE FIND NO SUBSTANCE IN THE INST ANT ARGUMENT AS WELL. THE ASSESSEE HAS PROVED BY WAY OF ITS DETAILS ON RECORD THAT IT HAD ONLY CARRIED OUT RENOVATION OF AN OLD SEPTIC TANK THAN RAISING A NEW ONE. THE CIT(A)S FINDINGS UNDER CHALLENGE ARE UPHELD THEREFORE. 7. THE REVENUES FOURTH & FIFTH SUBSTANTIVE GROUNDS SEEK TO REVIVE ASSESSING OFFICERS ACTION DISALLOWANCE(S) / ADDITI ON(S) AMOUNTS OF 6,30,109/- AND 16,96,559/- ON ACCOUNT OF INTEREST FREE LOANS GIV EN TO SISTER CONCERN ITA NO.1311-1314/KOL/2016 A.YS 98-99, 0 3-04 TO 05-06 JCIT(OSD) CIR-11(1), KOL. VS. M/S KRM INTE RNATIONAL LTD. PAGE 7 M/S BIPIN TEXTILE AND M/S KRM GLOBAL FINANCE. SUFFI CE TO SAY, WE NOTICE THAT BOTH THESE TWO ENTITIES ARE ASSESSEES SISTER CONCE RNS. THE VERY ISSUE APPEARS TO HAVE COME UP BEFORE THE TRIBUNAL IN PREC EDING ASSESSMENT YEAR WHICH ULTIMATELY STOOD DECIDED IN TAXPAYERS FAVOUR . THE CIT(A) HAS FOLLOWED THE VERY REASONING BY ADOPTING JUDICIAL CONSISTENCY . MR. CHOUDHURY FAILS TO DISPUTE THAT REVENUES FOURTH AND FIFTH SUBSTANTIVE GROUNDS AS BOTH ISSUES PLEADED IN THE INSTANT APPEAL NOWHERE PIN-POINT ANY SPECIFIC DISTINGUISHING FEATURE IN THE IMPUGNED ASSESSMENT YEAR. WE THEREFO RE CONCLUDE THAT THE CIT(A) HAS RIGHTLY FOLLOWED THIS TRIBUNALS ORDER I N EARLIER ASSESSMENT YEAR HAVING ATTAINED FINALITY. THE REVENUES FOURTH AND FIFTY SUBSTANTIVE GROUNDS AS WELL AS THE INSTANT MAIN APPEAL ITA NO.1311/KOL/2016 ARE REJECTED. 8. NEXT COME REVENUES SECOND APPEAL ITA NO.1312/KO L/2016 FOR ASSESSMENT YEAR2003-04. ITS ONLY SUBSTANTIVE GROUN D PLEADS THAT CIT(A) HAS ERRED IN LAW AND ON FACTS IN ASSESSEES FOREX BAD D EBTS OF 97,58,137/- WHICH STOOD DISALLOWED BY THE ASSESSING OFFICER DURING TH E COURSE OF ASSESSMENT. THE CIT(A)S DETAILED DISCUSSION TO THIS EFFECT REA DS AS FOLLOWS:- DECISION: 1. I HAVE CAREFULLY PERUSED THE ACTION OF THE AO IN DISALLOWING THE AMOUNT OF RS.97,58,137/- CLAIMED BY THE APPELLANT-ASSESSEE UN DER HEAD BAD & DOUBTFUL DEBTS/ADVANCE/SUNDRY WRITTEN OFF. THE AO NOTICED T HAT THE APPELLANT-ASSESSEE DURING THE YEAR HAD WRITTEN OFF BAD AND DOUBTFUL DE BTS, ADVANCES AND SUNDRY WRITTEN OFF AMOUNTING TO RS.97,58,137/- IN THE P&L A/C. DURING THE COURSE OF HEARING THE AO REQUIRED THE ASSESSEE TO PRODUCE THE DETAILS AND ALSO EVIDENCE THAT THESE AMOUNTS WERE EARLIER CHARGED TO PROFIT O F THE ASSESSEE COMPANY. ACCORDING TO THE AO, NO DETAILS OF THESE AMOUNTS WR ITTEN OFF COULD BE PRODUCED AT THE HEARING STAGE. THEREFORE, THE AO DISALLOWED THE SE AMOUNTS FOR WANT OF SATISFACTORY EXPLANATION, RELATING TO EXPENSES ETC. OF EARLIER YEARS. 2. DURING THE STAGE OF APPEAL, THE ASSESSEE-APPELLA NT /LD AR HAS SUBMITTED THAT THE LD. AO HAS DISALLOWED RS.97,58,137/- UNDER THE HEAD BAD& DOUBTFUL DEBTS/ADVANCES/SUNDRIES WRITTEN OFF DEBITED TO PROF IT & LOSS ACCOUNT AS PER SCHEDULE 15 PAGE NO.17 OF THE ANNUAL REPORT ON THE GROUND THAT FULL DETAILS AND EVIDENCE THAT THESE AMOUNT WERE EARLIER CHARGED TO PROFIT OF THE COMPANY WERE NOT FURNISHED AT THE HEARING STAG. THE BREAKUP OF T HE AMOUNTS WERE SUBMITTED AS UNDER: 01 BAD DEBTS WRITTEN OFF 62,35,052.51 02 CLAIMS WRITTEN OFF 2,54,506.00 03 TELEPHONE DEPOSIT WRITTEN OFF 12,000.00 04 ADVANCES OF PARTIES WRITTEN OFF 9,67,896.00 05 EXPS. OF PRAGUE OFFICE 20,53,429.49 06 ADVANCE TO TRAVEL HOME 2,28,252.70 07 TAJ COUPON 7,000.00 97,58,137.00 ITA NO.1311-1314/KOL/2016 A.YS 98-99, 0 3-04 TO 05-06 JCIT(OSD) CIR-11(1), KOL. VS. M/S KRM INTE RNATIONAL LTD. PAGE 8 3. ACCORDING THE LD AR, THE ASSESSEE HAS FURNISHED SUFFICIENT DETAIL OF BAD & DOUBTFUL DEBTS/ADVANCES/SUNDRIES WRITTEN OFF DURING THE YEAR UNDER CONSIDERATION ALONG WITH RBI PERMISSION TO BANK TO WRITE OFF NON-REALIZATION OF EXPORT PROCEEDS RELATING TO EXPORT SALES AND CLAIMS ADMITTED BY ECGC, BEFORE THE AO, AND A COPY OF THE SAME WAS ALSO SUBMITTED D URING THE APPEAL STAGE. IT HAS ALSO BEEN CONTENDED BY THE LD AR THAT ALL THESE DEBTS WRITTEN OFF DURING THE YEAR WERE DULY CHARGED TO PROFIT OF THE ASSESSEE CO MPANY IN THE EARLIER YEARS AND IS THEREFORE AN ALLOWABLE EXPENDITURE IN THE AY 200 3-04. IT WAS ARGUED THAT AS PARSEC.36(1)(VII) OF THE INCOME TAX ACT 1961 AMOUNT OF ANY DEBT OR PART THEREOF IS ALLOWABLE AS DEDUCTION IF (I) THE DEBT HAS BEEN TAKEN INTO ACCOUNT IN COMPUTING THE INCOME OF THE ASSESSEE OF THAT PREVIOUS YEAR OR OF AN EARLIER PREVIOUS YEAR, AND (II) IT HAS BEEN WRITTEN OFF AS IRRECOVERABLE IN THE AC COUNTS OF THE ASSESSEE FOR THAT PREVIOUS YEAR ARE SATISFIED. ACCORDING TO THE LD. AR THE DETAILS FURNISHED SATISFY BOTH THE ABOVE CONDITIONS AND AS SUCH THE D EDUCTION OF RS.62,35,052/- & RS.2,54,506/- RELATING TO DEBTS & CLAIMS WRITTEN OFF IS ALLOWABL E EXPENDITURES. IT WAS FURTHER SUBTITLED BY THE LD. AR THAT THE EXPENS ES RELATING TO ITEM 3,4,6,7 ARE ADVANCES WRITTEN OF DURING AY 2003-04, AND THAT THESE ADVANCES WERE MA DE IN THE COURSE OF THE BUSINESS AND IS NOT RECOVERABLE F ROM THE RESPECTIVE PARTIES. IT WAS SUBMITTED THAT THESE ADVANCES ARE BUSINESS EXPE NSES AND FOR THE BENEFIT OF THE BUSINESS OF THE ASSESSEE, AND THEREFORE THE WRI TE-OFF WAS GENUINE. IN SUPPORT OF IT CLAIMS THE APPELLANT/LD AR HAS ALSO SUBMITTED THE COPY OF THE ANNUAL REPORT, THE DETAILS OF THE BAD AND DOUBTFUL DEBTS / ADVANCES / SUNDRY WRITTEN OFF DETAILS. THE LETTER OF THE RBI AND A COPY OF THE LE TTER OF THE ECGC DATED 28.08.2002, REGARDING THE CLAIM FIELD UNDER THE REL EVANT POLICY NO.73543 IN RESPECT OF SHIPMENT TO M/S AGIOKAS, REPUBLIC OF KHA RZAKISTAN. IT IS SEEN THAT THE APPELLANT HAS SUBMITTED THE ENTIRE LIST OF THE BAD DEBTS IN THE SCHEDULE AMOUNTING TO RS.97,58,137/-. THE RELEVANT CLAIM FILED BEFORE THE EXPORT CREDIT GUARANTEE CORPORATION OF INDIA IN RESPECT OF THE CLAIMS MADE BY THE APPELLANT IS ALSO AVAILABLE. THE LETTER IS BY THE SAID AUTHORITY, WHI CH IS AN UNDERTAKING OF THE GOVERNMENT OF INDIA TO PROTECT THE INDIAN EXPORTER AGAINST UNFORESEEN LOSSES, WHICH MAY ARISE DUE TO FAILURE OF THE BUYER, BANK O R PROBLEMS FACED BY THE COUNTRY OF THE BUYER BY PROVIDING COST EFFECTIVE CR EDIT INSURANCE COVERS IN THE FORM OF POLICY, FACTORING AND INVESTMENT INSURANCE SERVICES COMPARABLE TO SIMILAR COVERS AVAILABLE TO EXPORTERS IN OTHER COUNTRIES. F ROM SUCH LETTER IT IS QUITE EVIDENT THAT THERE HAVE BEEN EXPORTS AGAINST SPECIF IED SHIPMENTS AND THIS VALUE OF PAYMENTS HAD NOT BEEN RECEIVED. IT IS SEEN THAT THE APPELLANT HAS AFTER RECEIVING THE CLAIMS FOR CERTAIN AMOUNTS FROM THE S AME TAKEN THESE AMOUNTS INTO COGNIZANCE WHILE MAKING THE WRITE-OFFS. THE AMOUNTS RECEIVED FROM THE ECGCI HAVE BEEN ACCOUNTED FOR. IT IS ALSO SEEN THAT THE A PPELLANT HAS SUBMITTED THE LEDGE OF THE BAD AND DOUBTFUL DEBTS AND ADVANCES WR ITTEN OFF FOR THE PERIOD 01.04.2002 TO 31.03.2003. 4. I HAVE EXAMINED THE MATTER RELATING TO THE BAD D EBTS. THE ENTIRE DETAILS HAVE BEEN SUBMITTED BY THE ASSESSEE-APPELLANT BEFORE THE AO ALSO, AND THESE ARE AS UNDER:- DETAILS OF BADD & DOUBTFUL DEBTS/ADVANCES WRITTEN OFF DURING THE YEAR 2002-2003 (ASST. YEAR 2003-2004) (A) BAD DEBTS WRITTEEN-OFF 01. SALE INVOIC E TOTAL AMOUNT NO. DATE AMOUNT 01.WHEELER LEATHER CORPORATION 10 23.04.98 11541.50 80 03.07.98 628105.00 ITA NO.1311-1314/KOL/2016 A.YS 98-99, 0 3-04 TO 05-06 JCIT(OSD) CIR-11(1), KOL. VS. M/S KRM INTE RNATIONAL LTD. PAGE 9 101 20.07.98 143746.00 02 WEB TRADING D/N 27.07.98 10133.00 793525.50 227 31.10.00 12259.00 12259.00 03 TARUN EXPORT 115 16.07.00 1103.00 1003.00 04 SISODIA DESIGNERS & ADVERTISERS 55 88 08.07.98 1381.00 81851.00 05 SMY ENTERPRISES 202 19.10.98 13592.00 13592.00 06ROGER EXPORTS 325 24.02.01 72313.20 72313.20 07 PAN ELECTRONICS (INDIA) LTD. E25 E61 14.06.99 01.09.99 1550.00 10850.00 12400.00 08 MITAL TRADE & INDUSTRIES E46 04.03.02 8951.00 8951 .00 09 LE-BOOTIQUE 02 05 04.04.00 22.04.00 12947.00 12711.00 25858.00 10. K.K. INTERNATIONAL LTD 340 346 348 488 13.10.99 15.10.99 23.10.99 03.03.00 23997.00 127625.00 64265.00 47865.00 263752.00 11.KAVIS FASHION (P) LTD 47 06.09.01 4047.00 4047.00 12 KALANADY TANNERIES PVT. LTD. 154 12.08.00 59024.75 59024.75 13 JRD EXPORTS 324 326 24.01.01 27.01.01 6432.00 1358.00 7790.00 14. HITS EXPORTS 1060.00 2060.00 15. HINDUSTAN LEAVER LTD. JW29 JW46 JW58 28 29.07.99 18.08.99 30.08.99 23.02.98 2160.00 2082.00 3946.50 19068.40 27256.90 16 N ABDUL WAZID 286 05.01.01 7243.00 7243.00 17 ELECTROMICA COMPONENTS` 164 19.12.96 4310.00 4310 .00 18 BATA INDIA LTD JW15 26.05.98 39822.50 39822.50 19 ANUSHA INTERNATIONAL LTD 122 123 124 126 127 129 130 133 134 135 138 139 140 141 159 160 161 168 178 196 197 198 504 22.06.99 22.06.99 22.06.99 23.06.99 23.06.99 23.06.99 23.06.99 23.06.99 23.06.99 23.06.99 24.0699 24.06.99 25.06.99 25.06.99 30.06.99 30.06.99 30.06.99 30.06.99 16.07.99 30.06.99 30.06.99 30.06.99 22.03.00 40215.66 11283.00 10111.00 31792.00 4205.00 29383.00 4190.00 91975.00 20318.00 2325.00 18530.00 31671.00 15635.00 130522.00 14038.00 27787.00 17831.00 18736.00 71500.00 11689.00 2780.00 3307.00 36582.00 646324.66 20 RUGGERI, ITALAY MISC. 01 03.10.97 2824.00 282 4.00 21 AGIOKAZ 100 101 102 103 104 132 133 170 05.11.98 05.11.98 05.11.98 05.11.98 05.11.98 17.12.98 17.12.98 01.02.99 1380834.00 1380834.00 1380834.00 1380834.00 1528780.00 1385748.00 1385748.00 1885104.00 11708716.00 CLAIMS LODGED WITH ECGC DUE TO NON-PAYMENT AND RECEIVED (-) 7610666.00 4098050.00 22 CALZA 2 ZETA, ITALY 51995.00 ITA NO.1311-1314/KOL/2016 A.YS 98-99, 0 3-04 TO 05-06 JCIT(OSD) CIR-11(1), KOL. VS. M/S KRM INTE RNATIONAL LTD. PAGE 10 (SHORT PAYMENT ADJUSTED) TOTAL 6235052.51 (B) CLAIMS WRITTENI-OFF 254506.00 OUT OF TOTAL CLAIM FOR RS.309010 LODGED ON THE NEW INDIA ASSURANCE CO. AGAINST THE CHEMICAL (IMPORTED FROM M/ S VETAL CHEM ,ITALY) DAMAGED AT MADRAS PORT, ONLY RS.54504 RECEIVED, HENCE BALANCE WRITTEN-OFF. (C) TELEPHONE DEPOSIT WRITTEN-OFF 12000.00 OUT OF DEPOSIT FOR RS.340,000 UNDER OYT SCHEME WITH TELEPHONE DEPARTMENT ONLY RS.15,555 INCLU DING INTEREST FOR RS.8 AFTER ADJUSTMENT OF RS.2453 TOWARDS SAFE CUSTODY RENTAL CHARGES WHICH DEBITED TO PRIOR PERIOD EXPENSES AND BALANCE WRITTEN-OFF. (D) ADVANCES TO THE PARTIES ADVANCES ON ACCOUNT AGAINST PURCHASE OF RAW MA TERIALS/ JOB-WORK TO THE FOLLOWING PARTIES SNOT ADJUST ED. SINCE THESE ARE PENDING FOR A VERY LONG TIME, HENCE WRITTEN OFF. 1. RIDER TANNING INDUSTRIES 24724.00 2. K.ASFAQUE AHAMED 82506.00 3. SHANTA INDUSTRIES 586712.50 4. S.M.CHAN BASA 7274.00 5. AMBUR SHOES 48000.00 6. MAHAVEERE INTERNATIONAL 197505.00 7. PRIYA ENGINEERING 21175.00 967896.50 LESS: AMOUNT PAYABLE TO THE FOLLOWING PARTIES ARE PENDING FOR A VERY LONG PERIOD DUE TO SOM E DISPUTES ON ACCOUNT OF MATERIALS PURCHA SED FROM THEM 1. B.S. LEATHERS 26568 2. ASRA COMMUNICATION 16200 3. HALEEM LEATHER 1187 4. K.P. TRADERS 3162 5. M.R.ENTERPRISES 2526 6. ROYAL LEATHER 19882 7. SARDA GARMENTS 3600 8. SRI SHIVA SAKTHI LEATHERS 2901 9. WASAN & CO. 35656.01 10. MAHADEV INDUSTRIES 734 11. VIVEK FOOTWEARE PVT. LTD 2881 1118300.01 849596.49 7351155.00 (E) AMOUNT REMITTED TO PRAGUE, CZECH REPUBLIC DURING PERIOD WHEN WE WERE MAINTAIN AN OFFICE HERE. TH E EXPENDITURES FOR WHICH COULD NOT BE BOOKED EARL IER 2053429.49 (F) ADVANCES PAID TO TRAVEL HOUSE TOWARDS AIR FARE 333874.60 (G) PURCHASES TAJ COUPON FOR THE STAY OF FOREIGN CUS TOMERS BUT COULD NOT BE UTILIZED WITHIN THE PRESCRIBE D PERIOD, HENCE LAPSED 7000.00 (H) OTHERS 12677.91 TOTAL 9758137.00 5. MOREOVER, IT APPEARS THAT THE AO HAS NOT CONSIDE RED THE MATTER RELATING TO THE ITEMS OF TELEPHONE DEPOSITS WRITTEN OFF, ADVANCES T O PARTIES WRITTEN OFF, EXPENSES RELATING TO TRAVEL ADVANCES AND TAJ COUPON. THERE I S NOTHING TO DISBELIEVE THE ITA NO.1311-1314/KOL/2016 A.YS 98-99, 0 3-04 TO 05-06 JCIT(OSD) CIR-11(1), KOL. VS. M/S KRM INTE RNATIONAL LTD. PAGE 11 CONTENTION OF THE ASSESSEE THAT THESE ADVANCES HAD BEEN MADE IN THE COURSE OF THE BUSINESS, AND WERE DECIDED AS NOT BEING RECOVER ABLE FORM THE SAID PARTIES. AS SUCH I FIND THAT THEY SATISFY THE CLAIMS AND ARE ELIG9IBLE FOR BEING CLAIMED A WRITE OFF IN TERMS OF SEC 36(I)(VII) OF THE INCOME TAX ACT. IN VIEW OF THE ABOVE FINDINGS, I AM UNABLE TO CONFI RM THE FINDINGS AND DISALLOWANCE MADE BY THE AO, AND ORDER FOR DELETION OF THE SAME. THIS GROUND IS ACCORDINGLY ALLOWED, AND ADJUDICATED IN FAVOUR OF T HE APPELLANT. LEARNED DEPARTMENTAL REPRESENTATIVE STRONGLY ARGUES DURING THE COURSE OF HEARING THAT THE CIT(A) HAS ERRED IN DELETING THE I MPUGNED DISALLOWANCE AFTER ADMITTING ASSESSEES ADDITIONAL EVIDENCE IN VIOLATI ON OF RULE 46A OF THE INCOME TAX RULES, 1962. WE FIND NO SUBSTANCE IN INS TANT ARGUMENT. THE ASSESSEE HAD RELIED UPON ITS SCHEDULE-15 PAGE 17 OF THE ANNUAL REPORT ALONGWITH DETAILS OF EACH PARTYS ACCOUNTS WRITTEN OFF AND OF PROFIT AND LOSS A/C WHICH ALONGWITH FORMED PART OF ASSESSMENT RECORD BE FORE THE ASSESSING OFFICER. COUPLED WITH THIS, THE FACT ALSO REMAINS T HAT ASSESSEE HAS PROVED UNAVOIDABLE CIRCUMSTANCES COMPELLING IT TO WRITE OF F THE IMPUGNED SUMS AFTER DULY COMPLIANCE WITH THE NECESSARY PROCEDURES ALONG WITH INTIMATION / PERMISSION OBTAINED FROM THE RESERVE BANK OF INDIA ON ACCOUNT OF NON- REALIZATION OF EXPORT PROCEEDS. WE MAKE IT CLEAR TH AT THE REVENUE HAS NOT POSED ANY CHALLENGE TO THE CIT(A)S FINDINGS THAT T HE ASSESSEE HAD RECORDED A VERY SUMS AS INCOME OF THE EARLIER ASSESSMENT YEA R AND THEN CHOSE WRITE OFF THE SAME AS NOT RECOVERABLE AS STIPULATED IN SE C. 36(I)(VII) OF THE ACT. WE ACCORDINGLY CONCLUDE THAT THE CIT(A) HAS RIGHTLY DE LETED THE IMPUGNED FOAXBAD DEBTS DISALLOWANCE OF 97,58,137/-. THIS REVENUES SECOND APPEAL ITA NO.1312/KOL/2016 RAISING THE INSTANT SOLE ISSUE IS DECLINED THEREFORE. 10. NEXT COMES REVENUES THIRD AND FOURTH APPEAL(S) ITA NO.1313 & 1314/KOL/2016 RAISING FIRST AND SECOND SUBSTANTIVE GROUND SEEKING TO REVIVE BAD DEBT DISALLOWANCE OF 76,43,149 AND 97,06,971/-. BOTH PARTIES ARE FAIR ENOUGH DURING THE COURSE OF HEARING THAT THESE TWO IDENTICAL GROUNDS RAISED IN LATTER AS MANY ASSESSMENT YEAR(S) ARE COVERED IN A SSESSEES FAVOUR BY OUR FINDINGS IN PRECEDING ASSESSMENT YEAR 2003-04 (SUPR A). WE THEREFORE ADOPT JUDICIAL CONSISTENCY TO REJECT THE REVENUES SAID S UBSTANTIAL GROUNDS IN THESE TWO LATTER APPEAL(S) AS WELL. ITA NO.1311-1314/KOL/2016 A.YS 98-99, 0 3-04 TO 05-06 JCIT(OSD) CIR-11(1), KOL. VS. M/S KRM INTE RNATIONAL LTD. PAGE 12 11. WE STAY IN ITA NO.1313/KOL/2016S SECOND SUBSTA NTIVE GROUND IN ASSESSMENT YEAR 2004-05SEEKING TO REVIVE SEC. 40A(2 )(B) DISALLOWANCE OF 55,33,987/-. THE CIT(A)S DETAILED DISCUSSION DELET ING THE IMPUGNED DISALLOWANCE READS AS FOLLOWS:- 1. I HAVE EXAMINED THE ACTION OF THE AO IN DISALLO WING AN AMOUNT OF RS.SS,33,978 TO ONE OF THE JOB WORKERS OF THE ASSESSEE-COMPANY. THE AO ON NOTICING THE AMOUNT PAID REQUIRED THE APPELLANT-COMPANY TO EXPLAIN THE NATURE OF PAYMENT, DETAILS OF PAYMENT, JUSTIFICATION OF RATE PAID AND COMMERCIAL EXPEDIENCY OF THE TRANSACTION. ACCORDING TO THE AO, THE APPELLANT COMPANY SUBMITTE D NEITHER THE DETAILS NOR ANY SATISFACTORY EXPLANATION TO JUSTIFY THE TRANSACTION WITH THE JOB WORKER. THE AO HAS OPINED THAT IT IS NOT UNDERSTANDABLE WHY THE JOB WO RK CHARGES WERE MADE TO SISTER CONCERN IN WHICH ONE OF DIRECTOR OF THE COMPANY IS INTERESTED, AS IT IS HIS PROPRIETORSHIP CONCERN. THE AO RECKONED THAT IT IS REQUIRED TO BE VERIFIED WHETHER THE PAYMENT WAS MADE FOR COMMERCIAL EXPEDIENCY AND THE FAIR MARKET RATE HAS BEEN CHARGED BY THE INTERESTED PERSON. HOWEVER, AS PER T HE AO, IN THE ABSENCE OF THE COMPLETE DETAILS AS CALLED, WHICH WAS NOT SUBMITTED THE SAME REMAINS UNVERIFIED. THE AO RECKONED THAT AS THE ASSESSEE-COMPANY ITSELF HAS ITS OWN MANUFACTURING UNIT, SO WHY THE JOB WORK WAS UNDERTAKEN BY ONE OF THE INTERESTED PERSONS IN HIS INDIVIDUAL CAPACITY, REMAINS UNEXPLAINED. THE AO RE CKONED THAT IN THE ABSENCE OF ABSENCE OF DETAILS, EXPLANATION, EVIDENCE, THE AFOR ESAID PAYMENT WAS TO BE TREATED AS NOT RELATED TO ASSESSEE'S BUSINESS AND TO BE TRE ATED AS PAID OTHERWISE. ACCORDING TO THE AO, THE COMMERCIAL EXPEDIENCY OF THE TRANSAC TION AND EVIDENCE OF ACTUAL SERVICE RENDERED WAS NOT FURNISHED, THEREBY PAYMENT MADE TO MLS P.M. SINGHANIA & CO. BEING PERSON SPECIFIED U/S 40A(2)(B) AMOUNTING TO RS.55,33,978/- HAS TO BE DISALLOWED AND ADDED BACK. 2. ON THE OTHER HAND THE APPELLANT /LD A.R HAS ARGU ED THAT IN SO FAR AS THE AMOUNT OF RS.55,33,978 CLAIMED AS EXPENDITURE TO M/S P.M. SIN GHANIA & CO. IS CONCERNED, THOUGH IT IS TRUE THAT PROPRIETOR OF MI5 P.M.SINGHA NIA & CO. MR. DIIIP SINGHANIA HAPPENS TO BE ONE OF THE DIRECTORS OF THE APPELLANT COMPANY, BUT NO ACTIVE PART IS TAKEN BY MR. DILLP SINGHANIA IN THE DAY TO DAY AFFA IRS OF THE COMPANY, AS NO DIRECTOR'S REMUNERATION IS PAID TO HIM. FURTHER THE APPELLANT HAS BEEN DEALING WITH M/S P.M.SINGHANIA & CO. SINCE 1990, AND THE JOB WORKS C HARGES DULY ALLOWED IN ALL THE EARLIER YEARS. IT WAS STATED THAT SHRI DILIP SINGHA NIA HAS BECOME DIRECTOR IN THE COMPANY ONLY RECENTLY ONLY, AND THAT HOWEVER, HE HA D BEEN DOING JOB WORK SINCE PAST 15 YEARS. IT WAS STATED THAT ALL THE TRANSACTI ONS DONE BY THE COMPANY WITH THE SAID JOB-WORKER WERE AT ARM'S LENGTH ,AND THE ENTIR E JOB WORK CHARGES PAID WERE SUBJECT TO TDS AND PAYMENT MADE THROUGH BANK, AND T HEREFORE IS A GENUINE BUSINESS EXPENDITURE. IT WAS ALSO EXPLAINED THAT TH E APPELLANT-COMPANY HAS ADDED BACK THE JOB CHARGES IN ITS COMPUTATION FOR EXPENSE S NOT ALLOWED FOR NON-PAYMENT OF TDS IN THE CONCERNED YEAR, BUT ALLOWABLE IN THE YEA R OF TDS PAYMENTS LATER ON. IT WAS ALSO CLAIMED THAT SHRI DILIP SINGHANIA IS AN IN COME TAX PAYEE, AND RESPECTIVE INCOME DULY ACCOUNTED FOR BY HIM ALSO. IN THE SAID MATTER, IT IS SEEN THAT THE AO HAS INVOKED THE PROVISIONS OF SEC 40A(2)(B) TO DISALLOW THE ENTIRE CLAM OF EXPENDITURE. A BRIEF OVERVIEW OF THE RELEVANT PROVISIONS ARE AS UN DER: [EXPENSES OR PAYMENTS NOT DEDUCTIBLE IN CERTAIN CIR CUMSTANCES. 40A . (1) THE PROVISIONS OF THIS SECTION SHALL HAVE EFF ECT NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN ANY OTHER PRO VISION OF THIS ACT RELATING TO THE COMPUTATION OF INCOME UNDER THE HEAD 'PROFITS A ND GAINS OF BUSINESS OR PROFESSION'. ITA NO.1311-1314/KOL/2016 A.YS 98-99, 0 3-04 TO 05-06 JCIT(OSD) CIR-11(1), KOL. VS. M/S KRM INTE RNATIONAL LTD. PAGE 13 (2)(A) WHERE THE ASSESSEE INCURS ANY EXPENDITURE IN RESPECT OF WHICH PAYMENT HAS BEEN OR IS TO BE MADE TO ANY PERSON' RE FERRED TO IN CLAUSE (B) OF THIS SUB-SECTION, AND THE [ASSESSING} OFFICER IS OP INION THAT SUCH EXPENDITURE IS EXCESSIVE OR UNREASONABLE HAVING REGARD TO THE F AIR MARKET VALUE 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 EXPEND ITURE AS IS SO CONSIDERED BY HIM TO BE EXCESSIVE OR UNREASONABLE SHALL NOT BE ALLOWED AS DEDUCTION : . [ PROVIDED THAT NO DISALLOWANCE, ON ACCOUNT OF ANY EXPENDITUR E BEING EXCESSIVE OR UNREASONABLE HAVING REGARD TO THE FAI R 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 PERSONS REFERRED TO IN CLAUSE (A) ARE THE FOLLOWING, NAMELY :- (I) WHERE THE ASSESSEE IS AN INDIVIDUAL ANY RELAT IVE OF THE ASSESSEE; (II) WHERE THE ASSESSEE IS A COMPANY, FIRM ASSOCIATION OF PERSONS OR HINDU, ANY DIRECTO R OF THE COMPANY, UNDIVIDED FAMILY PA RTNER OF THE FIRM, OR MEMBER OF THE ASSOCIATION OR FAMILY OR ANY RELATIVE OF SUCH DIRECTOR, OR MEMBER; (III) ANY INDIVIDUAL WHO HAS A SUBSTANTIAL INTEREST IN THE BUSINESS OR PROFESSION OF THE ASSESSEE, OR AN RELATIVE OF SUCH INDIVIDUAL; , (IV) A COMPANY, FIRM, ASSOCIATION OF PERSONS OR HIN DU UNDIVIDED FAMILY HAVING A SUBSTANTIAL INTEREST IN THE BUSINESS OR PROFESSION OF THE ASSESSEE OR ANY DIRECTOR, PARTNER OR MEMBER OF SUCH COMPANY, FIRM, ASSOCIATIO N OR FAMILY, OR ANY RELATIVE OF SUCH DIRECTOR, PARTNER OR MEMBER [OR ANY OTHER COMP ANY CARRYING ON BUSINESS OR PROFESSION IN WHICH THE FIRST MENTIONED COMPANY HAS SUBSTANTIAL INTEREST]; (V) A COMPANY, FIRM, ASSOCIATION OF PERSONS OR HIND U UNDIVIDED FAMILY OF WHICH A DIRECTOR, PARTNER OR MEMBER, AS THE CASE MAY BE, HA S A SUBSTANTIAL INTEREST IN THE BUSINESS OR PROFESSION OF THE ASSESSEE; OR ANY DIRE CTOR, PARTNER OR MEMBER OF SUCH COMPANY, FIRM, ASSOCIATION OR FAMILY OR ANY RELATIV E OF SUCH DIRECTOR, PARTNER OR MEMBER; (VI) ANY PERSON WHO CARRIES ON A BUSINESS OR PROFES SION,- (A) WHERE THE ASSESSEE BEING AN INDIVIDUAL, OR. ANY RELATIVE OF SUCH ASSESSEE, HAS A SUBSTANTIAL INTEREST IN THE BUSINES S OR PROFESSION OF THAT PERSON; OR (B) WHERE THE ASSESSEE BEING A COMPANY, FIRM, ASSOC IATION OF PERSONS OR HINDU UNDIVIDED FAMILY, OR ANY DIRECTOR OF SUCH COMPANY, PARTNER OF SUCH FIRM OR MEMBER OF THE ASSOCIATION OR FAMILY, O R ANY RELATIVE OF SUCH DIRECTOR, PARTNER OR MEMBER, HAS A SUBSTANTIAL INTEREST IN THE BUSINESS OR PROFESSION OF THAT PERSON. EXPLANATION.-FOR THE PURPOSES 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 C ARRIED ON BY A COMPANY, SUCH PERSON IS, AT ANY RIME DURING THE PREVIOUS YEAR, TH E BENEFICIAL OWNER OF SHARES (NOT ITA NO.1311-1314/KOL/2016 A.YS 98-99, 0 3-04 TO 05-06 JCIT(OSD) CIR-11(1), KOL. VS. M/S KRM INTE RNATIONAL LTD. PAGE 14 BEING SHARES ENTITLED TO A FIXED RATE OF DIVIDEND W HETHER WITH OR WITHOUT A RIGHT TO PARTICIPATE IN PROFITS) CARRYING NOT LESS THAN TWEN TY 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 C ENT OF THE PROFITS OF SUCH BUSINESS OR PROFESSION. I FIND THAT IN THE CASE UNDER CONSIDERATION, THE AO HAS DOUBTED THE GENUINENESS OF THE TRANSACTION, WHILE HE HAS NOT CAST ANY DOUBT ON THE IDENTITY OF THE JOB WORKER. IT APPEARS THAT THE COMPANY HAD BEEN HAVING TRANSACTIO NS RELATING TO JOB-WORK WITH THE JOB WORKER SHRI DILIP SINGHANIA, WHEREAS THE SAID J OB WORKER WAS ALSO A DIRECTOR OF THE COMPANY. IT IS I TO BE OBSERVED FROM THE ANNUAL REPORT OF THE COMPANY SUBMITTED BY THE APPELLANT BEFORE THIS FORUM, THAT THE NAME OF THE SAID SHRI DILIP SINGHANIA [PROP: MLS P M SINGHANIA& I COMPANY] HAS BEEN DISCLOSED IN THE ITEMS RELATED TO ' RELATED PARTY DISCLOSURE ' LISTED AT B3 OF THE NOTES TO ACCOUNTS AT PAGE 23 OF THE SAID ANNUAL REPORT. THE SAME HAS BEEN LIS TED AS A PARTY 'WHERE CONTROL EXISTS', UNDER THESE CIRCUMSTANCES, THE CONTENTION OF THE APPELLANT THAT THE TRANSACTIONS WERE-AT-ARM'S LENGTH HAS TO BE VIEWED IN THAT LIGHT. THE APPELLANT HAS SUBMITTED CERTAIN DOCUMENTS BY WAY OF PROOF THAT SH RI SINGHANIA FILED HIS INCOME TAX RETURN, AND THE SAID RETURN HAS BEEN FILED IN KOLKA TA WITH THE ADDI.CIT, RANGE- 32, KOLKATA, HOWEVER, IT IS ALSO SEEN THAT THE APPELLAN T-COMPANY HAS ALSO SUO MOTU ADDED THE JOB CHARGES IN ITS COMPUTATION, A POINT OVERLOOKED BY THE LD. AO . THE ADDITION ON ITS OWN HAS BEEN ON ACCOUNT OF EXPENSE S NOT ALLOWED FOR NON-PAYMENT OF TDS IN THE YEAR CONCERNED, WHICH WOULD BE ALLOWA BLE IN THE YEAR OF THE TDS PAYMENTS LATER ON. BE THAT AS THE CASE, I FIND THAT THE ENTIRE DISALLO WANCE MADE BY THE AO WAS HIGHLY I EXCESSIVE, AND THAT THE ESSENCE OF SEC 40(A)(2)(B) IS TO DISALLOW PORTIONS OF EXPENDITURE III BETWEEN RELATED PARTIES THOUGHT TO BE EXCESSIVE. FOR THE CASE AT HAND I AM OF THE CONSIDERED OPINION THAT A DISALLOWANCE OF 10% OF THE EXPENDITURE CLAIMED (RS.55,33,978) WOULD BE ADEQUATE TO TAKE CARE OF TH E ELEMENT OF NEARNESS AND PROXIMITY BETWEEN THE PARTIES. THEREFORE THIS MUCH IS DIRECTED TO BE DISALLOWED, AND FOR THE BALANCE THE APPELLANT WOULD BE ELIGIBLE FOR RELIEF. THIS GROUND OF APPEAL IS ACCORDINGLY PARTLY ALLOWED . 12. MR. CHOUDHURYS CASE DURING THE COURSE OF HEARI NG IS THAT THE CIT(A) HAS ERRED IN LAW AS WELL AS ON FACTS IN PARTLY DELE TING THE IMPUGNED DISALLOWANCE WITHOUT ANY BASIS. WE FIND THAT CIT(A) S ABOVE EXTRACTED DISCUSSION HAS DULY ESTABLISHED THE FACT THAT THE A SSESSEES PAYEE MR. DILIP SINGHANIA IN THE INSTANT CASE HAS RENDERED HIS JOB WORK SERVICES STAND ASSESSED QUA THE VERY INCOME. THERE IS FURTHER NO REBUTTLE TO T HE FACT THAT ASSESSEE-COMPANY SUO MOTU ADDED THE JOB CHARGES IN ITS COMPUTATION. THIS IS WHAT HAD MADE CIT(A) TO DISALLOW ONLY A APPORTION @ 10% THAN THE ENTIRE SUM. WE CONCLUDE IN THESE PECULIAR FACTS AND CIRCUM STANCES THAT THE REVENUESCHALLENGE TO CORRECTNESS OF THE CIT(A)S F INDINGS DOES NOT CARRY ANY ITA NO.1311-1314/KOL/2016 A.YS 98-99, 0 3-04 TO 05-06 JCIT(OSD) CIR-11(1), KOL. VS. M/S KRM INTE RNATIONAL LTD. PAGE 15 MERIT. THE REVENUES INSTANT GROUND AS WELL THIRD A PPEAL ITA NO.1313/KOL/2016 IS REJECTED THEREFORE. SO IT THE O UTCOME OF REVENUES IDENTICAL THIRD SUBSTANTIVE GROUND RAISED IN ITS LA ST APPEAL IN ITA NO.1314/KOL/2016 FOR ASSESSMENT YEAR 2005-06 INVOLV ING DISALLOWANCE AMOUNT OF 33,54,673/-. THE REVENUES INSTANT SUBSTANTIVE GROU ND IN BOTH THE INSTANT CASES AS WELL AS THIS THIRD MAIN APPEAL ITA 1313/KOL/2016 ARE DECLINED THEREFORE. 13. LASTLY COMES REVENUES FOURTH APPEAL ITA NO.131 4/KOL/2016 RAISING THREE SUBSTANTIVE GROUNDS OUT OF WHICH SECOND AND T HIRD ISSUES OF BAD DEBTS AND SEC. 40A(2)(B) (SUPRA) STAND REJECTED IN PRECED ING PARAGRAPH. WE THEREFORE DEAL WITH THE SOLE SURVIVING ISSUE OF SEC . 41 ADDITION OF 56,35,771/-. THE CIT(A) HOLDS IN PAGE 3 PARA-2 THAT THE ASSESSEE HAD ALREADY ADDED BACK THE SAME AS INCOME IN ITS PROFIT & LOSS A/C RESULTI NG IN DOUBLE ADDITION. THIS CLINCHING FACT HAS GONE REBUTTED FROM THE REVENUES SIDE. WE THEREFORE REJECT REVENUES INSTANT SUBSTANTIVE GROUND AS WELL IN LAS T APPEAL ITA NO.1314/KOL/2016. 14. THESE FOUR REVENUES APPEAL(S) ARE DISMISSED AC CORDINGLY. ORDER PRONOUNCED IN THE OPEN COURT 03/ 05/2019 SD/- SD/- ( ) (( ) (DR.A.L. SAINI) (S.S.GODARA) (ACCOUNTANT MEMBER) (JUDICIAL MEMBER) KOLKATA, *DKP, SR.P.S )- 03 / 05 /201 9 / COPY OF ORDER FORWARDED TO:- 1. /ASSESSEE-M/S KRM INTERNATIONAL LTD., 46/1B, BALLYG UNGE PLACE, NEW GARIAHAT, GROUND FLOOR, KOL KATA-19 2. /REVENUE-JCIT(OSD), CIR-11(1), CIRCLE-11(1), P-7, C HOWRINGHEE SQ. KOLKATA-69 3. 4 5 / CONCERNED CIT KOLKATA 4. 5- / CIT (A) KOLKATA 5. 8 ((4, 4, / DR, ITAT, KOLKATA 6. = / GUARD FILE. BY ORD ER/ , /TRUE COPY/ 4,