The ITO, Ward-1(3), Ahmedabad V. M/s. Chamunda Pharma Machinery Pvt. Ltd., Ahmedabad

ITA 2169/AHD/2015

• Counselvise Citation: [2019] 118 COUNSELVISE.COM (IT) 5528 (ITAT-AHMEDABAD)
• Duration Of Justice: 3 year(s) 6 month(s) 8 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-01-2019
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: Not Allotted
• Assessment Year: 2011-2012
• Appeal Filed On: 22-07-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: B P SRIVASTAVA
• Assessee Lawyers: BIREN SHAH A R S
• Keywords: Additional evidence; Bad and doubtful debts

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL , B BENCH, AHMEDABAD BEFORE SHRI WASEEM AHMED , ACCOUNTANT MEMBER AND MS MADHUMITA ROY, JUDICIAL MEMBER ./ ITA NO .1945 /AHD/2015 / ASSTT. YEAR : 2011 - 2012 M/S CHAMUNDA PHARMA MACHINERY PVT. LTD. , 7602 PHASE - IV, GIDC VATVA , AHMEDABAD - 382445 . PAN: AABCC1690E VS . I.T .O WARD - 1(3) , AHMEDABAD . ./ ITA NO.2169 /AHD/2015 / ASSTT. YEAR: 2011 - 2012 I.T.O WARD - 1(3) , AHMEDABAD . VS . M/S CHAMUNDA PHARMA MACHINERY PVT. LTD., 7602 PHASE - IV, GIDC VATVA, AHMEDABAD - 382445. PAN: AABCC1690E (APPLICANT) ( RESPON D ENT ) ASSESSEE BY : SHRI VARTIK CHOKSHI & BIREN SHAH , A.R S REVENUE BY : SHRI B.P. SRIVASTAVA , SR. DR / DATE OF HEARING : 31 / 12 / 201 8 / DATE OF PRONOUNCEMENT: 30 /01 /2 01 9 / O R D E R PER WASEEM AHMED, ACCOUNTANT MEMBER: THE CAPTIONED CROSS APPEAL S HAVE BEEN FILED AT THE INSTANCE OF THE ASSESSEE AND REVENUE AGAINST THE COMMON ORDER OF THE COMMISS IONER OF ITA NOS.1945 & 2169/AHD/2015 ASSTT. YEAR 2011 - 12 2 INCOME TAX (APPEALS) - 6 , AHMEDABAD [CIT(A) IN SHORT] VIDE APPEAL NO. CIT(A) - 6/148/13 - 14 DATED 11 / 05 / 2015 ARISING IN THE MATTER OF ASSESSMENT ORDER PASSED UNDER S.143(3)OF THE INCOME TAX ACT, 1961 ( HERE - IN - AFTER REFERRED TO AS 'THE ACT') DATED 31 /0 1 / 201 4 RELEVANT TO ASSESSMENT YEAR (AY) 2011 - 12 . 2. THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS OF APPEAL. 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LEAR NED CIT(A) ERRED IN CONFIRMING ADDITION TO THE EXTENT OF RS. 81,00,000 MADE BY THE ASSESSING OFFICER BY DISALLOWI NG PROVISION MADE IN THE BOOKS OF ACCOUNT IN RESPECT OF ACCRUED AND ASCERTAINED LIABILITY IN RESPECT OF INSTALLATION CHARGES. 2. WITHOUT PREJUDICE TO TH E ABOVE AND ALTERNATIVELY IT IS SUBMITTED THAT IF THE AFORESAID DISALLOWANCE IS RETAINED , THE APPELLANT - COMPANY SHOULD BE ALLOWED DEDUCTION OF RS. 70,29,990 - BEING T HE PROVISION IN RESPECT OF THE AFORESAID LIABILITY WRITTEN BACK IN THE PREVIOUS YEAR RELEVA NT TO THE ASSESSMENT YEAR 2013 - 14. 3. THE APPELLANT CRAVES LEAVE TO ADD, ALTER, AMEND AND/OR WITHDRAW ANY GROUND OR GROUNDS OF APPEAL EITHER BEFORE OR DURING THE COURSE OF HEARING OF THE APPEAL. 3. THE REVENUE HAS RAISED FOLLOWING GROUNDS OF APPEAL. (1) THE ID. CIT(A) HAS ERRED IN LAW AND ON FACTS IN DELETING THE ADDITION OF RS. 1,65,46,428/ - BEING ADDITION ON ACCOUNT OF PROVISION OF COMMISSION EXPENSES AND IN NOT APPRECIATING THE FACT THAT THE ASSESSEE HAS FAILED TO SUBSTANTIATE THAT THE LIABILITY OF COMMISSION EXPENSES HAS NOT BEEN CRYSTALLIZED OR DETERMINED DURING THE YEAR UNDER CONSIDERATION AND IT WAS ONLY AN ESTIMATED LIABILI TY. (2) THE ID. CIT(A) HAS FURTHER ERRED IN ADMITTING THAT COMMISSION PAYABLE TO WPACL ANDAPACL WAS 15% OF THE FOB @ 15% OF TOTAL FOB VALUE MAY ALSO BE PAID BY THE ASSESSEE AS ADDITIONAL EVIDENCE BECAUSE OF THE FACT THAT NO SUCH DETAILS WAS PLACED ON RECO RD DURING THE COURSE OF ASSESSMENT PROCEEDINGS. THUS, THE ID. CIT(A) HAS FAILED TO INVOKE RULE 46A OF THE ACT ITA NOS.1945 & 2169/AHD/2015 ASSTT. YEAR 2011 - 12 3 ON THE FACT AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE CIT(A) OUGHT TO HAVE UPHELD THE ORDER OF THE ASSESSING OFFICER TO THE EXTENT MEN TIONED ABOVE SINCE THE ASSESSEE HAS FAILED TO DISCLOSE HIS TRUE INCOME/BOOK PROFIT. THE APPELLANT PRAYS THAT THE ORDER OF CIT(A) ON THE ABOVE GROUNDS BE SET ASIDE AND THAT OF THE ASSESSING OFFICER BE RESTORED TO THE ABOVE EXTENT. THE APPELLANT CRAVES, TO L EAVE, TO AMEND OR ALTER ANY GROUND OR ADD A NEW GROUND WHICH MAY BE NECESSARY. 4. THE INTERCONNECTED ISSUE RAISED IN THE APPEAL OF ASSESSEE AND REVENUE IN ALL THE GROUNDS OF APPEALS IS AGAINST THE PROVISION FOR COMMISSION AND INSTALLATION CHARGES AMOUNTING TO RS. 1,65,46,428/ - AND RS. 70,29,990/ - RESPECTIVELY. 5. BRIEFLY STATED FACTS A RE THAT THE ASSESSEE IS A PRIVATE LIMITED COMPANY AND ENGAGED IN THE BUSINESS OF MANUFACTURING AND TRADING OF PHARMACE U TICALS MACH INERY INCLUDING THEIR PARTS, DI E S , AND PUNC H ES. 6. BEFORE GOING TO THE SPECIFIC ISSUE , IT IS PERTINENT TO UNDERSTAND THE BR IE F HISTORY OF THE CASE WHICH GOES AS UNDER: 1. THERE WERE TENDER S ISSUED BY THE GOVERNMEN T PHARMACEUTICAL ORGANIZATION ( IN SHORT GPO ) - AN ORGANIZATION O F THAI GOVERNMENT FOR THE PURCHASE AND INSTALLATION OF PHARMACEUTICAL MACHIN ERY. THE GPO ACCEPTED THE OFFER MADE IN RELATION TO SOME OF THE TENDERS BY WOLF PACKAGING AND AUTOMATION (THAILAND) COMPANY LTD. (IN SHORT WPACL) AND ABSOLUTE PACKAGING AND AUTOMATION COMPANY LTD. (IN SHORT APACL) . THE WPACL HAS FURTHER GIVEN THE ORDER TO THE ASS ESSEE TO SUPPLY THE PHARMACEUTICAL MACHINERY AS PER THE SPECIFICATION OF GPO . ACCORDINGLY , THERE WAS AN ARRANGEMENT BETWEEN THE ASSESSEE AND WPACL THAT THE ASSESSEE SHALL PAY TO IT ITA NOS.1945 & 2169/AHD/2015 ASSTT. YEAR 2011 - 12 4 COMMISSION AT THE RAT E OF 15% OF THE FREE ON BOARD ( IN SHORT FOB ) V ALUE. 2. ACCORDINGLY , THE ASSESSEE SUPPLIED THE PRODUCTS TO GP O . THE ASSESSEE WAS ALSO LIABLE FOR PROVID ING THE INSTALLATION AND POST - INSTALLATION WARRANTY SE RVICES TO THE GPO . 3. T HE ASSESSEE AGAINST THE EXPORT SALES TO THE GPO HAS CREATED A PROVISION FOR COMMISSION AND INSTALLATION CHARGES AMOUNTING RS. 1,65,4 6,428 AND RS. 81,00,000/ - RESPECT IVELY. THE COMMISSION WAS TO BE PAID TO WPACL AND ITS ASSOCIATES APACL AS DISCUSSED ABOVE. 4. THE PROVISION OF COMMISSION CHARGES AS STATED ABOVE ALS O INCLUDES A SUM OF RS. 25,90,580/ - WHICH IS PAYABLE TO THE OTHER PARTIES. THUS, THE BALANCE AMOUNT OF PROVISION OF COMMISSION AMOUNT ING TO RS. 1,39,55,848 (1,65,46,428 25,90,580) WAS ON ACCOUNT OF EXPORT SALES TO GPO . THUS T HE AMOUNT OF COMMISSION TO BE PAID TO WPACL AND ITS ASSOCIATES APACL AS DISCUSSED ABOVE WAS OF RS. 1,39,55,848.00 . ONLY 5. THE ASSESSEE DURING THE ASSESSMENT PROCEEDINGS ALSO CLAIM ED THAT IT HAS ALSO PAID THE AMOUNT OF COMMISSION AND INSTALLATION CHARGES TO COMMISSION AGENTS AND NEHA ENTERPRISES OF RS. 47,93,575/ - AND RS. 10,70,010/ - IN PART RESPECTIVELY. 6. HOWEVER, THE AO WAS OF THE VIEW THAT THE PROVISIONS CREATED FOR COMMISSION AND INSTALLATION CHARGES REPRESENT A CON T INGENT LIABILITY . THEREFORE THE SAME CANNOT BE ALLOWED AS A DEDUCTION UNDER THE ITA NOS.1945 & 2169/AHD/2015 ASSTT. YEAR 2011 - 12 5 PROVISION OF A CT. ACCORDINGLY , THE AO ISSUED A SHOW CAUSE NOTICE TO THE ASSESSEE . 7. THE ASSESSEE IN RESPONSE TO THE NOTICE SUBMITTED THAT THE PROVISION FOR COMMISSIO N AND INSTALLATION CHARGES IS DIRECTLY LINK ED WITH THE EXPORT SALES MADE TO THE GPO . THE ENTIRE EXPORT SALES TO THE GPO HAS BEEN OFFERED TO TAX UNDER THE INCOME TAX RETURN IN THE YEAR UNDER CONSIDERATION . THEREFORE, AS PER THE MATCHING PRINCIPLE , THE PROVISIONS CREATED FOR THE COMMISSION AND I NSTALLATION CHARGES ARE ELIGIBLE FOR DEDUCTION. 8. THE ASSESSEE WITHOUT PREJUDICE TO THE ABOVE ALSO SUBMITTED THAT IN CASE SUCH PROVISION S AR E DISALLOWED TH E N THE CORRESPOND ING SALES TO THE GPO SHOULD ALSO BE EXCLUDED FROM THE INCOME AS PER THE ESTABLISHED MATCHING PRINCIPLE OF ACCOUNTING . THE ASSESSEE ALSO SUBMITTED IN THE SUBSEQUENT YEAR DEAL WITH GPO GOT CANCELED . ACCORDINGLY , IT HAS REVERSED THE BALANCE AMOUNT OF PROVISION IN THE ASSESSMENT YEAR 2013 - 14 BY CREDITING THE PROFIT AND LOSS AC COUNT. THE REVERSAL FOR COMMISSION AND INSTALLATION CHARGES WAS MADE IN RESPECT OF THE AMOUNT WHICH WERE NOT PAID . THUS, THE BALANCE AMOUNT OF COMMISSION AND INSTALLATION CHARGES HAS ALREADY BEEN OFFERED TO TAX . 9. T HE ASSESSEE ALSO CLAIMED THAT IT HA D CREA TED THE PROVISION FOR THE COMMISSION AND INSTALLATION CHARGES ON THE BASIS OF THE MERCANTILE SYSTEM OF ACCOUNTING. AS SUCH IT IS MAINTAINING ITS BOOKS OF ACCOUNTS AS PER THE MERCANTILE SYSTEM OF ACCOUNTING AND ACCORDINGLY ALL THE EXPENSES ACCRUED WERE DULY ACCOUNTED IN THE BOOKS. ITA NOS.1945 & 2169/AHD/2015 ASSTT. YEAR 2011 - 12 6 10. HOWEVER , THE AO FOUND THAT THE PROVISIONS CREATED FOR THE COMMISSION AND INSTALLATION CHARGES ARE NOT ASCERTAINABLE . THUS, THE PROVISIONS WERE NOT QUANTIFIED ON SCIENTIFIC BASIS , THEREFORE , SUCH PROVISION S REPRESENT THE CONTINGENT LIABILITY IN THE AUDITED FINANCIAL STATEMENT. THERE IS NO PROVISION UNDER THE ACT TO ALLOW THE DEDUCTION ON ACCOUNT OF CONTINGENT LIABILITY. 11. THE AO ALSO REFERRED THE GUIDELINES ISSUED BY THE IC AI IN ACCOUNTING STANDARD 29 AND HE LD THAT THE PROVISION FOR COMMISSION AND INSTALLATION CHARGES HA D NOT BEEN CRYSTA L LIZED AND THEREFORE THE SAME CA NNOT BE ALLOWED AS DEDUCTION. AO ACCORDINGLY DISALLOWED THE SAME AND ADDED TO THE TOTAL INCOME OF THE ASSESSEE. 7. AGGRIEVED ASSESSEE P REFERRED AN APPEAL BEFORE THE LD.CIT (A). THE ASSESSEE BEFORE THE LD.CIT (A) SUBMITTED THAT THE COMMISSION WAS QUANTIFIED ON THE BASIS OF FOB VALUE AS PER THE UNDERSTANDING WITH WPACL . THE ASSESSEE IN SUPPORT OF HIS CLAIM ALSO FURNISHED THE DETAILS OF THE COMMISSION AND FOB VALUE OF THE GOODS EXPORTED TO GPO . THE NECESSARY DETAILS STAND AS UNDER: CHAMUNDA PHARMA MACHINERY PVT. LTD. PROVISION FOR COMMISSION ON GPO SALES BILL NO DATE BILL AMT. USD FOB VALUE FOR COMMN . COMMISSION PROVISION IN USD ES109 08/12/10 429740 382740 57411 ES115 20/12/10 220000 199000 29850 ES162 31/03/11 432000 397000 59550 CT002 31/03/11 1153000 1105000 165750 2083740 COMMN.@ 15% ON FOB VALUE 312561 ITA NOS.1945 & 2169/AHD/2015 ASSTT. YEAR 2011 - 12 7 RATE 312561 @ 44.214 44.214 TOTAL AMT. INR PROVISION 13819572.05 7.1 THE ASSESSEE ALSO CLAIMED THAT IT HAS ALREADY PAID THE COMMISSION TO THE PARTIES IN THE YEAR UNDER CONSIDERATION . H OWEVER, A CERTAIN AMOUNT OF COMMISSION WAS NOT PAID TO THE PARTY DUE TO THE DISPUTE WITH GPO . ACCORDINGLY , THE AMOUNT OF COMMISSION PAY ABLE TO WPACL WAS ADJUSTED WITH THE AMOUNT RECOVERABLE FROM THE GPO ON ACCOUNT OF SALES MADE TO IT. THUS, THE NET AMOUNT WAS WRITTEN OFF AS BAD DEBT IN THE ASSESSMENT YEAR 2013 - 14. 7.2 SIMILARLY THE ASSESSEE ALSO S UBMI TTED THAT IT HAS INCURRED EXPENSES OF RS. 10 , 70 , 010 / - IN RESPECT OF PROVISION FOR INSTALLATION CHARGES OUT OF TOTAL AMOUNT OF RS. 81,00,000/ - IN THE ASSESSMENT YEAR 2012 - 2013. THUS, THE BALANCE AMOUNT OF RS. 70 , 29 , 990/ - WAS OFFERED TO TAX IN THE ASSESSMEN T YEAR 2013 - 14 . ACCORDINGLY, THE ASSESSEE CLAIM ED THAT NO DISALLOWA NCE CONCERNING THE PROVISION CREATED FOR THE COMMISSION AND INSTALLATION CHARGES TO BE MADE . 7.3 HOWEVER, THE LD.CIT (A) FOUND THAT DISPUTED AMOUNT OF COMMISSION IS OF RS. 1,39,55,848/ - WHICH WAS VERY MUCH ASCERT AINABLE AS IT WAS FIXED AT THE RATE OF 15% OF THE FOB VALUE. THEREFORE THE SAME CANNOT BE TREATED AS MERE ESTIMATION. THE LD.CIT (A) ALSO OBSERVED THAT ONCE ENTIRE SALES HA VE BEEN TREATED A S INCOME , THE N THE CORRESPONDING COMM ISSION EXPENSES CANNOT BE DISALLOWED MERELY BECAUSE THESE ARE THE CONTI N GENT LIABILITY . A CCORDINGLY , LD.CIT (A) DELETED THE ADDITION MADE BY THE AO FOR THE PROVISION OF COMMISSION . ITA NOS.1945 & 2169/AHD/2015 ASSTT. YEAR 2011 - 12 8 7.4 REGARDING THE INSTALLATION CHARGES THE LD.CIT (A) OBSERVED THAT THE SAME HA D NOT BEEN MADE ON THE SCIENTIFIC BASIS . I T WAS MER E ESTIMATION PREPARED BY THE PROJECT DEPARTMENT OF THE ASSESSEE . THE ASSESSEE HAS NOT COMPARED SUCH PROVISION WITH THE EARLIER YEAR PROVISION MADE BY I T IN ITS BOOK S OF ACCOUNTS . A CCORDINGLY , THE LD.CIT (A) DISALLOWED THE DEDUCTION OF RS. 81,00,00 0/ - FOR THE PROVISION OF INSTALLATION CHARGES AND CONFIRMED THE ORDER OF THE AO. 8. BEING AGGRIEVED BY THE ORDER OF THE LD.CIT (A) BOTH ASSESSEE AND REVENUE ARE IN APPEAL BEFORE US. 9. THE ASSESSEE IS IN APPEAL BEFORE US AGAINST THE CONFIRMATION OF THE ADDITION FOR THE PROVISION OF INSTALLATION CHARGES AMOUNT ING TO RS. 81,00,000/ - WHEREAS REVENUE IS IN APPEAL AGAINST THE DELETION OF THE PROVISION FOR COMMISSION EXPENSE S AMOUNTING TO RS. 1,65,46,428/ - . 10. THE LD.AR, BEFORE US FILED A P APER BOOK RUNNING FROM PAGES 1 TO 212 AND SUBMITTED REGARDING THE INSTALLATION CHARGES AS UNDER: APPELLANT WOULD LIKE TO ATTENTION TO THE BASIS OF PROVISION FILED WITH AO. THE PROVISION IS BASED ON BUDGETED NUMBERS - A METHOD WHICH HAS BEEN WIDELY ACCEPTED AS BEING SCIENTIFIC& THERE IS NO NEED TO FALL BACK ON ANY COMPARABLE BASED ON CURRENT YEAR OR PRECEDING YEAR EXPERIENCE. SC IN BHARAT EARTHMOVERS LTD 245 ITR 428 THE LAW IS SETTLED : IF A BUSINESS LIABILITY HAS DEFINITELY ARISEN IN THE ACCOUNTING YEAR, THE DEDUCTION SHOULD BE ALLOWED ALTHOUGH THE LIABILITY MAY HAVE TO BE QUANTIFIED AND DISCHARGED AT A FUTURE DATE. WHAT SHOULD BE CERTAIN IS THE INCURRING OF THE LIABILITY. IT SHOULD ALSO B E CAPABLE OF BEING ESTIMATED WITH REASONABLE CERTAINTY THOUGH THE ACTUAL QUANTIFICATION MAY NOT BE POSSIBLE. IF THESE REQUIREMENTS ARE SATISFIED THE LIABILITY IS NOT A CONTINGENT ONE. THE LIABILITY IS IN PRAESENTI THOUGH IT WILL BE DISCHARGED AT A FUTURE D ATE. IT DOES NOT MAKE ANY DIFFERENCE IF THE FUTURE DATE ON WHICH THE LIABILITY SHALL HAVE TO BE DISCHARGED IS NOT CERTAIN. ITA NOS.1945 & 2169/AHD/2015 ASSTT. YEAR 2011 - 12 9 2. WITHOUT PREJUDICE TO THE ABOVE AND ALTERNATIVELY IT IS SUBMITTED THAT IF THE AFORESAID DISALLOWANCE IS RETAINED , THE APPELLANT - COMPANY SHOULD BE ALLOWED DEDUCTION OF RS.70,29,990 BEING THE PROVISION IN RESPECT OF THE AFORESAID LIABILITY WRITTEN BACK IN THE PREVIOUS YEAR RELEVANT TO THE ASSESSMENT YEAR 2013 - 14. FACTUAL POSITION W.R.T. AY 2013 - 14 LOSS AS PER RETURN DATED 28/09/2013 RS.( - ) 2.06,48,544/ - ADD.: 1.ADDITION ON U/S.2(24)(X) AS DISCUSSED ABOVE RS. 4,27,923/ - 2. ADDITION U/S.68 - AS DISCUSSED ABOVE RS, 38,000/ - ASSESSED LOSS RS. ( - ) 2,01,82,6217 - ROUNDED OFF RS. ( - ) 2,01,82,6207 - RETURNED INCOME FOR AY 2013 - 14 DOES NOT ADJUST THE AMOUNT WRITTEN BACK RS. 70,29,990 OUT OF PROVISION OF RS.81 LACS FOR INSTALLATION MADE IN PREVIOUS YEAR RELEVANT TO AY 2011 - 12. IT HAS RIGHTLY OFFERED THE AMOUNT WRITTEN BACK SINCE THE ASSESSEE HAD CLAIMED DEDUCTION IN AY 2011 - 12. THE AMOUNT WRITTEN BACK IS SET OFF AGAINST BAD DEBTS WRITTEN OFF - RS. 3,47,24,110 DEBITED TO P&L ACCOUNT. THE RETURNED LOSS WOULD BE HIGHER AT RS. 2,76,78,534 IF THE SET OFF OF WRITE BACK IS IGNORED. 11. THE ASSESSEE REGARDING THE PROVISION FOR THE COMMISSION CHARGES SUBMITTED AS UNDER: THE APPELLANT - ASSESSEE HAS SUBMITTED ALL DETAILS WITH REGARDS TO THE; PROVISION MADE FOR COMMISSION - AS IS EVIDENT FROM SUBMISSIONS MADE AND IN RESPONSE TO VARIOUS NOTICES ISSUED IN THIS REGARDS. ALL INFORMATION WITH REGARDS TO COMMISSION PAYMENT HAVE BE EN SUBMITTED IN RESPONSE TO VARIOUS NOTICES ISSUED INCLUDING THE SHOW CAUSE ISSUED I THIS REGARDS. THE CIT(A) HIMSELF HAS OBSERVED THAT AO'S OBSERVATIONS ARE CONTRARY TO THE FACTS AVAILABLE ON RECORD - IMPLYING THEREBY THAT AIL INFORMATION WAS PLACED ON RE CORD BY THE APPELLANT - ASSESSEE. ITA NOS.1945 & 2169/AHD/2015 ASSTT. YEAR 2011 - 12 10 12 . THE LD. DR SUBMITTED THAT THE LIABILITY FOR THE COMMISSION EXPENSES WAS NOT CRYSTAL L IZED IN THE YEAR UNDER CONSIDERATION . T HEREFORE THE SAME CANNOT BE ALLOWED AS DEDUCTION. 12 .1 THE DOCUMENTS SPECIFYING THE RATE AND AMOUNT OF COMMISSION BETWEE N THE ASSESSEE AND WPACL WAS NOT FURNISHED DURING THE ASSESSMENT PROCEEDINGS. HOWEVER, THE LD.CIT (A) WITHOUT TAKING THE REMAND REPORT FROM THE AO HAS ACCEPTED ADDITIONAL EVIDENCE IN CONTRAVE NTION TO THE PROVISION OF RULE 46A OF INCOME TAX RULE. 12 .2 THE PROVISION FOR INSTALLATION CHARGES WAS NOT BASE D ON ANY SCIENTIFIC BASIS . THEREFORE, THE SAME CANNOT BE ALLOWED AS DEDUCTION. 13 . BOTH THE LD.AR AND LD. DR BEFORE US RELIED ON THE ORDER OF THE AUTHORITIES BELOW AS FAVORABLE TO THEM. 14 . W E HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE MATERIALS AVAILABLE ON RECORD. THE ASSESSEE IN THE CASE ON HAND HAS MADE EXPORT SALES TO GPO FOR AN AM OUNT OF USD 22,34 ,740.00 ONLY (INR 10,03,29 ,485.00) . S UCH SALE WAS REFLECTED IN THE GROSS SALES MADE BY THE ASSESSEE DURING THE YEAR. THE ASSESSEE AGAINST SUCH SALE ALSO WORKED OUT THE CORRESPONDING EXPENSES IN THE FORM OF COMMISSION AND INSTALLATION CHARGES AMOUNTING TO USD 3,12,561.00 AND RS. 81 LAKHS RESPECTIVELY WHICH WERE DEB ITED IN THE PROFIT AND LOSS ACCOUNT. 14 .1 THE COMMISSION EXPENSE WAS DETERMINE D AT THE RATE OF 15% OF THE FOB VALUE F OR THE PRODUCTS EXPORTED TO GPO . THE DETAILS OF THE EXPORT SALES AND THE COMMISSION EXPENSES STAND AS UNDER : ITA NOS.1945 & 2169/AHD/2015 ASSTT. YEAR 2011 - 12 11 14 .2 T HE ASSESSEE OUT OF THE ABOVE COMMISSION HAS PAID AN AMOUNT OF USD 108427 IN THE YEAR UNDER CONSIDERATION WHICH WAS SHOWN AS ADVANCE PAYMENT. THE DETAILS OF THE COMMISSION AMOUNT & ITS PAYMENT STAND AS UNDER: COMMISSION PROV IN USD COMM PAID BALANCE ADJU ST AGST PROV ES109 08/12/10 57411 57411 0 ES115 20/12/10 29850 29850 0 ES162 31/03/11 59550 5594 53956 CI002 31/03/11 165750 15572 150178 312561 108427 204134 44.214 44.214 13819572.05 4793991.378 14 .3 SIMILARLY , THE ASSESSEE HAS ESTIMATED THE INSTALLATION CHARGES AGAINST THE SALES MADE TO GPO AMOUNTIN G TO R S . 81,00,000.00 ONLY. T HE ASSESSEE ESTIMATED THE INSTAL LATION CHARGES ON THE BASIS OF DETAIL GIVEN BY ITS PROJECT DEPARTMENT. THE RELEVANT EXTRACT IS REPRODUCED AS UNDER: FROM : PROJECT DEPARTMENT TO: ACCOUNT DEPARTMENT DEAR MR. CHIRAG WITH REFERENCE TO YOUR LETTER REGARDING THE INSTALLATION COST OF MACHINE SUPPLIED TO M/S GPO THAILAND. IN THIS CONNECTION WE PROVIDE YOU THE FOLLOWING TENTATIVE COST FOR MAKING PROVISION IN YOUR BALANCE SHEET. CHAMUNDA PHARMA MACHINER Y PVT. LTD. DETAILS OF COMMISSION CALCULATION TO WOLF FBD RMG COATER IBC 1 CONTRACT VALUE IN USD 429740 220000 432000 1153000 2 C & F VALUE IN USD 47000 21000 35000 48000 3 FOB VALUE IN USD 382740 199000 397000 1105000 4 COMMISSION @ 15% 57411 29850 59550 165750 5 TOTAL COMMISSION OF 4 NOS. CONTRACT IN USD 312561 6 TOTAL COMMISSION OF 4 NOS. CONTRACT IN THB 1 USD = 32.40 THB I.E. 10126976 ITA NOS.1945 & 2169/AHD/2015 ASSTT. YEAR 2011 - 12 12 THE TENTATIVE COSTS OF INSTALLATION ARE AS UNDER . SR. NO. PARTICULAR AMOUNT RS. 1 MACHINE OPEN AND TAKEN IN TO THE PLACE AT INSTALLATION AREA 1200000/ - 2 TRAVELLING EXPENSES FOR SENDING INSTALLATION TEAM FROM INDI A AND BACK 2 TIMES AND ONE MINIMUM 6 PERSON . 6 PERSON X 2 TIMES X 275000 = 330000/ - ALLOWANCE TO THAT PERSON = 100000/ - HOUSE RENT PAYABLE FOR 6 MONTHS = 60000/ - CONVEYANCE EXPENSES = 60000/ - OTHER EXPENSES = 50000/ - 600000/ - 3 COMMITMENT FOR PURCHASE OF CHILLER SYSTEMS AT THAILAND AND DELIVER TO CUSTOMER SITE AS CONFIRM BY US 5400000/ - 4 INSTALLATION OF STRUCTURE AT SITE 900000/ - TOTAL 8100000/ - 14 .4 THE ASSESSEE OUT OF SUCH INSTALLATION CHARGES HAS M ADE A PAYMENT FOR A SUM OF R S . 10,70,010.00 IN THE SUBSEQUENT FINANCIAL YEAR , I.E . 2011 - 12 AS EVIDENT FROM THE COPY OF THE LEDGER PLACED ON PAGES 150 TO 152 OF THE PB. 14 .5 IT IS AN UNDISPUTED FACT THAT THE ASSESSEE HAS SHOWN THE SALES OF THE ENTIRE AMOUNT IN ITS FINANCIAL STATEMENTS IN THE YEAR UNDER CONSIDERATION. THE AM OUNT OF SALES TO GPO IS OF R S . 10,03,29 ,485.00 WHICH WAS SHOWN I N THE PROFIT AND LOSS ACCOUNT. THE ASSESSEE AGAIN ST SUCH SALES HAS RECEIVED AN AMOUNT OF USD 12,03,703.00 ONLY WHICH WAS DULY ACCOUNTED IN THE BOOKS OF ACCOUNTS. THE BALANCE REMAINED OUTS TANDING FOR USD 1031037. 00 ONLY. THE NECESSAR Y DETAILS OF THE RECEIPT AND OUTSTANDING AMOUNT OF SALE CONSIDERATION STA ND AS UNDER: CHAMUNDA PHARMA MACHINERY PVT. LTD. DETAILS OF OUTSTANDING OF EXPORT PROCEEDS BANK DETAILS REF. BILL NO. DATE LC % REC D % BALANC E RECEIVE D USD BALANCE OUTSTANDIN G RATE AMT IN INR H05PCNS1 03620001 ES109 08/12/10 429740 95 5 408253 21487 44.75 961543.25 H05PCNU 11011001 ES115 20/12/10 220000 95 5 209000 11000 44.75 492250.00 H05CNU11 1090001 ES162 31/03/11 432000 37 63 159840 272160 44.74 12176438.4 0 H05PCNU 11011002 CI002 31/03/11 115300 0 37 63 426610 726390 44.74 32498712.3 5 ITA NOS.1945 & 2169/AHD/2015 ASSTT. YEAR 2011 - 12 13 TOTAL 223474 0 120370 3 1031037 46128944.0 0 14 .6 HOWEVER , IN THE ASSESSMENT YEAR 2013 - 14 SOME DISPUTE HAS TAKEN PLACE BETWEEN THE ASSESSEE AND THE GPO. ACCORDINGLY, THE ASSESSEE HAS CLAIMED THE BAD DEBTS AMOUNTING TO USD 1031037 EQUIVALENT TO INDIAN RS. 4,61,28, 944.00 ONLY IN THE ASSESSMENT YEAR 2013 - 14. 14 .7 THE ASSESSEE ALSO HAD WRITTEN BACK THE AMOUNT OF THE COMMISSION E XPENSES AMOUNTING TO USD 204134 WHICH WAS NOT PAID TO THE CONCERNED PARTIES. THUS THE COMMISSION EXPENSES WHICH WERE NOT INCURRED BY THE ASSESSEE WERE OFFERED TO TAX IN THE ASSESSMENT YEAR 2013 - 14. 14 .8 SIMILARLY , THE ASSESSEE ALSO HAS WRITTE N BACK THE AMOUNT OF THE INSTALLATI ON CHARGES AMOUNTING TO R S . 70,29,990.00 WHICH WAS NOT PAID TO THE CONCERNED PART Y NAMELY M/S NEHA ENTERPRISES. THUS THE AMOUNT OF INSTALLATION CHARGES WHICH WERE N OT INCURRED BY THE ASSESSEE OFFERED TO TAX IN THE ASSESSMENT YEAR 2013 - 14. 14 .9 IN THE BACKDROP OF THE ABOVE - STATED FACTS, WE NOTE THAT THE AO IN THE YEAR UNDER CONSI DERATION , THE AMOUNT SHOWN AS PROVISION FOR COMMISSION AND INSTALLATION CHARGES , DISALLOWED ON THE GROUND THAT THESE EXPENSES WERE NOT CRYSTALLIZED AND MERE REPRESENTING THE CONTINGENT LIABILITY. 15 . THE LEARNED CIT (A) SUBSEQUENTLY DELETED THE ADDITION MADE BY THE AO FOR THE COMMISSION EXPENSES BY OBSERVING THAT THE COMMISSION EXPENSES WAS BOOKED IN RELATION TO THE SALES WHICH WAS OFFERED TO TAX BY THE ASSESSEE AND THE SAME WAS ASCERTAINABLE . ITA NOS.1945 & 2169/AHD/2015 ASSTT. YEAR 2011 - 12 14 15 .1 HOWE VER , THE LEARNED CIT (A) CONFIRMED THE ADDITION FOR THE INSTALLATION EXPENSES BY OBSERVING THAT THESE EXPENSES WERE NOT BASED ON THE SCIENTIFIC BASIS. 16 . REGARDING THE COMMISSION EXPENSES, WE NOTE THAT IT WA S DIRECTLY LINKED WITH THE SALE WHICH WAS DULY OFFERED BY THE ASSESSEE TO TAX IN ITS AUDITED FINANCIAL STATEMENTS. IT IS AN UNDISPUTED FACT THAT THE REVENUE DULY ACCEPTED THE SALE OFFERED BY THE ASSESSE E . AS PER THE MATCHING PRINCIPLES , ALL THE COSTS CONCERNING THE INCOME SHOULD BE RECO GNIZED IN THE YEAR IN WHICH THE ASSESSEE BOOKED SUCH INCOM E . 16 .1 IT IS ALSO IMPORTANT TO NOTE THAT THE ASSESSEE AGAINST THE PROVISION OF COMMISSION EXPENSES HAS PA ID COMMISSION AMOUNTING TO R S . 27,27,255/ - IN THE YEAR UNDER CONSIDERATION AND A SUM OF RS. 47,93,575 . 00 WAS PAID IN THE SUBSEQUENT YEAR I.E. FY 2012 - 13. THIS FACT HAS NOT BEEN DISPUTED BY THE AUTHORITIES BELOW. THE NECESSARY DETAILS OF THE COMMISSION EXPENSES AND ITS PAYMENT HA VE ALREADY BEEN ELABORATED IN THE PRECEDING PARAGRA PH. THUS WE N OTE THAT THE COMMISSION EXPENSE IS NOT JUST THE PROVISION CREATED IN THE BOOKS OF ACCO UNTS , BUT PART OF IT WAS ACTUALLY PAID THROUGH BANKING CHANNEL . THEREFORE , IN OUR CONSIDERED VIEW THE SAME CANNOT BE DISALLOWED. 16.2 THE COMMISSION EXPENS ES CLASSIFIED UNDER THE HEAD AS PROVISION SHALL NOT CHANGE THE CHARACTER OF THE COMMISSION LIABILITY INCURRED BY THE ASSESSEE ONLY BECAUSE OF ITS NOMENCLATURE . 16.3 WE ALSO FIND IMPORTANT TO NOTE THAT THE OUTSTANDING BALANCE OF COMMISSION NOT PAID BY THE ASSESSEE WAS OFFERED TO TAX IN THE ASSESSMENT YEAR ITA NOS.1945 & 2169/AHD/2015 ASSTT. YEAR 2011 - 12 15 201 3 - 1 4 WHICH HAS BEEN DULY ACCEPTED BY THE R EVENUE. THUS ANY DISALLOWANCE IS MADE IN THE YEAR UNDER CONSIDERATION WILL LEAD TO DOUBLE ADDITION IN THE HANDS OF THE ASSESSEE. 16 .4 WITHOUT PREJUDICE TO THE ABOVE, IF WE ASSUME THAT THE LIABILITY FOR THE COMMISSION EXPENSES HAS NOT BEEN CRYSTALLIZED , THE N THE CORRESPONDING SALES SHOULD ALSO NOT BE TREATED AS INCOME. 16.5 WE ALSO NOTE THAT THE RATE OF COMMISSION WAS DECIDED BETWEEN THE ASSESSEE AND THE PARTY AS PER THE MUTUAL UNDERSTANDING AND NO WRITTEN AGREEMENT WAS ENTERED AT THE TIME OF SALE TO THE GPO . IN THE ABSENCE OF AGREEMENT , THERE WAS N O DOCUMENTARY EVIDENCE FOR TH E PAYMENT OF COMMISSION TILL THE LAST DAY OF THE RELEVANT ACCOUNTING YEAR. 16 .6 HOWEVER, WE NOTE THAT THERE WERE CERTAIN DOCUMENTARY PIECES OF EVIDENCE WHICH WERE MADE ON A LATER DATE BUT BEFORE THE FINALIZATION OF ACCOUNT WHICH PROVES THE CONTENTION OF ASSESSEE CORRECT , I.E. THE COMMISSION WAS DULY Q UANTIFIED . THESE DOCUMENTARY PIECES OF EVIDENCE WERE MADE IN CONSEQUENCE TO THE SETTLEMENT OF THE DISPUTE BETWEEN ASSESSEE, WPACL AND GPO WHERE THE NEW ARRANGEMENT OF PAYMENT OF SCHEDULE WAS MADE BETWEEN THE PARTIES. THESE DOCUMENTARY PIECES OF EVIDENCE ARE DETAILED AS UNDER: 1. AGREEMENT BETWEEN ASSESSEE AND WPACL DATED 14 TH JUNE 2011WHEREIN IT WAS MENTIONED THAT THE PENDING COMMISSION IS TO BE DIRECTLY PAID BY THE GPO TO WPACL. THE COPY OF THE AGREEMENT IS PLACE D ON PAGE NO 203 OF THE PAPER BOOK. THE COPY OF THE AGREEMENT WAS ALSO AVAILABLE WITH THE FILE OF AO. ITA NOS.1945 & 2169/AHD/2015 ASSTT. YEAR 2011 - 12 16 2. LETTERS WERE WRITTEN BY THE ASSESSEE TO KARUR V YSYA BANK LTD. WHEREIN IT WAS CLEARLY MENTIONED THAT COMMISSION IS TO BE PAID AT THE RATE OF 14.52% AND 15% OF INVOICE VALUE. THE COPIES OF LETTERS ARE PLACED ON PAGES 199 TO 20 2 OF THE PAPER BOOK. THE COPIES OF LETTERS WERE ALSO AVAILABLE WITH THE AO DURING ASSESSMENT PROCEEDINGS. THUS, BECAUSE OF THE ABOVE , IT IS CLEAR THAT THE PROVISION OF THE COMMISSION WAS MADE ON THE BASIS DOCUMENTARY B ASIS WHI CH WERE AVAILABLE AT THE TIME OF FINALIZING THE ACCOUNTS. HOWEVER, THESE DOCUMENTS WERE NOT AVAILABLE ON THE LAST DAY OF THE ACCOUNTING PERIOD. THUS THE ALLEGATION OF THE REVENUE THAT THE LD CIT - A ADMITTED THE ADDITIONAL DOCUMENTS IN CONTRAVENTION TO THE RULE 46A OF INCOME TAX RULE DOES NOT HOLD GOOD IN THE LIGHT OF ABOVE STATED DISCUSSION . 16 .7 NOW THE ONLY QUESTION ARISES WHETHER EXPENSES CLAIMED BY MAKING PROVISION CAN BE ALLOWED OR NOT. IN THIS REGARD , WE NOTE THAT PROVISIONS OF ACCOUNTI NG STANDARD 29 ISSUED BY THE IC AI, ALLOWS SUCH PROVISION. ALL THE THREE CONDITIONS SPECIFIED IN AS 29 ISSUED BY THE ICAI AS ENUMERATED BELOW: AN ENTERPRISE HAS A PRESENT OBLIGATION AS A RESULT OF A PAST EVENT. IT IS PROBABLE THAT AN OUTFLOW OF RESOURCES EMBODYING ECONOMIC BENEFITS WILL BE REQUIRED TO SETTLE THE OBLIGATION AND A RELIABLE ESTIMATE CAN BE MADE OF THE AMOUNT OF THE OBLIGATION. 16 .8 THE COMMISSION ESTIMATED BY THE ASSESSEE WAS SUBSEQUENTLY CONFIRMED AS EVIDENT FROM T HE DOCUMENTS DISCUSSED ABOVE. THERE WE CONCLUDE THAT THE COMMISSION EXPENSES CLAIMED BY THE ASSESSEE WERE NOT A MERE PROVISION AND CONTINGENT LIABILITY AS ALLEGED BY THE AO. ITA NOS.1945 & 2169/AHD/2015 ASSTT. YEAR 2011 - 12 17 16 .9 WE ALSO NOTE THAT THERE WAS NO INFIRMITY IN THE ORDER OF THE LD. CIT - A REGA RDING THE PAYMENT OF THE COMMISSION PAID TO OTHER PARTIES OTHER THAN WPACL . THEREFORE WE DO NOT WANT TO DIS T URB THE SAME. 17 . THE LD. DR HAS ALSO NOT ADVANCED ANY ARGUMENT ON THE AMOUNT OF COMMISSION PAID TO OTHER PARTIES. 18 . T HUS WE DO NOT FIND ANY REASON TO DISTURB THE FINDING OF THE LEARNE D C IT ( A ) . HENCE THE GROUND OF APPEAL OF THE R EVENUE IS DISMISSED. 19 . NOW C OMING TO THE ASSESSEE APPEAL IN ITA BEARING NO.1945/AHD/2015 FOR A.Y. 2011 - 12. 20 . R EGARDING THE PROVISION FOR THE INSTALLATION CHARGES, WE NOTE THAT THE ASSESSEE HAS MADE IT ON THE BASIS OF DETAIL PROVIDED BY ITS PROJECT DEPARTMENT. NONE OF THE AUTHORITIES BELOW HAS POINTED OUT ANY SPECIFIC DEFECT IN THE ESTIMATION MADE BY THE ASSESSEE. THE ASSESSEE ALSO CLAIMED B EFORE THE LEARNED CIT (A) TO CARRY OUT THE CERTAIN ACTIVITIES IN RELATION TO THE INSTALLATION OF THE MACHINES. SUCH ACTIVITIES ARE LISTED AS UNDER: A. TRANSPORTATION OF THE MACHINERIES TO THE SITE. B. CARRY OUT COMPLETE INSTALLATION OF THE MACHINERIES . C. PUT THE MACHINERIES INTO OPERABLE CONDITION. D. CARRY OUR TEST FUNCTIONING OF THE MACHINERIES INSTALLED. E. TAKE RESPONSIBILITY OF POST INSTALLATION SERVICES INCLUDING WARRANTEES FOR A PERIOD OF ONE YEAR. ITA NOS.1945 & 2169/AHD/2015 ASSTT. YEAR 2011 - 12 18 20 .1 IT IS ALSO UNDISPUTED FACT THAT THESE COMMISSION EXPENSES W ERE TO BE INCURRED BY THE ASSESSEE AGAINST THE SALES WHICH HAS BEEN OFFERED TO TAX. THEREFORE , THE EXPENSES AGAINST SUCH SALES NEED TO BE IDENTIFIED IN THE YEAR UNDER CONSIDERATION. 20 .2 WE ALSO FIND THAT THE H ON BLE SUPREME COURT IN THE CASE OF BHARAT EARTH MOVERS VS. CIT (112 TAXMAN 61) HAS HELD THAT THE PROVISIONS CREATED A R E ALLOWABLE EXPENSES AND ONLY PAYMENT IS TO BE MADE ON THE FUTURE DATE DOES NOT DISENTITLE THE ASSESSEE FROM THE DEDUCTION . THE RELEVANT EXTRACT OF THE CASE (SUP RA) IS AS UNDER: 6. SO IS THE VIEW TAKEN IN CALCUTTA CO. LTD. V. CIT [1959] 37 ITR 1 , WHEREIN THIS COURT HAS HELD THAT THE LIABILITY ON THE ASSESSEE HAVING BEEN IMPORTED , THE LIABILITY WOULD BE AN ACCRUED LIABILITY AND WOULD NOT CONVERT INTO A CONDITIONAL ONE MERELY BECAUSE THE LIABILITY WAS TO BE DISCHARGED AT A FUTURE DATE. THERE MAY BE SOME DIFFICULTY IN THE ESTIMATION THEREOF BUT THAT WOULD NOT CONVERT THE ACC RUED LIABILITY INTO A CONDITIONAL ONE; IT WAS ALWAYS OPEN TO THE TAX AUTHORITIES CONCERNED TO ARRIVE AT A PROPER ESTIMATE OF THE LIABILITY HAVING REGARD TO ALL THE CIRCUMSTANCES OF THE CASE. 20 .3 THE REASONING AS DISCUSSED ABOVE IN THE GROUND OF REVENUE S APPEAL, WILL BE APPLIED IN THIS ISSUE AS WELL . 20 .4 THEREFORE, WE HOLD THAT THE ASSESSEE IS ENTITLE D FOR THE DEDUCTION OF THE PROVISIONS FOR THE INSTALLATION CHARGES. THUS WE REVERSE THE ORDER OF AUTHORITIES BELOW. HENCE THE GROUND OF APPEAL OF THE ASSESSEE IS ALLOWED. 20 .5 W E ALSO NOTE THAT A S THE DEAL OF THE ASSESSEE WITH GPO GOT CANCELED, THEREFORE THE ASSESSEE HAS WRITTEN O F F THE BAD DEBTS AFTER ADJUSTING THE AMOUNT PAYABLE FOR THE COMMISSION AND THE INSTALLATION CHARGES. THE ASSESSEE MADE SUCH ADJUSTMENT IN ITS BOOKS OF ACCOUNTS IN THE ASSESSMENT YEAR 2013 - 14 AS EVIDENT FROM THE COPY OF THE LEDGER PLAC ED ON PAGES 148 OF THE PAPER BOOK. ITA NOS.1945 & 2169/AHD/2015 ASSTT. YEAR 2011 - 12 19 20.6 ALL THESE DETAILS WERE VERY MUCH AVAILABLE BEFORE THE AUTHORITIES BELOW DURING THE PROCEEDINGS BEFORE THEM. NONE OF THE AUTHORITY HAS POINTED OUT ANY DEFECT IN SUCH DETAILS FILED BY THE ASSESSEE. 21 . IN THE RESULT , THE APPEAL OF THE ASSESSEE IS ALLOWED , AND THE APPEAL OF THE REVENUE IS DISMISSED . O RDER PRONOUNCED IN THE COURT ON 30 /01 / 2019 AT AHMEDABAD. - SD - - SD - (MS MADHUMITA ROY ) (WASEEM AHMED) JUDICIAL MEMBER ACCOUNTANT MEMBER (TRUE COPY) A HMEDABAD; DATED 30 / 01/2019 MANISH / COPY OF THE ORDER FORWARDED TO : / BY ORDER, / ( DY./ASSTT.REGISTRAR) , / ITAT, AHMEDABAD 1. / THE APPELLANT 2. / THE RESPONDENT. 3. / CONCERNED CIT 4. ( ) / THE CIT(A) 5. , / DR, ITAT, 6. / GUARD FILE .