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It is fit case for remand if there are un-reconciled entries of Annual Information Report & AO must also examine applicability of relevant CBDT Instruction: ITAT

2019-TIOL-1480-ITAT-MUM

IN THE INCOME TAX APPELLATE TRIBUNAL
BENCH ‘K’ MUMBAI

ITA No.3975/Mum/2012
Assessment Year: 2007-08

CA INDIA TECHNOLOGIES PVT LTD
GROUND FLOOR, VIBGYOR TOWER, PLOT C-62
G-BLOCK, BANDRA KURLA COMPLEX
BANDRA (EAST), MUMBAI – 400051
PAN NO: AAACC4971D

Vs

ASSISTANT COMMISSIONER OF INCOME TAX
RANGE 10(1), AAYAKAR BHAVAN
M K ROAD, MUMBAI – 400020

Saktijit Dey, JM & N K Pradhan, AM

Date of Hearing: April 25, 2019
Date of Decision: July 22, 2019

Appellant Rep by: Mr Aliasger Rampuravala, AR
Respondent Rep by: 
Mr Ajit Pal Singh Daia, JCIT

Income Tax – Advance billings – CBDT 05/2013 – Un- reconciled entries

THE assessee had filed its return for the relevant AY. During the course of assessment proceedings, the AO observed that as per Schedule 8 (current liabilities) to the balance sheet a sum of Rs 34.70 cr is shown as advance billing. Based on the findings for AY 2006-07, which were upheld by the Dispute Resolution Panel (DRP), the AO reduced the sum from the advance billings and brought to tax the net amount of Rs 6.09 cr. Subsequently, the AO received certain information from the AIR and as per the information the AO asked the assessee to reconcile transactions amounting to Rs.1.10 cr being entries relating to sales, interest income and service income and demonstrate that the said receipts/income were offered to tax by the assessee during the relevant AY. However, entries totalling to Rs 14.31 lacs remained allegedly un-reconciled. It was found by the AO found in spite of being given opportunity to explain the information as per AIR, the assessee failed to do so in respect of an amount of Rs 14.31 lacs. Therefore, the AO made an addition of Rs 14.31 lacs on the ground that the assessee failed to prove that the certain amount which was disclosed by it in its return. On appeal, the CIT(A) confirmed the addition.

On appeal, the Tribunal held that,

Whether it is a fit case for remand if there are un-reconciled entries of Annual Information Report & AO is required to consider application of CBDT Instruction 05/2013 – YES: ITAT

++ in so far as addition on account of alleged un-reconciled entries of Annual Information Report is concerned, the AO finds the assessee has not duly accounted for the sum of Rs 14.31 lacs and offered it to tax, whereas the assessee argues it has been duly accounted for and offered to tax. Thus, Tribunal is of the considered view the factual matter needs verification at the level of the AO for ascertaining the facts. Therefore, this Tribunal set aside the order of the CIT(A) on this issue and restore the matter to the file of the AO to make an order afresh following the Instruction of CBDT 05/2013, after giving reasonable opportunity of being heard to the assessee and also direct the assessee to file the relevant documents/evidence before the AO.

Assessee’s appeal partly allowed

(….Editor’s Note: issue raised in appeal in respect of advance billings & deduction of royalty are not discussed in this headnotes….)

ORDER

Per: N K Pradhan:

This is an appeal filed by the assessee. The relevant assessment year is 2007-08. The appeal is directed against the order of the Commissioner of Income Tax (Appeals)-15, Mumbai [in short ‘CIT(A)’] and arises out of the assessment completed u/s 143(3)(ii) of the Income Tax Act 1961, (the ‘Act’).

2. The ground of appeal No. 1.1 & 1.2

1.1 On the facts and circumstances of the case and in law, the Ld. CIT(A) erred in confirming the additions amounting to Rs.6,09,38,321 made by the Assessing Officer on account of advance billings without appreciating the fact that the said amount has not accrued as income during the year under consideration.

1.2 The Appellant prays that the change in the method of accounting adopted by the Appellant since AY 2004-05 is a bonafide change and as per the law, the same be accepted and the addition of Rs.6,09,38,321 to the total income be deleted.

2.1 During the course of assessment proceedings, the Assessing Officer (AO) observed that as per Schedule 8 (current liabilities) to the balance sheet as on 31.03.2007, a sum of Rs.34,70,15,359/- is shown as advance billing. Based on the findings for AY 2006-07, which were upheld by the Dispute Resolution Panel (DRP) in its order dated 05.08.2010, the AO reduced the sum of Rs.28,60,77,038/- from the advance billings of Rs.32,70,15,359/- and brought to tax the net amount of Rs.6,09,38,321/-.

In appeal, the Ld. CIT(A) confirmed the above addition made by the AO.

2.2 Having heard the rival submissions and perused the relevant materials on record, we find that the above issue is decided against the assessee by the order dated 07.10.2015 of the ITAT ‘K’ Bench, Mumbai in assessee’s own case for AY 2004-05 in ITA No. 8376/Mum/2011 and the same reads as under :

“v. The accrual of income must be real. What has really accrued to the assessee has to be found out and what has accrued must be considered from the point of view of real income taking the probability or improbability of realisation in a realistic manner. In the matter of S. K.G.Sugar Ltd.(96 ITR 194), the Hon’ble Patna High Court has laid down following general principles with regard to accrual of liability are:

(1) In a mercantile system of accounting actual cash receipt of income is not necessary for the purpose of taxing a particular item as income; it is sufficient if the income has accrued during the period in question. Similarly, if the liability for a particular sum has been incurred during the accounting year and if otherwise the sum is allowable as a revenue expense then whether the sum has been actually paid or not is immaterial and the liability so incurred has got to be allowed as a revenue expense.

(2) If, after the accrual of the income or incurring of the liability, any party forgoes the sum by way of gift, charity or the like and voluntarily, which cannot be characterised as a remission on grounds of commercial expediency, then such forgoing cannot affect the accrual of the income for the purpose of carrying on the business and the liability so incurred cannot be obliterated by such forgoing

(3) Mere book entries are not decisive of the matter. What has to be seen and found out is the effect of the forgoing in law on the accrual of the income or the incurring of the liability or expenditure

3.b. In the case under appeal, the receipt of income as well as accrual took place as soon as the sale proceeds of software were received and not when the life span of software would come to an end. Therefore, spreading the income over the licence-period of the software, in our opinion, was not justified. The agreement was for up-gradation and improvisation of software – it was not warranty. Even in the matter of warranty, after the case of Rotork Controls India P. Ltd.(314 ITR 62) = 2009-TIOL-64-SC-IT things have become very clear-it talks of historical trend. During the course of hearing before us. the assessee had not given any indication about the expenditure incurred by it for improving and upgrading the software during the remaining period of licence. In short, the argument of matching the revenue v/s cost is missing. It our opinion, the method adopted by it would fall in the category which ‘tends to distort the picture for the purpose of taxable income of the assessee’.

3.c. Now, we would like to discuss the cases relied upon by the assessee. We find that in the case of Mahindra Holding and Resorts(supra) it was held that the assessee had to contribute to its acquiring or arising by rendering services or otherwise the debt was created in favour of the assessee, that it could not be said that the assessee had fully contributed to its accruing by rendering services, that it had a continuing obligation to provide accommodation to the member for one week every year till the currency of membership. We find that in the case under appeal there was tenure of license/product but there was no certainty that in every subsequent year some determinate service had to be provided by it, that there was no determined/committed expenditure which the assessee was required to incur in the future years towards the corresponding share of revenue, that the indeterminate event of providing of updates and services as and when the they were developed which had been in keeping with the industrial norm. The assessee had no right to postpone the revenue. Inspite of adequate opportunitie, the assessee had not filed any facts before the FAA or us, as stated earlier, in that regard. In the case of Sify E-Learning Ltd.(supra),it was found that the assessee was following project completion method, whereas in the case under appeal the assessee had changed method of accounting deferring more than 75% of its revenue to future period perpetually. Such a change, in our opinion, is not a bona fide change. With regard to other cases relied upon we find that the FAA has thoroughly distinguished them and has given a finding that facts of the case under consideration are different from those cases. We agree with him. Therefore, we hold that the order of the F AA does not suffer from any legal or factual infirmity. Confirming, his order, we decide ground no.2.1.against the assessee.”

2.3 Facts being identical, we follow the above order of the Co-ordinate Bench, and dismiss the ground No. 1.1 and 1.2 of the appeal.

3. The ground of appeal No. 1.3

1.3 Without prejudice to the grounds number 1.1 and 1.2 above, the Ld. CIT(A) erred in facts and circumstances of the case and in law in not allowing the deduction for royalties amounting to Rs.1,82,81,496 pertaining to the above mentioned advanced billing of Rs.6,09,38,321.

3.1 We find that the above issue is decided in favour of the assessee by the order dated 23.12.2016 of the ITAT ‘K’ Bench, Mumbai in assessee’s own case for AY 2006-07 in ITA No. 8218/M/2010 and the same reads as under:

“4. After considering the aforesaid submissions and on perusal of the impugned order, we find the assessee’s contention that revenue on account of advance billing should be spread over for a period of time has been rejected by the AO which has been confirmed by the Tribunal also. Once that is so, then contention of the assessee that ‘royalty’ which is payable on such advance billing in accordance with the agreement, should also consequently be allowed in this year only. The DRP has acknowledged this fact and has directed that if the assessee finally accepts the assessability of entire billing amount as revenue in the current year, then the assessee would be entitled for 30% deduction on account of royalty. Thus, AO is directed to allow the claim of deduction of royalty in this year in accordance with law. Thus, Ground No. 7 raised by the assessee is treated as partly allowed for statistical purposes.”

3.2 Facts being identical, we follow the above order of the Co-ordinate Bench in assessee’s own case and direct the AO to allow the claim of deduction of royalty as indicated above.

Thus the ground of appeal No. 1.3 is allowed for statistical purposes.

4. The 2nd ground of appeal

2.1 On the facts and circumstances of the case and in law the ld. CIT(A) erred in confirming the addition of Rs.14,31,988 made by the Assessing Officer on account of alleged un-reconciled entries of Annual Information Report without appreciating the fact that the same has been duly considered as income by the Appellant and thus, offered to tax in the year under consideration, and accordingly, such addition results in double taxation of the said amount.

4.1 During the course of assessment proceedings, the AO found that in spite of being given opportunity to explain the information as per AIR, the assessee failed to do so in respect of an amount of Rs.14,31,988/-, details of which are as under :

Txn dateFiler nameAmt. in Rs.Description
27.06.2006Integrix (I) P. Ltd.80000Fee for professional/technical services
24.03.2007Celerity Networks Pvt. Ltd.67344Fee for professional/technical services
29.01.2007IQ Resource Pvt. Ltd.12245Contractor
29.03.2007Secures Meters Ltd.25869-do-
31.03.2007-do-25869-do-
12.01.2007Vertex Customers Services India Pvt. Ltd.113419-do-
31.03.2007Integrix (I) P Ltd.968070-do-
31.12.2006HCL Comnet Systems & Services Ltd.54367-do-
15.05.2006IQ Resources Pvt. Ltd.11651-do-
27.07.2006-do-12245-do-
-do--do-12245-do-
-do--do-12245-do-
21.06.2006-do-11929-do-
29.01.2007-do-12245-do-
-do--do-12245-do-

The AO made an addition of Rs.14,31,988/- on the ground that the assessee failed to prove that the above amount was disclosed by it in its return of income.

In appeal, the Ld. CIT(A) confirmed the above addition made by the AO.

4.2 Before us, the Ld. counsel of the assessee submits that during the course of assessment proceedings, the AO provided certain AIR details to the assessee. As per the said AIR details, the AO asked the assessee to reconcile transactions amounting to Rs.1,10,07,792/- being entries relating to sales, interest income and service income and demonstrate that the said receipts/income were offered to tax by the assessee during the year under consideration. It is stated that substantial part of these entries were reconciled and proved to the satisfaction of the AO that income has been offered to tax. However, entries totalling to Rs.14,31,988/- remained allegedly un-reconciled. However, it is submitted by him that since it has duly accounted such income and offered it to tax, the said addition of Rs.14,31,988/- amounts to double taxation and merits to be deleted.

4.3 On the other hand, the Ld. DR submits that since the assessee failed to prove that the above sum of Rs.14,31,988/- was disclosed by it in its return of income, the CIT(A) has rightly confirmed the addition.

4.4 We have heard the rival submissions and perused the relevant materials on record. CBDT vide Instruction No. 05/2013 dated 8th of July, 2013 has stated that:-

2. The Hon’ble Delhi High Court vide its judgement in the case ‘Court On its Own Motion vs. UOI and Ors’ (W.P. (C) 2659/2012 & W.F. (C) 5443/2012 dated 14.03.2013) = 2013-TIOL-207-HC-DEL-IT has issued seven mandamuses for necessary action by Income-tax Department, one of which is regarding the issue of non-credit of TDS to the taxpayer due to TDS mismatch despite the assesse furnishing before the assessing officer, TDS certificate issued by the deductor.

3. In view of the order of the Hon’ble Delhi High Court (reference: Para 50 of the order), it has been decided by the Board that when an assessee approaches the Assessing Officer with requisite details and particulars in the form of TDS certificate as an evidence against any mismatched amount, the said Assessing Officer will verify whether or not the deductor has made payment of the TDS in the Government Account and if the payment has been made, credit of the same should be given to the assessee. However, the Assessing Officer is at liberty to ascertain and verify the true and correct position about the TDS certificate. Such verification may be made with the relevant AO(TDS). The AO(TDS) may also, if deemed necessary, issue a notice to the deductor to compel him to file correction statement as per the procedure laid down. In this regard, the AO(TDS) may invoke all the powers and authority as available to him/her as per the Income tax Act. If required and necessary, he/she can obtain prior approval of the Director or Commissioner of Income tax. The authorities can also examine whether general approval can be given.

4. Thus, the manner laid down by the Hon’ble HC in the above mandamus is a method of due verification. This may be brought to notice of all Officers working under your jurisdiction for compliance.

The controversy in the instant case is that the AO finds that the assessee has not duly accounted for the above sum of Rs.14,31,988/- and offered it to tax, whereas the assessee argues that it has been duly accounted for and offered to tax. We are of the considered view that the above factual matter needs verification at the level of the AO for ascertaining the facts. Therefore, we set aside the order of the Ld. CIT(A) on the above issue and restore the matter to the file of the AO to make an order afresh following the above Instruction of CBDT, after giving reasonable opportunity of being heard to the assessee. We direct the assessee to file the relevant documents/evidence before the AO. Thus the 2nd ground of appeal is allowed for statistical purposes. As the matter has been restored to the file of the AO, we are not adverting to the case-laws relied on by the Ld. counsel.

5. It is submitted by the Ld. counsel of the assessee that the 3rd and 4th ground of appeal are infructuous as the AO has given relief while giving effect to the order of the Ld. CIT(A). Having gone through the matter, we agree with the above submission and dismiss the 3rd and 4th ground of appeal as infructuous.

6. In the result, the appeal is partly allowed.

(Order pronounced in the open Court on 22.07.2019)

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