High Court Of Madras
Empee Distilleries Ltd. vs. Assistant Commissioner Of Income Tax
Section 37(1), 260A
Asst. Year 1998-99, 1999-2000, 2001-02 & 2002-03
K. Raviraja Pandian & M.M. Sundresh, JJ.
Tax Case (Appeal) Nos. 560 to 563 of 2009 and Misc. Petn. No. 1 of 2009
2nd November, 2009
Counsel Appeared :
J. Balachandran for S. Sridhar, for the Appellant
JUDGMENT
K. RAVIRAJA PANDIAN, J. :
These appeals are filed against the order of the Tribunal, Madras ‘A’ Bench, dt. 29th Sept., 2008 in ITA Nos. 627, 628, 629 and 630/Mad/ 2007 respectively relating to the asst. yrs. 1998-99, 19992000, 2001-02 and 2002-03 respectively.
2. Learned counsel Mr. Balachandran appearing for the appellant submits that the following questions of law would arise out of the common order and has advanced his argument with reference to the questions of law, which are extracted below, though several other questions of law have been formulated in the memorandum of grounds of appeals :
“1. Whether the Tribunal is correct in law in concluding that the partial sustenance of the disallowance of the claim of the purchase of old bottles used in the business of the appellant even though there were no materials available on record to fortify the said partial disallowance ?
Whether the Tribunal is correct in law in sustaining the action of the respondent in disallowing the interest on certain loans taken on leasing transactions held to be fictitious in spite of the fact of using the amount of loan in the business of the appellant undisputedly which would be eligible for making a claim of interest payments in relation thereto as a deduction in the computation of taxable total income ?
Whether the Tribunal is correct in law in remitting the issue of assessment of non-compete fee received in the transaction of hiving off the brewery unit even though the decision rendered by them in the case of the managing director on the identical circumstances cited in support would fortify the stand of the appellant ?”
3. The facts and issues are common in all these cases. The facts relevant to the asst. yr. 1998-99 are stated below by taking it as a typical case for the sake of discussion : The assessee is a manufacturer of IMFL. In the assessment framed on 28th March, 2006 in terms of s. 153A r/w s. 143(3) of the Act consequent to the search conducted on 25th Nov., 2003, an addition of Rs. 5,29,34,470 being the purchase inflation of old bottles was made by the AO. According to him, the study of seized material showed that the purchase of old bottles was inflated in several manifolds by manipulating the accounts so as to enable the assessee to understate the profit of its business. The AO has given reason to the effect that the assessee had made entries in the books of accounts as to the purchase of old bottles but those entries were not proved as genuine with relevant materials. The AO has also disallowed a sum of Rs. 14,82,288 representing interest component on certain lease transactions, which was found by him as bogus. The claim of non-competing fee was also rejected. The first appeal filed by the assessee was disposed of on 15th Dec., 2006, wherein the CIT(A) after taking into consideration of the offer made by the managing director for a sum of Rs. 74,50,000 for taxation and also by approving the finding that there was a huge inflation of purchase expenditure and having found that the exact quantum could not be arrived at, disallowed 10 per cent of the purchase expenditure by saying that would meet the ends of justice. In respect of the disallowance of interest component on lease transaction, the order of the AO has been confirmed. In respect of the non-competing fee, though it was rejected by the AO, the CIT(A) has granted the relief in respect of the non-competing fee paid to the managing director, however rejected the non-competing fee stated to have been given in favour of the company assessee. The assessee and the Department carried the matter on appeal to the Tribunal. The Tribunal by reason of the impugned order confirmed the issue in respect of 10 per cent disallowance of purchase expenditure and disallowance of interest payment on lease transaction, however in respect of the relief granted for non-competing fee, remitted the matter to the AO to reconsider the issue with relevant materials. The correctness of the said order is canvassed in this appeal.
4. Mr. Balachandran, learned counsel appearing for the appellant has submitted that the order of the Tribunal cannot be legally sustainable with reference to the questions of law framed.
5. We heard the argument of the learned counsel appearing for the appellant and perused the material on record.
6. In respect of the first question of law, the inflation of the purchase expenditure of the old bottles, though for the sake of claim, the relief is disputed before the authorities, the fact remains that such huge inflation has been accepted by the managing director of the company, who offered a sum of Rs. 74,50,000 for taxation. It is also found proved by the authorities below that a very huge purchase of old bottles has been made by the assessee through their employees. However, when questioned, the employees have categorically admitted before the authorities that they were forced to sign in the dotted lines and as such there is no proof for such huge purchase forthcoming from the assessee. The proof adduced has been rejected as stated above. The CIT(A) has rejected the claim of wastage of 4.50 per cent as in the higher side, however, found with the available material that it was not possible to quantify the purchase inflation of old bottles with accurate precision the disallowance of 10 per cent would meet the ends of justice, has granted the relief in favour of the assessee barring the 10 per cent of disallowance. In respect of the claim of interest payment in a sum of Rs. 14,82,282, it was the case of the assessee that the assessee entered into the agreement with Lord Krishna Bank for purchase of machineries and leasing out to the assessees and the interest amount is paid to the Lord Krishna Bank. The authorities have found that in respect of one machinery, the transaction was bogus and no such machinery has been purchased and leased out to the assessee and the amount of interest stated to have been paid in respect of that machinery in a sum of Rs. 14,82,288 has not been proved and the same was rejected. However, before the CIT(A), it was contended that though the machinery has not been purchased the said amount has been used for the business of the assessee and hence the interest component has to be allowed. Even for this claim, the assessee was not able to produce any material and on that score the CIT(A) rejected the claim.
7. In respect of the non-competing fee in a sum of Rs. 12 crores and Rs. 7 crores to the company and to the managing director, the CIT(A) has given the relief in respect of the amount paid to the managing director on the ground that if at all any person, who would compete with the assessee is only managing director. As the company would act only through the directors of the company, the non-competing fee paid in favour of the company claimed as reduction has been rejected. The Tribunal has remitted back the matter to the authority below on the premise that the CIT(A) has granted the relief on assumption that the managing director alone would compete with the assessee if at all and that assumption has been reached without having any material before him. In order to have a clear picture of the issue, the matter was remitted back to the authorities to reconsider the issue with relevant materials. On the total analysis of the facts, we find that the assessee had miserably failed to make out a case for entertaining these appeals, particularly, with reference to the questions of law referred to above in this order. The appeals are therefore dismissed.
[Citation : 324 ITR 82]
