2023 (4) TMI 996 - AT - Income Tax

Validity of notice u/s 143(2) - transfer of jurisdiction from ACIT to JCIT - notice u/s. 143(2) was issued by the ld. ACIT, Business Circle-7, Chennai, but the assessment order is signed by the ld. JCIT, Range-VII, Chennai - HELD THAT - As there remains no dispute to the fact that the jurisdiction was transferred from ACIT to JCIT vide order dated 26.08.2013 and therefore, notice issued u/s.143(2) of the Act is a valid notice, issued by the Assessing Officer having jurisdiction over the assessee and similarly the assessment proceedings has also been carried out by the Assessing Officer having jurisdiction over the assessee. Therefore all the additional grounds raised by the assessee challenging the validity of assessment proceedings are dismissed. Addition of proportionate interest payment on borrowed funds, commission payment, sale promotion disallowance, and travelling expenses issues relating to disallowance of all these expenses is hereby restored to the file of the ld. CIT(A), who shall call for remand report on all these issues for which a fair opportunity shall be provided to the assessee, who shall not take unnecessary adjournments unless otherwise required for and furnish necessary details and in absence thereby, ld. CIT(A) can decide in accordance with law by way of passing a speaking order. Expenses claimed towards service tax penalty the disallowance is confirmed as alleged sum being penalty in nature is not allowable as expenditure u/s. 37. Additional grounds raised by the assessee are dismissed and the grounds raised on merits are partly allowed for statistical purposes.

Issues Involved:

1. Validity of assessment proceedings.
2. Disallowance of proportionate interest payment.
3. Disallowance of commission payment.
4. Disallowance of sales promotion expenses.
5. Disallowance of travelling expenses.
6. Disallowance of service tax penalty.

Summary:

1. Validity of Assessment Proceedings:
The assessee challenged the assessment proceedings on the grounds that the notice under Section 143(2) was issued by the Assistant Commissioner of Income Tax (ACIT), but the assessment order was finalized by the Joint Commissioner of Income Tax (JCIT) without an order under Section 120(4)(b) conferring jurisdiction. The Tribunal dismissed these additional grounds, noting that jurisdiction was transferred from ACIT to JCIT via a notification dated 26.08.2013, making the notice and assessment valid.

2. Disallowance of Proportionate Interest Payment:
The Assessing Officer (AO) disallowed interest payments on borrowed funds, noting that the assessee had borrowed at a higher interest rate and lent at a lower rate. The Tribunal found that the Commissioner of Income Tax (Appeals) [CIT(A)] did not provide specific reasoning on this issue and remanded it back to the CIT(A) for further examination, requiring details from preceding and subsequent years to support the assessee's claim.

3. Disallowance of Commission Payment:
The AO disallowed commission payments due to non-deduction of tax at source under Section 40(a)(ia). The Tribunal noted that the CIT(A) did not verify whether the partners had disclosed the commission income and paid taxes. The issue was remanded to the CIT(A) for verification. For commission paid to Ms. Anusya Jain, the Tribunal found that the assessee failed to provide sufficient details and remanded the issue for further examination.

4. Disallowance of Sales Promotion Expenses:
The AO disallowed sales promotion expenses, suspecting that the purchases of gold and diamond jewelry were for personal use. The Tribunal noted that the CIT(A) did not provide specific findings and remanded the issue for further examination, allowing the assessee to provide additional evidence.

5. Disallowance of Travelling Expenses:
The AO disallowed travelling expenses, questioning the business purpose of foreign travels. The Tribunal remanded the issue to the CIT(A) for further examination, allowing the assessee to provide additional evidence.

6. Disallowance of Service Tax Penalty:
The Tribunal confirmed the disallowance of service tax penalty of Rs. 20,702/-, holding that it is not allowable as an expenditure under Section 37 of the Act.

Conclusion:
The Tribunal dismissed the additional grounds challenging the validity of assessment proceedings and partly allowed the grounds on merits for statistical purposes, remanding the issues of disallowance of interest payment, commission payment, sales promotion expenses, and travelling expenses to the CIT(A) for further examination. The disallowance of service tax penalty was confirmed.

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