2018 (10) TMI 2052 - AT - Income Tax

Allowability of Periodic maintenance expenses - disallowance of provision as no expenditure was incurred during the year under consideration therefore such provision cannot be allowed - AO disallowed the provision made by the assessee for period maintenance debited to the profit and loss account - HELD THAT - In the case of Ashok Buildcon Ltd 2015 (10) TMI 181 - ITAT PUNE the Pune Bench of ITAT held that it is not in dispute that the assessee is executing fixed price contract which means that the contractor has agreed to a fixed contract price or rate in some cases subject to cost escalation prices. As per AS-7 the assessee is entitled to make provision for foreseeable losses. In the case of Om Metals Minerals (P) Ltd. 2015 (4) TMI 478 - RAJASTHAN HIGH COURT upheld the findings of the Tribunal that assessee made provision of supplies for possible loss due to deduction made by Govt for not keeping supplies to satisfaction of department and further entire amount was included by the assessee in total receipts and once entire receipts had been shown expenditure ought to have been allowed. We are in agreement with the assessee that in the mercantile accounting system the expenditure to be absorbed on periodic basis. In the given case the expenditure to be incurred after 5 years and assessee cannot charge to P L account whole 5 years expenditure on year 5. Rather it has to charge to P L A/c every year proportionate to the year of liability. Therefore we set aside the order of CIT(A) and allow the provision made by the Assessee towards periodic maintenance Disallowance pertaining to employees contribution of PF ESI - HELD THAT - Hon ble Delhi High Court in CIT VS. Aimil Ltd. Ors 2009 (12) TMI 38 - DELHI HIGH COURT has held that if the employees share of contribution is paid before the due date of filing the return u/s 139(1) of the Income-tax Act 1961 then no disallowance can be made. Therefore we delete the disallowance made by the AO u/s 36(1) (va) rws 2(24)(x) of the Act. This is also the consistent view of the Hyderabad Benches.

Summary

1. ISSUES PRESENTED and CONSIDERED

- Whether the provision of Rs. 5,90,50,000/- (later Rs. 5,93,03,224/-) made by the assessee towards periodic maintenance expenses, which were not actually incurred during the year under consideration, is allowable as a deduction under the Income-tax Act, 1961?

- Whether the disallowance of Rs. 2,53,224/- paid as employees' contribution towards Provident Fund (PF) and Employees' State Insurance (ESI) on the ground of belated payment under section 36(1)(va) read with section 2(24)(x) of the Act is justified?

2. ISSUE-WISE DETAILED ANALYSIS

Issue 1: Allowability of Provision for Periodic Maintenance Expenses

Relevant legal framework and precedents: The case involves interpretation of the provisions relating to deduction of expenses under the Income-tax Act, particularly the principles governing provisions and accrual accounting. The assessee relied on the Supreme Court decisions in Calcutta Co. Ltd. v. CIT [1959] and CIT v. Burhwal Sugar Mills Co. Ltd. [1971], which discuss the treatment of provisions and expenses in accounts for tax purposes. Additionally, the assessee cited decisions such as Ashok Buildcon Ltd. (61 Taxman 330) and Om Metals & Mineral (60 Taxman 448), which support the allowance of provisions in certain circumstances under mercantile accounting.

Court's interpretation and reasoning: The Assessing Officer (AO) disallowed the provision on the ground that no actual expenditure was incurred during the year and that the provision represented a mere future liability or estimate, which cannot be allowed as a deduction. The AO also held that the case law relied upon by the assessee was not applicable to the facts.

The Commissioner of Income Tax (Appeals) [CIT(A)] upheld the AO's order, noting that the assessee failed to furnish necessary evidence during the appellate proceedings to substantiate the claim.

On appeal to the Tribunal, the assessee argued that under the concession agreement with the National Highways Authority of India (NHAI), major maintenance work is required every five years, involving significant expenditure. The wear and tear occurs throughout the period, and hence the provision was created on a proportionate basis in accordance with the accrual system of accounting.

The Tribunal examined the precedents cited, particularly Ashok Buildcon Ltd., where it was held that under fixed-price contracts, provisions for foreseeable losses are permissible as per Accounting Standard (AS) 7. Similarly, in Om Metals & Mineral, the court upheld the allowance of provisions for anticipated losses or expenses when the total receipts had been accounted for.

Key evidence and findings: The assessee's contract stipulated a maintenance obligation every five years, and the provision was created to spread the expense over the relevant period rather than charging the entire amount in the year of expenditure. The AO's rejection was primarily due to the absence of actual expenditure during the year and the lack of ledger details.

Application of law to facts: The Tribunal applied the principle of mercantile accounting, recognizing that expenses should be matched with the period in which they accrue rather than when paid. Since the maintenance obligation was contractual and the expenditure was foreseeable, the provision was a legitimate charge to the Profit & Loss account on a proportionate basis.

Treatment of competing arguments: The AO and CIT(A) emphasized the absence of actual expenditure and documentation, treating the provision as an uncertain future liability. The assessee countered by emphasizing the contractual obligation and the accounting principles mandating accrual-based recognition of expenses. The Tribunal favored the latter, relying on established case law supporting the allowance of provisions under such circumstances.

Conclusions: The Tribunal set aside the orders of the AO and CIT(A) and allowed the provision for periodic maintenance expenses, holding that the provision was allowable under the accrual system of accounting and consistent with relevant judicial precedents.

Issue 2: Disallowance of Employees' Contribution towards PF & ESI

Relevant legal framework and precedents: Section 36(1)(va) read with section 2(24)(x) of the Income-tax Act deals with disallowance of employer's contribution to PF and ESI if not paid within the prescribed due dates. The key question is whether delayed payment of employees' contribution attracts disallowance.

Court's interpretation and reasoning: The AO disallowed Rs. 2,53,224/- on the ground that the employees' contribution was paid belatedly beyond the due date prescribed under the PF Act. The CIT(A) confirmed this disallowance.

The Tribunal referred to the decision of the Delhi High Court in CIT v. Aimil Ltd. & Ors. [(2010) 321 ITR 508 (Del)], which held that if the employees' share of contribution is paid before filing the income tax return under section 139(1), no disallowance can be made under section 36(1)(va). The Tribunal also noted that this view is consistent with the position taken by the Hyderabad Benches.

Key evidence and findings: The employees' contribution was paid belatedly with respect to the PF Act due date but was paid before filing the return of income.

Application of law to facts: Applying the precedent, since the payment was made before the filing of the return, the disallowance under section 36(1)(va) was not justified.

Treatment of competing arguments: The Revenue relied on the statutory due date under the PF Act to justify disallowance, whereas the assessee relied on judicial precedents allowing deduction if payment is made before filing the return. The Tribunal accepted the latter.

Conclusions: The Tribunal deleted the disallowance of Rs. 2,53,224/- relating to employees' contribution towards PF and ESI.

3. SIGNIFICANT HOLDINGS

- "In the mercantile accounting system, the expenditure to be absorbed on periodic basis. In the given case, the expenditure to be incurred after 5 years and assessee cannot charge to P&L account whole 5 years expenditure on year 5. Rather, it has to charge to P&L A/c every year proportionate to the year of liability."

- The Tribunal held that provisions for foreseeable liabilities, such as periodic maintenance under a fixed contract, are allowable deductions under the Income-tax Act, consistent with the principles laid down in Ashok Buildcon Ltd. and Om Metals & Mineral.

- Regarding employees' contribution to PF and ESI, the Tribunal adopted the principle from CIT v. Aimil Ltd. that if the employees' share is paid before filing the return under section 139(1), disallowance under section 36(1)(va) is not warranted.

- Final determinations:

i) The provision for periodic maintenance expenses of Rs. 5,93,03,224/- was allowed as a legitimate deduction.

ii) The disallowance of Rs. 2,53,224/- on account of belated payment of employees' contribution to PF and ESI was deleted.