$~14 to 17
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ Date of Decision: 30.09.2019
+ ITA 519/2019
M/S JBM INDUSTRIES LTD ..... Appellant
Through: Mr. R. Santhanam with Mr. Arujun
Prasad Sinha, Advs.
versus
COMMISSIONER OF INCOME TAX NEW DELHI..... Respondent
Through: Ms. Adeeba Mujahid for Mr. Ajit
Sharma, Advs.
+ ITA 520/2019
M/S JBM INDUSTRIES LTD ..... Appellant
Through: Mr. R. Santhanam with Mr. Arujun
Prasad Sinha, Advs.
versus
COMMISSIONER OF INCOME TAX NEW DELHI ..... Respondent
Through: Ms. Adeeba Mujahid for Mr. Ajit
Sharma, Advs
+ ITA 524/2019
M/S JBM INDUSTRIES LTD ..... Appellant
Through: Mr. R. Santhanam with Mr. Arujun
Prasad Sinha, Advs.
versus
ITA 519/2019 & connected matters Page 1 of 17
COMMISSIONER OF INCOME TAX NEW DELHI ..... Respondent
Through: Ms. Adeeba Mujahid for Mr. Ajit
Sharma, Advs
+ ITA 525/2019
M/S JBM INDUSTRIES LTD ..... Appellant
Through: Mr. R. Santhanam with Mr. Arujun
Prasad Sinha, Advs.
versus
COMMISSIONER OF INCOME TAX NEW DELHI ..... Respondent
Through: Ms. Adeeba Mujahid for Mr. Ajit
Sharma, Advs
CORAM:
HON'BLE MR. JUSTICE VIPIN SANGHI
HON'BLE MR. JUSTICE SANJEEV NARULA
VIPIN SANGHI, J. (ORAL)
1. The aforenoted appeals are directed against the composite order dated
20.12.2018 passed by the Income Tax Appellate Tribunal in ITA Nos. 5811-
5814/Del/2011 in respect of assessment years from 2001-02 to 2004-05. In
all these appeals, common questions of law are sought to be urged with
respect to disallowance under Section 37 of the Income Tax Act. Since
issues involved in all the appeals are common, the same are being decided
by a common judgment.
ITA 519/2019 & connected matters Page 2 of 17
2. The Tribunal has dismissed the appeals preferred by the appellant and
upheld the disallowance of expenditure claimed by the appellant incurred
towards the educational expenses in respect of Ms. Esha Arya, who happens
to be the daughter of one of the Directors of the assessee company.
3. In the assessment year 2001-02, the appellant claimed expenditure of
Rs. 29, 72,710/- on account of educational expenses of Ms. Esha Arya. The
said expenditure was disallowed on the ground that it was personal in nature.
On appeal, the learned CIT (A) dismissed the same. Similar expenditure
was claimed in subsequent years i.e. 2002-03, 2003-04 and 2004-05 and
they were also disallowed and additions of Rs. 16, 62,227/-, Rs. 21, 51,045/-
and Rs. 3, 27,837/- were made by the Assessing Officer in the said years.
4. The assessee preferred appeals against the said orders, which too were
dismissed. In respect of all the four assessment years i.e. 2001-02 to 2004-
05, the assessee preferred appeals before the Tribunal. Vide a consolidated
order dated 27.02.2009, the Tribunal restored to the file of the Assessing
Officer, the issue of disallowance of educational expenses incurred by the
assesee, on behalf of Ms. Esha Arya, daughter of one of the Directors.
5. The assessee was permitted to produce evidence in relation to the said
expenditure. The Assessing Officer granted sufficient opportunities to the
assessee and, thereafter, passed assessment orders sustaining the
disallowance mainly on the ground that the assessee did not produce the
original application form of Ms. Esha Arya for admission to the Boston
University, USA. The Assessing Officer also noted that the assessee did not
have any scheme for training of the employees, particularly for imparting
ITA 519/2019 & connected matters Page 3 of 17
higher education. Further appeal before the CIT (A) met the same fate and
the CIT (A) upheld the disallowance of the expenditure claimed by the
appellant. The Tribunal, in the impugned order has extracted the findings
returned by the CIT (A). Since the same are pertinent, we reproduce the
same as hereunder:
"6.2 I have carefully considered the submissions made on
behalf of the appellant, the findings of the Assessing Officer and
the facts on record. I have also perused the judgments relied
upon by learned counsel of the assessee. I have also perused
the directions given by the Hon'ble ITAT; New Delhi which
were very specific. The appellant was given clear directions by
the ITAT to furnish all the facts starting from making the
application of admission till making the last payment.
However, it is found that no evidence regarding application of
admission could be produced by the assessee before the A.O.
and also before the undersigned as per the directions of the
ITAT It is also pertinent to point out that the appellant had not
been able to furnish a copy of the application to the
Educational Institution before ITAT as well. The evidences
regarding payment of foreign exchange were produced but I
am of the considered view that the same are not sufficient to
prove the commercial expediency of the expenditure.
6.3 It is difficult to comprehend that not even the print-out of
the online application for admission is available with the
appellant. It cannot be disputed that the process for admission
of Miss Esha Arya at Boston University in USA for education
must have started much earlier. She had to appear at GMAT
for admission in Business Management and the GMAT scores
obtained by her would have been considered by the University
before offering admission to her. The letter of admission
would have also been issued by Boston University. At the time
of interview for visa, some evidence in support of her
admission in Boston University would have also been
produced by Miss Esha Arya before the USA embassy
ITA 519/2019 & connected matters Page 4 of 17
authorities. However, the appellant company has not been
able to produce/adduce any direct or circumstantial evidence
in order to prove that as to when she got the admission in
Boston University.
6.4 It is also observed that the assessee has not adopted any
procedure for selection of the employees for higher education
in Foreign University. Miss Esha Arya was sent for the higher
education not on the basis of requirement of the company or
her ability but only because of her relationship with the one of
the directors of the company. The decisive test in a situation
like this is to ask a question whether an assessee will incur
expenditure of the type being claimed in case of appellant as
business expenditure in case of any employee. If this test is
applied, it would be clear that huge expenditure on foreign
education is incurred because she is daughter of the Director
of the appellant company and such expenditure has no
business connection. It is thus apparent that only consideration
for incurring huge expenditure on Miss Esha Arya is because
she being the daughter of one of the directors of the appellant-
company. Thus, the only logical conclusion which could be
drawn on these facts of the case is that there is no nexus
between education expenses incurred abroad for Miss Esha
Arya and the business of the appellant-company. In any case,
such expenditure on facts cannot be said to be laid out or
expbiTdeTwholly and exclusively for the purpose of business. In
view of the foregoing discussion and for the reasons given by
the AO, I am of the considered view that the expenditure on
education of Miss Esha Arya is in nature of personal
expenditure of the Director of the appellant company, which
cannot be stated to be laid out or expended wholly and
exclusively for the purposes of business of the appellant
company. As such, these expenses cannot be considered as
allowable expenses under section 37(1) of the Act. Therefore,
disallowance made by the AO on account of the educational
expenses incurred by the appellant on behalf of Ms Esha Arya,
is hereby upheld. As a result, Ground of appeal No. 4 for the
ITA 519/2019 & connected matters Page 5 of 17
assessment years 2001-02, 2002-03, 2003-04 & 2004-05 is
dismissed." (sic)
(emphasis supplied)
6. Before the Tribunal, the assessee produced the paper book containing
224 pages to justify its claim of deductable expenses. The Tribunal has not
found merit in the appeal and dismissed the same. The discussion found in
the impugned order reads as follows:
"12. We have heard the rival submissions and perused the
relevant material on record including the paper book submitted
by the assessee. In the instant appeals, the common issue
involved is whether the expenses on education of Ms Esha Arya,
(who, happened to be daughter of one of the directors of the
assessee company) at the Boston University, which included
college fee, boarding, travelling from India and back and other
incidental expenses, have been incurred wholly and exclusively
for the purpose of the business and allowable under section
37(1) of the Act or not. The assessee is before us in second
round of proceedings. In first round, the Tribunal, questioned
the assessee about the fact whether at the time of making
application for admission to the MBA program, the company
had sponsored Ms. Esha Arya or she had applied
independently. The assessee was not able to furnish a copy of
application for admission to the Boston University. In view of
failure to substantiate the fact of a sponsoring by the assessee
company, the Tribunal restored the matter to the file of the
AO directing the assessee to file all evidences starting from
the making of the application till making the last payment, for
determining whether the expenditure was incurred by the
directors of the company out of love and affection towards
their daughter or it was an expenditure incurred in the course
of the business of the assessee.
13. As far as requirement of the filing of the application form,
the Assessing Officer has noted that no original application was
ITA 519/2019 & connected matters Page 6 of 17
filed by the assessee before him. The Ld. CIT(A) has also noted
that no copy of application for admission was filed by the
assessee before him. He has also noted that no other evidence
have been filed related to documents submitted during visa
interview before the USA Embassy Authorities. Thus, it is
evident that the assessee has not complied with the direction
of the Tribunal issued at the time of remanding the matter
back to the Assessing Officer. Before us also, only
information sheet/medical & physical history of the student
has been filed and copy of admission form has not been filed.
14. We find that the assessee has accepted the decision of the
Tribunal in first round of proceedings and no appeal has been
filed against the said direction of the Tribunal. In such
circumstances, not complying with the direction of the
Tribunal, itself is sufficient to dismiss the appeal of the
assessee.
15. In addition to the above, the documents filed in relation to
the remitting of foreign exchange through M/s Thomas Cook
private limited, nowhere demonstrate that payments were
made as part of the sponsoring agency for furtherance of the
business interest of the assessee company. We also find that
the assessee has failed to justify its claim of appointment of
Ms Esha Arya as a whole time director of the company, barely
at the age of 18 years without any relevant educational
qualification or experience.
16. We also note that in assessment year 2003-04, the Assessing
Officer has disallowed the salary of Rs.33,337/- paid by the
assessee to Ms. Esha arya observing as under:
"7.In respect of assessment year 2003-04, the
appellant has also raised Grounds of appeal No.5
which relates to the disallowance of the salary to
the extent of Rs.33,337/- paid by the appellant to
Ms. Esha Arya. This matter was also restored to
the file of the AO for fresh adjudication after
ascertaining whether any service was rendered by
ITA 519/2019 & connected matters Page 7 of 17
her to the assessee company in this year for during
her vocation period. In this regard, the copy of the
extracts of the minutes of the meeting of the Board
of Directors dated 06.05.2002 was furnished
before the A.O. as well as before the undersigned.
The above-quoted letter dated 06.05.2002 does not
indicate anything about the expenses in question
and its justification from the point of commercial
expediency. In order to claim a deduction on
account of expenditure for purposes of business
the onus lies on the assessee to prove that the
expenditure was incurred for the purposes of
business and was not of a capital nature. If it is to
be allowed, the onus is on the assessee to prove the
amount of expenditure which can be allowed. In
order that an expenditure should qualify for
deduction as contemplated by section 37(1), one of
the requirements of the provision is that the
expenditure must have been laid out wholly and
exclusively for the purpose of the business. It
cannot be disputed that before an assessee can
become entitled to an allowance under that
provision, he must satisfy the Department of the
purpose for which the amount is spent. It is true
that the taxing authorities are not entitled to go
into the reasonableness of the expenses, but they
are certainly entitled to be satisfied as to the
commercial necessity of expending that amount.
The question will always be as to the nature of the
relation between the expenditure and the business,
whether the benefit is remote or near, prospective
or immediate, imaginary or real and so forth. The
capacity in which the assessee spends will also be
relevant. In the instant case, the assessee did not
furnish any material to the Assessing Officer to
arrive at the conclusion favoring the assessee. The
A.O. therefore, exercised his judgment and
ITA 519/2019 & connected matters Page 8 of 17
discretion which cannot be said to be arbitrary or
unreasonable. As a result, the addition of Rs.
33,337/- on account of salary paid by the appellant
to Ms Esha Arya is confirmed and ground No.5 is
dismissed."
17. We find that the assessee has not taken any ground of
appeal against the above finding of the Ld. CIT(A), and, thus,
the fact that no services were rendered by her even during
vocation period, become final.
18. We find that in the case of RAS information technology (p)
Ltd., the Hon'ble High Court in para 6 of the decision has
noted that during the course of pursuing his postgraduate
course at USA, the son of the director of the company updated
about the latest trends and developments in the field of
consultancy and was also sending key input in the form of
articles, research papers etc to enable the company to keep
itself updated of the technical know-how and knowledge.
Whereas, in the instant case before us, even the claim of
services during the vocation period has not been found to be
true. Thus, the ratio of the above decision cannot be applied
over the facts of the instant case. In the case of Mallige Medical
Centre Private Limited (supra), the daughter of the managing
director acquired degree in medicine and she was already
employed with company as full-time employee. In the instant
case, the daughter of the director barely attained the age of 18
years and completed schooling. Thus, facts of the instant case
are distinguishable from the facts of the cases relied upon by
the assessee."
(emphasis supplied)
7. The submission of Mr. Santhanam, learned counsel for the appellant,
is that the Tribunal heard the submissions on 18.12.2018 and pronounced the
impugned order on 20.12.2018 without considering the compilation of
ITA 519/2019 & connected matters Page 9 of 17
documents submitted by the appellant. He further submits that all the
conditions of Section 37 of the Income Tax Act were satisfied inasmuch as,
the nature of the expenditure was not capital in nature; it was not personal
expenses of the assessee company; it was expended wholly and exclusively
for the purpose of business of the company.
8. He submits that merely because Ms. Esha Arya was the daughter of
one of the Directors of the company, the expenses could not be disallowed.
He further submits that before proceeding for the course, Ms. Esha Arya was
inducted as a Director and employee of the company and she even entered
into a bond with the company undertaking to serve the company upon her
return. He further submits that, as a matter of fact, after her return, she did
serve the company and changed the fortunes of the company. The education
obtained by Ms. Esha Arya was pertinent and relevant to the business of the
company since she had gone abroad to obtain the degree of M.B.A from
Boston University, USA.
9. In support of his submission, Mr. Santhanam has placed reliance on
the decision of this Court in Kostub Investment Ltd. v. Commissioner of
Income Tax, (2014) 365 ITR 436 (Delhi). In this case, an employee of the
company, who had already served for about a year, had been sent to obtain
higher education. This Court distinguished Kostub Investment Ltd. (supra)
from Natco Exports Pvt. Ltd. v. CIT, (2012) 345 ITR 188 (Delhi), and held
in favour of the assessee that the said expenditure was allowable.
10. Per contra, learned counsel for the respondent, firstly, submits that no
question of law arises for consideration since the entire dispute is completely
ITA 519/2019 & connected matters Page 10 of 17
factual. She submits that there are concurrent findings of fact returned by
the Assessing Officer, CIT (A) and the Tribunal after examining the
materials produced by the appellant. The onus to justify the deduction of the
expenditure incurred by the appellant was entirely upon the appellant, and
the appellant had failed to discharge the same. She submits that an issue of
appreciation of evidence does not raise a question of law, particularly when
concurrent findings of facts have been returned and no perversity is pointed
out in the finding concurrently returned by the authorities and the tribunal.
She points out that the two Directors of the company, who participated in
the Board Meeting which resolved to send Ms. Esha Arya to Boston
University to undertake the MBA Course were her parents, and none else.
She also points out that the nature of the bond executed by Ms. Esha Arya is
also questionable inasmuch as, she was only required to serve the company,
upon her return, for a period of one year, failing which she was subjected to
penalty of Rs. 50,000/-, which too could be waived.
11. She points out that the expenditure incurred by the appellant company
on the foreign education of Ms. Esha Arya was to the tune of Rs. 70 lakhs
(approx.), spread over a period of four years. She also points out that the
assessee company was running into losses when it purportedly resolved to
send Ms. Esha Arya for her higher education to Boston University for the
MBA course.
12. We have gone through the facts of the case and have also examined
the judgments cited by the Appellant as well as the Revenue. The assessee
has claimed expenditure in respect of educational expenses incurred by the
ITA 519/2019 & connected matters Page 11 of 17
assessee for overseas education of Ms. Esha Arya, daughter of one of the
directors of the assessee company. The expenses were disallowed
concurrently by all the authorities- the A.O, CIT (A) as well as the Income
Tax Appellate Tribunal.
13. Section 37 of the Act postulates that expenditure which is wholly and
exclusively incurred for the purpose of business can be allowed as a
deduction in taxable business income. The onus is on the assessee to show
and establish that the aforesaid twin conditions are satisfied. Personal
expenses cannot be claimed as a deduction under Section 37 of the Act.
14. The question as to whether, in a given case, the expenditure claimed is
allowable or not has to be examined in the context of the facts and
circumstances of the case, which would entail analysis of the business
activities of the assessee and its general policy to incur such expenses for the
purpose of the business wholly and exclusively; the nature of education,
training, etc. would need examination. It would also need examination
whether the expense saddled on the assessee is, in fact, a personal expense
of the owner/partner/Director of the assessee who may be controlling the
affairs of the assessee, and is sought to be passed off as an allowable
expenditure, only to reduce the tax liability of the assessee and that of the
owner/partner/share holder-Director of the assessee. All these factors are
necessarily required to be examined so as to ascertain if there is a nexus
between the expenditure claimed and the business of the assessee, whether it
was wholly and exclusively expended for the purpose of business of the
assessee. This requires the assessee to produce reliable evidence before the
ITA 519/2019 & connected matters Page 12 of 17
Assessing Officer. The evaluation of the claim of expenditure has to be
considered on the basis of the material on record, and there cannot be any
straight jacket formula for such determination. Each case would turn on its
own facts, and the decision would vest on the fact whether the assessee has
discharged the burden of showing that the expenditure was wholly and
exclusively for the purpose of the business of the assessee under Section
37(1), to include the conclusion that the expenditure, which is of personal
nature, is not claimed as business expenditure. In the present case, the
assessee has failed to produce material and documents to support that the
expenditure was incurred for the purpose of the business of the assessee. The
findings of the AO, affirmed in the successive appeals are all factual. The
assessee has not been able to show as to how the findings are perverse or
contrary to the evidence and material on record.
15. It is also to be noted that the Appellant is a Company engaged in the
business of manufacturing of Sheet Metal components and LPG Cylinders.
It has claimed that it incurred expenses for education of the newly inducted
Director- 18 year old daughter of at least one of the existing Directors, for
pursuing MBA programme in USA. The Board of Directors comprised of
Sh. S.K. Arya and Smt. Neelam Arya (Husband & Wife) and Ms. Esha Arya
(their daughter) was inducted in the business as a Director at the start of the
previous year in respect of assessment year 2001-2002, when she was barely
18 years of age.
16. In Kostub Investment Ltd (supra), the crucial factor that prevailed
upon the Court is noticeable in the following words, "But that it has chosen
ITA 519/2019 & connected matters Page 13 of 17
to fund the higher education of one of its Director's sons in a field intimately
connected with its business is a crucial factor that the Court cannot ignore ."
The assessee in that case was in the business of investments and securities
and it claimed expenditure on account of education and training under the
head `Education and Training Expenses' relating to higher education of one
of the sons of its Director for pursuing the Course of MBA. This is not the
situation in the present case. Masters of Business Administration is a course
which is general in nature and is not any specialized training or degree in
relation to the business activity of the assessee.
17. There is yet another fact which distinguishes the present case from
Kostub Investment Ltd (supra) and renders it inapplicable. In the said case,
the person whose education was sought to be funded was already on the
Board of Directors of the assessee's Company and he was working for a
salary. Since, the Company was in need of a Manager who could study the
methods of investment market, the Board of Directors took a conscious
decision to send the son of one of its Directors to pursue the course and to
incur the expenditure for his study and training.
18. In the present case, Ms. Esha Arya, the daughter of one of the
Directors was barely 18 years of age without any relevant education,
qualification or experience when she was inducted as a whole time Director
of the Company. The agreement with the company wherein she undertook to
remain in the employment of the assessee company for a period of not less
than one year from the date of completion of higher education/training was
executed on 20.03.2000, the date when she was inducted as the Director of
ITA 519/2019 & connected matters Page 14 of 17
the Company. The terms of the said agreement also defy logic. It is highly
improbable that a Company which would incur expenditure to the tune of
Rs. 70 lacs approximate on overseas education, agreed to have Ms. Esha
Arya make a commitment to work for the Company only for a period of one
year and, in the event she were to leave the Company before the expiry of
the said period, she was required to pay only Rs. 50,000/- as default money,
which too could also be waived off at the discretion of the Director of the
assessee. When these contradictions were pointed out, the Assessee
produced the supplemental agreement dated 01.11.2000 wherein she agreed
to serve the Company for not less than two years and in the event of default,
reimburse 50% of the expenditure incurred on higher education. These facts
cannot be ignored and one can easily infer that the expenses were not
incurred wholly and exclusively for the business of the Company.
Significantly, when the learned ITAT restored the matter to the file of the
AO, in the first round of a challenge, the assessee, despite opportunity failed
to produce the evidence that would justify the expenditure, as noted in the
impugned order. The assessee could not produce any evidence to show that
the assessee company had sponsored the application of Ms. Esha Arya from
the beginning. The Assessing Officer thus concluded that there was no
nexus between the higher education expense of Ms. Esha Arya and the
business of the assessee and accordingly disallowed the entire sum holding
that it was not an expenditure incurred wholly and exclusively for the
purpose of business. While it may also be true that it is for the assessee to
decide as to who should be employed, and what should be the terms of the
Contract, however, it is for the Income Tax Officer to determine whether
ITA 519/2019 & connected matters Page 15 of 17
there is indeed a nexus between the expense and the business of the
Company and for that, the enquiry conducted by him cannot be faulted with.
The present case is similar to Natco Exports Pvt. Ltd. (supra). The
distinction sought to be drawn by Mr. Santhanam on the ground that in the
present case Ms. Esha Arya had executed a bond with the assessee Company
is rejected because the bond is itself farcical and that is not the only relevant
factor. In Natco Exports Pvt. Ltd. (supra), this Court observed:-
"5. The aforesaid findings are findings of fact and have been
upheld by the Tribunal. We may also note that in the present
case Ruchika Grover had not executed any bond that she would
work for the appellant company after she completes the course
and on failure shall return the money spent. The findings of the
Tribunal clearly show that Ruchika Grover, who had completed
her graduation in the year 2005 and immediately thereafter
applied for further studies in University of Nottingham in
United Kingdom. It is a case where she continued with her
studies. The said application for undertaking the studies abroad
was made even prior to her completing the course. The alleged
board resolution has rightly not been relied upon as it was not
relied and filed before the Assessing Officer. Considering the
facts and circumstances of the case, the aforesaid expenditure,
it has been held, cannot be regarded as wholly and exclusively
incurred for the purpose of business. The findings are findings
of fact. The findings are not perverse."
19. The cumulative impact of all the events and circumstances noted in
the impugned order, has led the Income Tax Authorities to hold that the
deduction could not have been allowed. The reasons for disallowance are
germane and relevant and cannot be ignored. Apparently, this was an
attempt on the part of the assessee to avoid tax liability.
ITA 519/2019 & connected matters Page 16 of 17
20. For the foregoing reasons, the Court is of the opinion that the
concurrent findings of fact arrived at by all the lower Appellate Authorities
do not call for any interference and no question of law arises for
consideration.
21. Accordingly, all the present appeals are dismissed.
VIPIN SANGHI, J
SANJEEV NARULA, J
SEPTEMBER 30, 2019
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