Now a days, assesse’s are facing number of disallowance under various clauses of section 40 of the act by the Income tax officials. These issues were handled with due care at the time of the assessment itself so that in the case of forcefully disallowance by AO, the assessee will not get hard hits in the appellate level. The important issues which were covered under section 40 are
(i) Disallowance for non deduction of TDS under section 40(a)(i)
(ii) Deduction under section 40(b) for partners.
(iii) Disallowance under section 40A(3) for making cash payments
(iv) Disallowance under section 40A(2)(b) – Related party transactions
The author had tried to concentrate here more on the outcome of the recent judgments which had come from various courts of the country. However, it is also very difficult to convince the AO based on the case laws, as they are more prone for making disallowances may be due to instructions they had received from their superiors. But quoting the case laws in the favour of the assessee at the time of the assessment will help the assessee company in the appellate level. Further, the case law study given below will also help assesses to take decisions at the time of entering into the transactions.
The author below provided only the summary of the case laws and no personal view on that had been added. I welcome your suggestions at my e mail ID mr_manish_ca@yahoo.com or you can also visit my blog at http://taxbymanish.blogspot.com/ to get the latest tax updates on daily basis.
Now let us analyze the judicial decisions.
(a) Disallowance for non deduction of TDS under section 40(a)(i)
(i) In the case of R. S. Suriya vs. Dy. CIT 21 ITR 746 the Chennai ITAT held that Payment made by actor to person for managing call sheets, cannot be called payment for professional services hence cannot be disallowed under section 40(a)(ia)(A).
(ii) In the case of Teja Constructions v ACIT, 129 TTJ 57 it was decided that Once estimate of income is made, further disallowance under section 40(a)(ia) for non deduction of TDS is not warranted.
(iii) During assessment year 2001-02, assessee company made royalty payment to its holding company in US after deducting TDS, however, paid amount was so deducted in the Asst. Year 2001-02. As per proviso to section 40(a)(i) deduction is allowable to assessee in subsequent year in which TDS has been paid or deducted under chapter XVIIB, however in the present case TDS had been paid by assessee in present year although deducted in preceding year hence its claim for deduction was allowable. Refer McDonalds (India) (P) Ltd. vs. ACIT, 36 SOT 240.
(iv) Expenditure claimed by the assessee as interest accrued on debentures without deducting the TDS could not be allowed in view of specific provisions of section 40(a)(ia). Refer, Dy. CIT vs. Umang Dairies Ltd, 36 SOT 383.
(v) In the case of CIT vs. Information Architects, 322 ITR 1, the Mumbai High Court held that Amounts paid by the assessee to its employees toward overseas maintenance allowance. These amount constituted only reimbursement for the expenses incurred by the employees and would not form part of the salary in the hands of receipts. Sub clause (iii) of clause (a) of section 40 would not be applicable.
(vi) Payment for SAP software could not be charged to tax in India as interest or royalty or fee for technical services. Even otherwise because of non-discriminatory clause 24(1) of DTAA with India and Germany, foreign national could not be subjected to provisions of section 40(a)(i). As regards depreciation which is allowable under section 32 provisions of section 40(a)(i) are not applicable. Refer, SMS Demag (P) Ltd. vs. Dy. CIT, 38 SOT 496.
(vii) In the case of Orient (Goa) (P) Ltd. 30 DTR 129, it was held that Tax having not been deducted at source from payment of demurrage charges to foreign shipping company, s. 40(a)(i) was clearly attracted; assessee being a resident company, there was no question of invoking s.172.
(viii) No income accrued or arose to the payee from the payment made by the assessee to its non-resident parent company in respect of the expenditure incurred by the latter in connection with the business activity carried on by assessee was not required to deduct tax at source and therefore, the payments could not be disallowed by invoking the provision s of s. 40(a)(i); disallowance could not be made also for the reason that the income of the assessee is to be computed as per the special provisions of s. 42 which overrides the general provisions of computation of income. Refer, Cairn Energy India Pvt. Ltd. 30 DTR 258.
(ix) In the case of DCIT v Lazard India (P) Limited, 6 taxmann.com 30 Mum – ITAT, it was held that Provisions of section 40(a)(i) will not be applicable in the case of reimbursement of expenses. The same was also confirmed for Utility Powertech Ltd. TIOL 545 ITAT (Mum.) (BCAJ) (Nov., 2010) P. 22 [150 (2010) 42 B. BCAJ] where it was held that When there is no element of income and the payment is only as a reimbursement of expenses incurred by the payee, then no disallowance can be made under section 40(a)(ia).
(x) If TDS not deducted on Commission or Interest expenditure, expenses to be disallowed. Refer, Tube Investments of India Limited and Another v ACIT – TDS, 325 ITR 610.
(xi) If the provisions of section 194C with respect to the time of deduction and payments are applied for the disallowance under section 40(a)(ia) then there will be no purpose or object for providing the certain conditions of actual deduction of tax payments of tax under section 40(a)(ia). Refer, Bapusaheb Nanasaheb Dhumal v ACIT, 6 taxmann.com 51 Mum - ITAT.
(xii) Since the assessee, a transporter, was not liable to get his accounts audited under section 44AB.,in the immediately preceding assessment year , he was not required to deduct tax at source under section 194C from the payments and they could not be disallowed under section 40(a) (ia) on account of non deduction of TDS. Refer, ITO v Dhirubhai Dajibahi Patel, 133 TTJ 1.
(xiii) Chennai ITAT in the case of VA Tech Wabag Ltd v Asst CIT held that Payment made by the assessee to an Austrian company by way of fees for technical services was not taxable in India as per art 7 of the old DTAA of 1065 as applicable to the relevant assessment year 2002- 03, in view of the fact that no portion of the activities were performed by the Austrian enterprise in India , and therefore ,provisions of section 195 were not applicable to the payment made by the assessee to the said enterprise and as such fees for technical services is not hit by the provisions of section 40(a) (ia).
(xiv) Again Mumbai ITAT in the case of Central Bank of India vs. DCIT held that Under Art 26(3) of India-USA DTAA payments to Non-Residents are equated with payments to Residents & so s. 40(a) (i) disallowance not valid.
(xv) Assessee having made all payments of TDS in respect of contract payments, interest, professional fees and commission for the Asst. Year 2005-06 after due date and in the financial year 2005-06, corresponding amounts are deductible in computing the income of asst year 2006-07, in view of section 40(a)(ia). Payment of rent has been inserted in section 40(a)(ia) w.e.f. 1st April 2006 and therefore, assessee is entitled to deduct the rental expenditure in computing the income of the relevant Asst. Year i.e. 2005-06, itself, even though payment of TDS was delayed. Refer, Uniword Telecom Ltd. vs. Addl. CIT, 45 DTR 433.
(xvi) Assessee a transport contractor herself having executed whole of the contract for transportation of goods by hiring trucks from various truck owners, it cannot be said that the payments made for hiring of vehicles fall in the category of payment to sub–contractor and therefore, the assessee was not liable to deduct tax at source as per the provision of section 194C for the payments made to the truck owners and the same could not be disallowed under section 40(a)(ia). Refer, Kavita Chug (Mrs) vs. ITO, 45 DTR 146.
(xvii) Considering the legal and factual findings recorded by the CIT(A) regarding there being no liability of the assessee to deduct tax under section 194C from the payments made by it to different truck owners on the ground that each job undertaken by a truck owner was a separate job for the same person, at different rates and terms, hence the different jobs will not turn into single contract and thus there being no contract between the assessee and truck owners, there was no infirmity in the order of CIT(A) deleting the disallowance under section 40(a)(ia). Refer, ITO vs. Indian Road Lines 45 DTR 49.
(xviii) Assessee had provided certain amount as liability on account of foreign exchange fluctuation in respect of technical know-fee. The amount was debited to profit and loss account even though no payment in that regard had been made to foreign parties. As no deduction of tax was made on that amount the Assessing Officer disallowed said amount under section 40(a)(i). Assessee contended that increase and decrease of payment of technical fees depends upon foreign exchange fluctuation at the time of payment and tax will be deducted when payment was made. High Court held that provision of section 40(a)(ia) were not applicable. Refer, CIT vs. Mac Charles (India) Ltd. 195 taxmann 296.
(xix) Transaction charges paid by the brokers to the stock exchange were not for any services provided by the stock exchange, hence, the provisions of section 40(a)(ia) were not attracted as no tax was required to be deducted. Refer, Wall Fort Financial Services Ltd. vs. Addl. CIT, 48 DTR 138.
(xx) Indo - Netherlands DTAA: If employer outside india, who are non-residents, have received salary even from indian company, said salary will not be chargeble to tax in india for purpose of section 40(a)(iii). Refer, Mother Dairy Fruit, Vegetable (P) Limited v CIT, 9 Taxmann.com 210.
(xxi) Calcutta High Court in the case of ABN Amro Bank ruled out that “It was held that as regards taxability in the hands of the HO & obligation for TDS under section 195, the same was not chargeable to tax in the hands of the HO. The PE being assessable as separate legal entity pursuant to provisions of DTAA there is no obligation to deduct tax under section 195 and consequently no disallowance under section 40(a)(i) can be made in the hands of the branch. Thus, interest paid by a branch of a Foreign entity to its HO is deductible in the hands of the branch. Such interest is not taxable in the HO’s hands”.
(xxii) The assessee had purchased a software from M and sold in the Indian market. The assessee acted as a dealer .This could not be termed as royalty, therefore section 40 (a)(i) had no application. Refer, CIT vs. Dynamic Vertical Software India P. Ltd 332 ITR 222.
(xxiii) Only when claim of assessee for deduction is under sec 32 to sec 38, provisions of sec 40(a)(ia) can be pressed into service to disallow such claims for deduction. Refer, ITO v Ahaaar Consumer Products (P) Limited 10 Taxmann.com 181. It means that expenses claimed for income from other sources are out of the perview of section 40(a)(ia).
(xxiv) Disallowance cannot be made under section 40(a)(ia) on account of non-deduction of tax at source in respect of estimated labour charges which is a small fraction of the total expenditure in respect of goods purchased. (A. Y. 2005-06). Refer, S. T. Reddiar & Sons vs. Dy. CIT, 129 ITD 475 / 135 TTJ 480 / 49 DTR 326 (Coch.)(Trib.).
(xxv) Partners of the assessee firm having executed the transportation, contracts undertaken by the firm by using their own trucks and the assessee having acted as an agent in routing the payments to partners, it cannot be held that there was a separate contract between the firm and the partners and, therefore, such payments could not be disallowed under section 40(a)(ia) on the ground that tax was not deducted at source under section 194C. (A. Y. 2006-07). Refer, CIT vs. Grewal Brothers, 54 DTR 99.
(xxvi) Lukcnow ITAT in the case of Dy. CIT vs. Sanjiv Gupta, 135 TTJ 641 / 50 DTR 225 ruled out that Tax is not deductible under section 195 with regard to payment of commission to foreign agent in view of Circular No. 23 of 1969 and Circular No. 786 of 2000. The payment cannot be disallowed under section 40(a)(i) as Circular No. 7 of 2009 had no retrospective effect. (A. Y. 2007-08). Same was also decided in the case of Deputy CIT v. Divi's Laboratories Ltd.
(xxvii) In the case of Krishak Bharati Co-operative Ltd. v. Addl. CIT, Delhi ITAT held that payment for supply of gas is not a work contract and hence their cannot be any disallowance under section 40(a)(i).
(xxviii) Kolkata ITAT in the case of Ashika Broking Limited held that Section 40 (a) (ia) applies even in respect of amount paid and not merely payable to the contractors and therefore CIT (A) was justified in confirming disallowances under section 40 (a) (ia) as the assessee had failed to deduct tax under section 194C.( Asst year 2007-08).
(xxix) Once assessee has obtained Form no 15 –I from the sub contractors , he is not liable to deduct tax from the payments made to sub contractors and no disallowance can be made under section 40 (a) (ia) . Belated furnishing of form No 15J to the CIT is an act posterior in time to payments made under to sub contractor and therefore this can not itself undo the eligibility of exemption created by second proviso to section 194 C (3) (i) by virtue of submission of Form no 15 â€I by the sub contractors.( Asst Year 2006-07). Refer, Valibhai Khanbhai Mankad v Dy CIT, 56 DTR 89. Same was also confirmed in the case of Shyam Sunder Kailash Chand v ITO 60 DTR 270.
(xxx) Delhi ITAT in the case of Career Launcher ( India) Ltd v Asst CIT, 139 TTJ 48/ 56 DTR 10 (Delhi) (Trib). Held that Franchisee agreement did not stipulate payment to be made to the licence for any work done on behalf of the assessee and it was merely a case of running a study centre and to apportion profits thereof between the assessee and the licence and therefore provisions of section 194C were not applicable and no disallowance under section 40 (a) (ia) can be made.(Asst years 2005-06, 2006-07).
(xxxi) Assessee operating trailer lorries disbursing freight charges amounting to Rs 46,70,365 to 16 parties without deducting TDS as specified in section 194C. Assessee was liable to deduct tax at source. Amendment to sub section (3) of section 194C made through Finance Act 2005, where by second and third provisions were added to it w.e.f 1st June, 2005 has no retrospective effect . The Tribunal held that the Assessing Officer was justified in making disallowance under section 40 (a) (ia).( Asst Year 2005â€06). Refer, ITO v M.Sankar, 138 TTJ 690/ 55 DTR 289 ( Chennai) (Trib).
(xxxii) In the case of Whirlpool India Limited, 56 DTR 65, Delhi High Court ruled out that As per the proviso to section 40 (a) (i), deduction for royalty could be allowed in the year in which TDS was either paid or deducted under Chapter XVII –B; where as tax was deducted in Asst year 1995-96 but payment was made in the next assessment year i.e. 1996-97 , assessee was not entitled to claim the same as deduction in Asst Year 1996-97 but could be claimed in asst year 1995-96, only. ( Asst Year 1996-97 ).
(xxxiii) Delhi High Court in another case of Cargill Global Trading (I) (P) Ltd, 56 DTR 188 decided that Discounting charges paid by assessee to a foreign company for discounting export sale bills is not “interest” as defined in section 2 (28A), since foreign company has no permanent establishment in India, it was not liable to tax in respect of discounting charges and therefore , assessee was under no obligation to deduct tax at source under section 195 and the discounting charges could not be disallowed under section 40 (a) (i).( Asst years 2004-05 & 2005-06 ).
(xxxiv) The assessee paid Rs. 3.37 crores as “machine hire charges” on which it deducted TDS u/s 194C at 1%. The AO held that the payment was “rent” and TDS ought to have been deducted at 10% u/s 194-I. He disallowed the expenditure u/s 40(a)(ia). This was reversed by the CIT (A). On appeal by the department, HELD dismissing the appeal. Refer, DCIT vs. M/s. S. K. Tekriwal.
(xxxv) The assessee, engaged in manufacture of tooth paste etc paid Rs 11,71,826 as accreditation panel fees” to British Dental Health Foundation UK without deduction of tax at source. The AO disallowed the sum /s 40(a)(i) on the ground that the sum was taxable as “royalty” and tax had not been deducted at
source u/s 195(1). The CIT(A) deleted the disallowance. Before the Tribunal, the department argued that since the assessee derived valuable advantage from the accreditation by BDHF and used the same as a marketing tool, the amount constituted “royalty”. HELD dismissing the appeal: (i) The obligation to deduct tax u/s 195(1) arises only if the payment is chargeable to tax in the hands of non-resident recipient. If the recipient of the income is not chargeable to tax, the vicarious liability on the payer is ineffectual. As the AO had not established how the recipient was liable to pay tax, he was in error in disallowing u/s 40(a)(i) .
(ii) On merits, though the accreditation fees permitted the assessee the use of name of British Dental Health Foundation, it did not constitute “royalty” under Article 13 of the India-UK DTAA because it did not allow the accredited product to use, or have a right to use, a trademark, nor any information
concerning industrial, commercial or scientific experience so as to fall within the definition of the term. The purpose of the accreditation by a reputed body was to give certain comfort level to the end users of the product and to constitute the USP of the product. The term “royalty” cannot be construed as per its normal connotations in business parlance but has to be construed as per the definition in Article 13. The amount constituted “business profits” and as the recipient did not have a PE in India, it was not taxable in India. Refer, ACIT v Anchor Health and Beauty Care Pvt. Ltd.
(xxxvi) In order to fall with in the exception of section 9 (1) (vii) (b), the technical services for which , the fees have been paid ,ought to have been utilized by resident in a business outside India or for the purpose of making or earning any income from any source outside India. Assessee having established that the testing and certification services provided by it by CSA were utilized only for export activity , section 9(1) (vii) (b) being not attracted , section 40 (a) (i) could not be invoked. Refer, Havells India Ltd v Addl CIT, 59 DTR 118 140 TTj 28 3 / 47 SOT 61 (Delhi) (Trib).
(xxxvii) In respect of AY 2005-06, the assessee paid fees to professionals and contractors in respect of which the TDS was deposited after the prescribed due date but before the due date for filing the return of income. The Finance Act, 2010 amended s. 40(a)(ia) w.r.e.f 1.4.2010 to provide that no disallowance would be made if the TDS was deposited on or before the due date for filing the return. The assessee claimed that the said amendment was “remedial and curative in nature” and applicable from AY 2005-06. The issue was referred to a Special Bench. HELD by the Special Bench. Refer, Bharati Shipyard Ltd vs. DCIT.
(xxxviii) When the amount of interest paid has been considered to be part of the purchase price and not interest under section 194A, such payment cannot be disallowed under section 40a(ia). ( Asst year 2005-06). Refer, Parag Manshuklal shah v ITO, ITA no 2075 /Ahd/ 2008 CO no 120/Ahd /2008 Bench A dt. 30-6-2011. ACAJ Vol 35 –Part 3. June 2011 P.166.
(xxxix) Irrespective of fact that an assessee is entitled to claim refund of excess tax paid or get adjusted against tax liability under provisions of Act, assessee can not with hold TDS deducted from payment made to a contractor so as to adjust same against excess taxes paid earlier and if an assessee does so then provisions of section 40(a) (ia) are attracted in respect of payment so made. ( Asst Year 2005â€06). Refer, HCC Pati Joint Venture v Asst CIT, 46 SOT 263 ( Mumbai) (Trib).
(xl) Transportation of goods by railways does not fall with in the ambit of “work” with in the meaning of section 194C and therefore , there was no obligation on the assessee to deduct tax at source under section 194C from the payments made to Indian agents of foreign shipping lines for inland haulage of goods by railways and accordingly, no disallowance can be made under section 40 (a) (ia)( Asst year 2006â€07). Refer, Airtech (P) L td v Dy CIT, 57 DTR 169.
(b) Deduction under section 40(b) for partners.
(i) In the case of Allen Career Institution vs. Addl. CIT 37 DTR 379, it was held that For the purpose of computing deduction under section 40(b), interest on bank FDRs is not to be excluded from the net profit.
(ii) A firm of solicitor is under obligation to keep the money received from its clients as deposit in a separate bank account, therefore, interest from such deposits will be assessable as profits and gains of business or profession hence, such interest has to be considered while computing book profits as per section 40 (b).
(iii) The presence of a clause in the partnership firm that gave partners power to modify the terms of remuneration does not render remuneration unqualified for deduction. Refer, Shabro International vs. Addl. CIT, ITA No. 6629/Mum/2008, Bench – E, dt. 20th March, 2010 / BCAS Journal, Volume 42-A – Part 1 – April, 2010 – page 25.
(iv) Where a joint Hindu family is a partner and the karta of such joint family is given salary, such salary income being reward for service in individual capacity should be eligible deduction. Refer, Unimax Laboratories 311 ITR 191.
(v) Salary paid to partner can not be disallowed only on the reason that salary is not quantified in partnership deed. Refer, Suman Construction, 34 SOT 495.
(vi) Where remuneration is paid to a partner who is not a working partner, remuneration payable to him even in accordance with the deed of partnership is not allowable under the provisions of section 40(b) of the Act. Refer, Reliable Surface Coatings vs. ACIT 7 ITR 183.
(vii) AO is not entitled to disallow payment of interest to partner by re-working capital account balances of partner under sec 40(b). Refer, Swaraj Enterprises v ITO, .
(viii) Salary paid to working partner even though as Karta of HUF, is received as individual and as working partner ,hence allowable as deduction while computing ncome of firm.( A.Y. 2005†06). Refer, CIT v Jugal Kishor & Sons, Tax. L.R. 550 ( All) (High Court).
(c) Disallowance under section 40A(3) for making cash payments.
(i) In the case of CIT V Vijay Kumar Goel, 324 ITR 376 it was held that Bill of exchange is covered under negotiable Instrument Act so no disallowance u/s 40A(3).
(ii) Provisions of s. 40A(3) apply for each payment and not aggregate of the various payments made to same party during one day. Refer, Shanti Ram Mehata, 119 ITD 62.
(iii) Once the payments are covered by Clauses (f) & (I) of Rule 6DD, then it cannot be disallowed u/s. 40A(3). Refer, Hind Industries Ltd., 19 DTR 561.
(iv) During the year under consideration assessee made total purchases of India Telephone cards at Rs. 270.64 lakhs, of which Rs. 187.73 lakhs were by way of cash purchases. Assessing Officer invoked provisions of section 40A(3) and disallowed 20% of impugned expenditure. CIT(A) upheld the disallowance. The Tribunal held that on facts, it was apparent that relationship between service provider i.e. BSNL and assessee–distributor was of principal and agent and income arising to assessee was in nature of commission or remuneration against services rendered, hence, disallowance under section 40A(3) is not applicable. Refer, S. Rahumathulla vs. ACIT, 127 ITD 440.
(v) Provisions of section 40A (3) cannot be invoked in block assessment with respect to the purchases found as per seized material and unrecorded in the regular books of account , especially , when the profit from the unrecorded transactions has been estimated and declared. Refer, Kirti Foods Ltd v Asst CIT, 60 DTR 96.
(d) Disallowance under section 40A(2)(b) – Related party transactions. .
(i) In the case of Orgo Chem Guj. Pvt. Ltd., ITA No. 7872 /Mum/2004 Bench H, Dt. 17-8-2007. (2008) 40–B BCAJ JAN 520, it was held that Discount sales given to sister concern are not covered under the provisions of s. 40A(2)(b) of the Income Tax Act, 1961.
(ii) Incentive commission paid to sister concern was allowed in earlier years. Sister concern paying tax at higher rate. Provision of s. 40A(2) cannot be applied as the case is not evasion of tax. Refer, Indo Saudi Services (Travel) P. Ltd. 310 ITR 306.
(iii) Trade discount provided to a sister concern is not an expenditure and therefore, no disallowance u/s. 40A(2) of the Act can be made. Refer, United Exports 28 DTR 315.
(iv) Where the interest paid by assessee to close relative and associate concern is not more than the rate at which interest was paid to other creditors the interest so paid cannot be disallowed by invoking the provisions of s. 40A(2). Refer, Amrit Soap Co. 17 DTR 350.
(v) For the purpose of applying the provisions of s. 40A(2) the AO is required to make inquiry to ascertain whether payment is excessive or unreasonable having regard to fair market value of services. Refer, Jagadamba Rollers Mill Ltd., 117 ITD 260.
(vi) Import of goods at price higher than for local goods, Assessing Officer comparing figures for subsequent year is not proper, the Assessing Officer was required to compare the price which prevailed in the local market in the same year. Refer, CIT vs. Denso Haryana Pvt. Ltd. 328 ITR 14.
(vii) Mere fact that the allocation of expense by a holding company to its parent company for service availed by holding company has not been made on basis of rigid and detailed formula does not by itself make that expense disalllowable u/s 40A(2)(b). Refer, Orchard Advertising (P) Limited v ADD CIT, 8 Taxmann.com 162.
(viii) Mere making of payment to a relative will not automatically call for disallowance under section 40A (2)(b). refer, DCIT v Choice Sanitaryware Industries 9 Taxmann 120.
(ix) Where assessee purchased from its subsidiary material at prices higher than the market rate for assured supply, there was no question of diversion of funds since both the assessee and the subsidiary were subjected to the same rate of tax, hence there was no warrant for addition by invoking section 40A(2). (A. Y. 1985-86).Refer, CIT vs. V. S. Dempo & Co. P. Ltd, 196 Taxmann 193.
(x) In the case of Samsung India Electronics Limited, 338 ITR 186, it was held that when assessee able to proves that prices of raw material purchased from holding company is reasonable, then there cannot be any addition.
(xi) Assessing Officer having rejected the books of account and applied the net profit rate for the purpose of computing income, no disallowance could be made nder section 40A (3).(A.Y. 2002â€03). Refer, ITO v Sadhwani Brothers, 58 DTR 368.
(xii) Delhi High Court in the case of Nestle India Limited, 57 DTR 65 held that Once it is found that having n regard to the nature , quantum and quality assurance aspects of technical know how and other services provided to the assessee by the parent/ foreign company , compensation paid in the form of royalty / consideration can not be treated as excessive or unreasonable . Tribunal was justified in deleting the addition made by AO by relying upon section 40A (2) (b) and section 92. ( Asst Year 1997â€98).
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