2008 (2) TMI 885 - HC - Income Tax

Disallowance u/s 40A(3) - Cash payments against capital expenditure? - HELD THAT - We have heard learned counsel for the revenue. The Tribunal has found as a fact that the annual reports for the assessment year 1989-90 of the assessee clearly shows the outstanding loans to the three parties. Copies of the loan account of the three parties for the period comprising the previous year are also available on the record. The plea of the assessee that the payments were made in respect of the capital account have been rightly accepted by the Commissioner of Income-tax (Appeals). The Assessing Officer without giving any finding on the issue has merely gone on the presumption that the books of account have been manipulated. The Assessing Officer has also not given a finding that the sum in question was actually revenue expenditure which were claimed as deduction in profit and loss account. Therefore the Tribunal has rightly concluded that the payment in question were made on account of capital account therefore provisions of section 40A(3) of the Act were not attracted. Thus we do not find any merit in this appeal and no substantial question of law arises for determination of this Court. Hence this appeal is dismissed.

Summary

Issues:
1. Disallowance under section 40A(3) of the Income-tax Act, 1961 for cash payments made by the assessee.
2. Onus of proof on the Assessing Officer regarding the nature of payments made by the assessee.

Analysis:

Issue 1: Disallowance under section 40A(3) of the Income-tax Act, 1961
The appellant, a company manufacturing switches, made cash payments to certain parties which were disallowed by the Assessing Officer under section 40A(3) of the Act. The Commissioner of Income-tax (Appeals) upheld the disallowance, leading to an appeal to the Tribunal. The Tribunal remanded the matter to the Assessing Officer for fresh adjudication based on the appellant's claim that the payments were of capital nature and not covered under section 40A(3). Upon reassessment, the Assessing Officer upheld the disallowance, citing manipulated entries in the books of account. However, the Commissioner of Income-tax (Appeals) deleted the addition, emphasizing that the payments were related to outstanding balances on account of loans and advances, supported by documentary evidence.

Issue 2: Onus of proof on the Assessing Officer
The Commissioner of Income-tax (Appeals) highlighted that the Assessing Officer failed to provide concrete evidence to establish that the cash payments were indeed for revenue expenditure and not for loans and advances. The Commissioner noted that the burden of proof rested entirely on the Assessing Officer to demonstrate that the entries in the books were related to expenditure covered under section 40A(3). The Commissioner criticized the Assessing Officer for not addressing the crucial issue of whether the payments were initially recorded as expenditure and later altered to appear as loans and advances. The Commissioner relied on the balance sheet, annual report, and other documents to support the appellant's claim that the payments were not in the nature of expenditure but were adjustments for outstanding balances on account of loans and advances.

In conclusion, the Tribunal affirmed the Commissioner's decision, stating that the payments were made on account of capital and not subject to section 40A(3) provisions. The Tribunal rejected the revenue's appeal, emphasizing the factual findings supporting the appellant's position. Consequently, the appeal was dismissed, with no substantial question of law identified for consideration by the Court.