2010 (12) TMI 914 - AT - Income Tax

Disallowance u/s 40A(2)(b) - as per AO there was a phenomenal increase in the expenses under this head compared to A.Y 2005-06 which was only Rs.50,000/- as against Rs.18,00,000 in the present A.Y., when all the factors for conducing the business in the present Assessment year also existed without any noteworthy change - Held that - It was the claim of the Assessee that M/s. Kukreja Services Pvt. Ltd. incurred all the expenses relating to the building i.e. payment rent, electricity charges, security expenses, gardening expenses, computer expenses, accountant and all the other maintenance expenses and that the business centre charges was on account of office premises with all facilities provided by M/s. Kukreja Services Pvt. Ltd. The assessee did not provide any material by way of bills raised, correspondence, etc. to enable AO to verify whether any services were rendered by Kukreja Services Pvt. Ltd. to warrant the payments. In fact only the Profit and Loss account and Balance Sheet of M/s.Kukreja Services Pvt. Ltd. was been filed but no details of what services were rendered and how M/s. Kukreja Services Pvt. Ltd. has allocated the expenses to its sister concern/related parties have been filed. There is no consistency in the allocation of expenses by the said M/s. Kukreja Services Pvt. Ltd. Even before the tribunal, the Assessee has not produced any evidence to substantiate the increase in payment of charges in this A.Y. compared to the earlier year. The submissions made before us are very general without any supporting evidence. In these circumstances it would be appropriate to set aside the order of CIT(A) on this issue and remit the issue to the AO for fresh consideration and affording the Assessee an opportunity of letting in evidence to substantiate the submissions made before us.

Issues Involved:
1. Disallowance under Section 40A(2)(b) of the Income Tax Act.
2. Reasonableness and justification of payments made to sister concerns.
3. Comparison of expenses between assessment years 2005-06 and 2006-07.
4. Adequacy of evidence provided for services rendered by sister concerns.

Detailed Analysis:

1. Disallowance under Section 40A(2)(b) of the Income Tax Act:
The primary issue in this appeal is the disallowance of Rs. 29,67,341/- under Section 40A(2)(b) of the Income Tax Act. The assessee, a partnership firm engaged in real estate, paid various sums to its sister concerns, which the Assessing Officer (AO) deemed excessive and unreasonable, leading to disallowance.

2. Reasonableness and Justification of Payments Made to Sister Concerns:
The assessee made payments to sister concerns for services such as business center charges, administration charges, salary reimbursement, conveyance reimbursement, and motor car expenses reimbursement. The AO disallowed these payments, citing a significant increase compared to the previous year and lack of adequate justification and evidence for the services rendered.

3. Comparison of Expenses Between Assessment Years 2005-06 and 2006-07:
The AO compared the expenses incurred in the assessment years 2005-06 and 2006-07, noting a substantial increase from Rs. 50,000/- to Rs. 30,73,476/-. The AO argued that the factors for conducting business remained unchanged, making the increase unjustifiable. The assessee contended that the increase was due to the completion of the Tulip project and the commencement of business activities related to the sale of flats.

4. Adequacy of Evidence Provided for Services Rendered by Sister Concerns:
The AO disallowed the expenses due to the assessee's failure to provide detailed evidence, such as bills, correspondence, or debit notes, to substantiate the services rendered by the sister concerns. The Tribunal noted that the AO should have restricted the disallowance to the extent the expenditure was excessive or unreasonable rather than disallowing the entire amount.

Tribunal's Findings:

Second Group of Payments:
The Tribunal agreed with the assessee's contention that the AO incorrectly considered the entire payment under salary reimbursement, conveyance reimbursement, and motor car expenses reimbursement for disallowance. The correct amount paid to related parties was Rs. 12,73,476/-, not Rs. 30,73,476/-. The Tribunal directed that only 25% of the motor car expenses reimbursement (Rs. 7,52,416/-) should be disallowed due to lack of evidence, reducing the disallowance under this head.

First Group of Payments:
Regarding the business center charges and administration charges paid to M/s. Kukreja Services Pvt. Ltd. (KSPL), the Tribunal found that the assessee did not provide sufficient evidence to justify the steep increase in expenses. The Tribunal set aside the CIT(A)'s order and remitted the issue to the AO for fresh consideration, allowing the assessee an opportunity to furnish necessary evidence to justify the payments.

Conclusion:
The Tribunal partly allowed the assessee's appeal, directing the AO to reconsider the disallowance of payments made to KSPL after providing the assessee an opportunity to submit evidence. The disallowance related to salary reimbursement, conveyance reimbursement, and motor car expenses reimbursement was restricted to 25% of the motor car expenses reimbursement due to lack of evidence. The appeal was thus partly allowed, with directions for further examination by the AO.

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