2012 (10) TMI 323 - AT - Income Tax

Activity of Horse racing - ad-hoc dis-allowance on ground that assessee has not maintained any separate vouchers/receipts for payments made to winning punters - AY 08-09 - Held that - Issue is covered by the order of the ITAT, in assessee s own case for AY 2007-08 wherein such ad hoc dis-allowance was deleted on ground that looking to the nature of activity of assessee, it is difficult to maintain complete details about all the persons. The entire payment was through computerized system. The payment was made to the person holding the winning ticket and Department has not brought to notice of any instance of payment when there was no winning ticket. Following the aforesaid, addition made is deleted Dis-allowance u/s 40A(3) - payment in excess of Rs. 20000/- in cash made to winning punters - Held that - Issue is covered by the order of the ITAT, in assessee s own case for AY 2007-08 wherein it was held that considering the nature of activity of the Assessee and the necessity for them to pay cash to the winners immediately, condition under Rule 6DD for exemption viz., transactions should have taken place on Bank Holidays should be read down in the case of the Assessee. If the transaction took place beyond the normal Banking Hours on working days and transaction which took place on Sundays and Holidays, it would not attract the provisions of sec 40A(3). Hence in view of aforesaid, matter remitted back to file of AO to re-compute the disallowance u/s 40A(3) as per the above disallowance and the Assessee shall furnish the particulars about the timings of the payment of the winnings to punters Dis-allowance u/s 40(a)(ia) - commission - Held that - Issue is covered by the order of the ITAT, in assessee s own case for AY 2007-08 wherein matter was restored to file of AO to give another opportunity to the assessee to present its case and establish that there is no principal agent relation ship between the two Clubs and amount paid by the assessee to other Race Clubs is only sharing of the profit and not in the nature of collection. same direction given for current year - Decided in favor of assessee for statistical purposes

Summary

Issues Involved:
1. Sustaining the ad-hoc disallowance of Rs. 27,64,77,938/-.
2. Disallowance of Rs. 5,00,990/- under section 40A(3) of the Act.
3. Charging of interest under section 234B.
4. Restricting the disallowance of unverifiable payments.
5. Deleting the addition made under section 40(a)(ia) amounting to Rs. 2,94,28,031/-.

Issue-wise Detailed Analysis:

1. Sustaining the ad-hoc disallowance of Rs. 27,64,77,938/-:
The CIT(A) sustained an ad-hoc disallowance due to the assessee's failure to maintain separate vouchers/receipts for payments made to winning punters. The ITAT referred to its earlier decision in the assessee's case for AY 2007-08, where the Tribunal acknowledged the practical difficulties faced by the assessee in maintaining detailed records due to the nature of its operations. The Tribunal noted that the payments were made through a computerized system to persons holding winning tickets, and there was no evidence of payments without winning tickets. Consequently, the ITAT deleted the ad-hoc disallowance of 10% of the total payment for winning bets of less than Rs. 2,500/- each, allowing the assessee's appeal on this issue.

2. Disallowance of Rs. 5,00,990/- under section 40A(3) of the Act:
The AO disallowed Rs. 5,00,990/- under section 40A(3) for cash payments exceeding Rs. 20,000/-. The CIT(A) upheld this disallowance, stating that such payments constitute business expenditure and are covered under section 40A(3). The CIT(A) also rejected the contention that these payments fall under exemptions provided in Rule 6DD(j) due to the availability of banking facilities. The ITAT, referring to its earlier decision for AY 2007-08, recognized the unique nature of the assessee's operations, requiring immediate cash payments to winning punters. The Tribunal directed the AO to re-compute the disallowance, considering payments made beyond normal banking hours or on bank holidays, thereby allowing the ground for statistical purposes.

3. Charging of interest under section 234B:
The ITAT noted that the charging of interest under section 234B is consequential in nature and directed the AO to make necessary adjustments accordingly.

4. Restricting the disallowance of unverifiable payments:
The CIT(A) had restricted the disallowance of unverifiable payments to 10% as against 15% estimated by the AO. The ITAT, in the assessee's appeal, deleted the entire disallowance following its decision for AY 2007-08. Consequently, the ITAT dismissed the revenue's appeal on this ground.

5. Deleting the addition made under section 40(a)(ia) amounting to Rs. 2,94,28,031/-:
The AO disallowed Rs. 2,94,28,031/- under section 40(a)(ia) for non-deduction of TDS on payments made as royalty to other clubs. The CIT(A) deleted this disallowance, referencing an earlier decision where such payments were considered as income sharing, not subject to TDS. The ITAT, referring to its decision for AY 2007-08, restored the issue to the AO to examine the principal-agent relationship between the clubs and adjudicate accordingly, allowing the ground for statistical purposes.

Conclusion:
The assessee's appeal was allowed for statistical purposes, and the revenue's appeal was partly allowed for statistical purposes. The ITAT's decision was pronounced on 16.7.2012.