2014 (1) TMI 124 - AT - Income Tax

Estimation of income @ 10% of total sale consideration Held that - The ld. CIT(A) observed that there was no evidence to show that the notice dated 13.11.09 was ever served by the AO upon the assessee - He further observed that the AO estimated the 10% profit on the sale consideration without any valid basis - He further observed that the AO had not indicated in the assessment order anything, as to why, the books of account of the assessee were not reliable or that there was any defect in the books of accounts, which were well audited and the audit report was submitted along with the return of income - The onus was on the AO to prove that the assessee had earned more income than that was shown in the books of accounts. Tax not deducted at source on expenses of brokerage and legal and professional fees Held that - The TDS was duly made by the assessee relating to brokerage fees and no TDS was deductable on the amount paid as professional fees as the amount paid was below the prescribed limit. Property tax paid Held that - The AO had wrongly disallowed the genuine expenditure of property tax paid by the assessee to the local authority - The same was paid through account payee cheques and further it was reflected in the books of account of the assessee Decided against Revenue.

Summary

Issues:
1. Addition on estimation of income @ 10% of total sale consideration
2. Addition under section 40(a)(ia) for expenses of brokerage and legal fees
3. Addition in respect of property tax paid

Analysis:

Issue 1:
The AO made additions based on estimation under section 144 of the Income Tax Act due to the lack of compliance by the assessee with a show cause notice. The AO estimated income at 10% of the total sale consideration as the assessee failed to provide details of expenses. In the first appeal, the assessee argued that no show cause notice was served and contested the estimation made by the AO. The CIT(A) found no evidence of the notice being served and criticized the AO for not justifying the estimation or pointing out defects in the audited books of accounts. Relying on legal precedents, the CIT(A) deleted the additions, emphasizing the burden of proof on the AO to show additional income. The Tribunal upheld the CIT(A)'s decision, noting the absence of evidence supporting the AO's additions.

Issue 2:
The AO disallowed expenses of brokerage and legal fees under section 40(a)(ia) as no TDS was deducted. The assessee demonstrated TDS payment on brokerage and explained the absence of TDS on professional fees below the prescribed limit. The CIT(A) verified the TDS compliance and reasoned that no TDS was required on professional fees, leading to the deletion of the additions. The Tribunal found no fault in the CIT(A)'s order, supporting the decision based on the records and legal provisions.

Issue 3:
Regarding the addition of property tax paid, the AO disallowed the amount without proof of payment. However, the CIT(A) confirmed the genuine payment of property tax by the assessee through proper documentation and account entries. The Tribunal upheld the CIT(A)'s decision, emphasizing the proper payment process and lack of grounds to challenge the findings. The property tax payment was deemed valid and correctly reflected in the assessee's accounts, leading to the deletion of the AO's addition.

In conclusion, the Tribunal dismissed the Revenue's appeal, affirming the CIT(A)'s well-reasoned orders on all issues. The judgments were based on thorough assessments of the evidence, legal provisions, and precedents, ensuring fair treatment and upholding the principles of taxation law.