2015 (5) TMI 351 - AT - Income Tax

Disallowance u/s 40A(3) - Held that - Facts in the case of the assessee are similar to the facts involved in the case of M/s Glitz Builders and Promoters Pvt. Ltd. (2015 (5) TMI 384 - ITAT DELHI) we, therefore, by respectfully following the said order delete the impugned addition made by the AO and sustained by the ld. CIT(A) also agreeing with the contention of the assessee has not claimed any deduction in respect of cost of the purchase of the land, whether original or additional payment. When the cost of the land, as well as additional payment is not claimed by the assessee as deduction, the question of any disallowance u/s 40A(3) or otherwise in the case of the assessee does not arise. - Decided against revenue. Interest on post dated cheques (PDC) paid out of books of accounts - CIT(A) deleted the addition - Held that - CIT(A) has not deleted the addition but has only directed to recalculate the interest as After examining the loose papers seized at the time of search at the assessee s premises, it was noticed that interest is paid on the PDCs only during the period of extension of PDCs and, therefore, he directed the Assessing Officer to recompute the interest on PDCs at the time of extension of the PDCs. He has further observed that if it is not possible to work out the extension of PDCs in each case, then the Assessing Officer is directed to recompute interest on PDCs after six months from the date of issue of the PDCs. See ACIT Vs M/s Pricison Infrastructure Pvt. Ltd. 2015 (2) TMI 105 - ITAT DELHI - Decided against revenue. Additional payment in violation of Stamp Duty Act, 1899 - CIT(A) deleted the addition made by AO in view of the provisions of Section 37(1) - Held that - This issue is covered in favour of the assessee vide order in the case of M/s West Land Developers Pvt. Ltd Vs ACIT 2014 (12) TMI 254 - ITAT DELHI as these additional payments made to the parties which admittedly have not been routed as an expense in assessee s P&L A/c has been wrongly added as an addition in assessee s hands. - Decided in favour of assessee. Addition on account of deemed dividend - CIT(A) deleted addition - Held that - the assessee had shown the impugned amount in its balance sheet as current liability which was received as an advance against the purchase of suitable land. The AO although invoked the provisions of Section 2(22)(e) of the Act but could not bring any material on record to substantiate that the amount in question was a loan or deposit and not the advance received from associates concern M/s Countrywide Promoters Pvt. Ltd.. We, therefore, by keeping in view the ratio laid down in case of CIT Vs. Ankitek Pvt. Ltd. (2011 (5) TMI 325 - DELHI HIGH COURT), do not see any valid ground to interfere with the findings of the ld. CIT(A). - Decided against revenue.

Summary

Issues Involved:
1. Validity of the assessment order under Section 143(3) instead of Section 153C.
2. Relevance and nexus of seized material from the BPTP group.
3. Disallowance of additional payments for land purchase.
4. Disallowance under Section 40A(3).
5. Addition of interest on post-dated cheques (PDCs).
6. Addition under Section 37(1) for additional payments violating the Stamp Duty Act.
7. Addition under Section 2(22)(e) for deemed dividend.

Issue-wise Detailed Analysis:

1. Validity of Assessment Order:
The appellant contended that the assessment should have been made under Section 153C instead of Section 143(3). However, this ground was not pressed by the appellant during the proceedings, and thus, it required no adjudication.

2. Relevance and Nexus of Seized Material:
The appellant argued that the seized material from the BPTP group had no relevance to their case. The CIT(A) held that the material did not belong to the appellant. The tribunal noted that the CIT(A) had made findings based on mere surmises and conjectures without proof and corroboration by independent evidence.

3. Disallowance of Additional Payments for Land Purchase:
The appellant argued that additional payments for land purchase were not claimed as deductions, thus no disallowance should be made. The tribunal found that the facts were similar to a previous case (M/s Glitz Builders and Promoters Pvt. Ltd.), where it was held that since the cost of land and additional payments were not claimed as deductions, disallowance under Section 40A(3) or otherwise did not arise. The tribunal deleted the disallowance.

4. Disallowance under Section 40A(3):
The appellant contended that no deduction was claimed for the payments made, thus disallowance under Section 40A(3) was not justified. The tribunal, following the precedent set in M/s Glitz Builders and Promoters Pvt. Ltd., deleted the disallowance, stating that the section did not apply as no deduction was claimed for the purchase of land or additional payments.

5. Addition of Interest on PDCs:
The appellant argued against the addition of interest on PDCs paid out of books. The tribunal referred to a similar case (ACIT Vs M/s Pricison Infrastructure Pvt. Ltd.), where it was held that interest on PDCs should be recomputed only for the period of extension. The tribunal found no merit in the department's appeal, as the CIT(A) had directed a recalculation based on seized documents.

6. Addition under Section 37(1) for Additional Payments Violating Stamp Duty Act:
The appellant contended that additional payments were not claimed as deductions, thus disallowance under Section 37(1) was not justified. The tribunal referred to the case of M/s West Land Developers Pvt. Ltd., where it was held that since the expenditure was not claimed as a deduction, disallowance under Section 37(1) did not arise. The tribunal found no merit in the department's appeal.

7. Addition under Section 2(22)(e) for Deemed Dividend:
For the assessment year 2008-09, the department appealed against the deletion of addition under Section 2(22)(e) for deemed dividend. The tribunal referred to the judgment of the Hon'ble Jurisdictional High Court in CIT Vs. Ankitek Pvt. Ltd., which held that loans or advances given to a concern not being a shareholder cannot be treated as deemed dividend. The tribunal upheld the CIT(A)'s decision to delete the addition.

Conclusion:
The appeals of the assessees were partly allowed, and those of the department were dismissed. The tribunal followed precedents and legal principles to adjudicate on the issues, ensuring that disallowances were not made where deductions were not claimed, and that additions were justified only when supported by relevant evidence.