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2015 (11) TMI 1007 - AT - Income TaxDisallowance u/s 40(a)(ia) - payment made to the consolidator for transfer of rights - TDS on amount paid to the consolidator u/s 194C or 194H - Held that - Almost 2% of the sale value was being paid by the assessee to Vikram Electric Equipment P. Ltd. as consideration for transferring Vikram Electric Equipment P. Ltd. s rights. This was in terms of the afore-mentioned clause 3.2. of the MOU between the assessee and Vikram Electric Equipment P. Ltd. It has not been shown if such payment is not a fair compensation paid by the assessee to Vikram Electric Equipment P. Ltd. which, anyhow, is not an impediment in holding, as above, that the transactions between the assessee and Vikram Electric Equipment P. Ltd. are on a principle to principle basis, not attracting the provisions of section 194 H of the Act. Pertinently, no addition having been made for the year by the AO, the alternate contention of the assessee to the effect that no addition can be made during the year, stands accepted by both the Authorities below. The provisions of section 40(a) (ia) of the Act in any case do not apply, the assessee having not claimed any deduction for any expenses on account of payment to Vikram Electric Equipment P. Ltd. either in its profit and loss account or in the computation of taxable income filed. It was only that the AO recorded a loss of ₹ 19,700/-. This obviously, did not include any addition of either ₹ 4.02 crores or ₹ 1.24 crores. - Decided in favour of assessee.
Issues Involved:
1. Legality and factual correctness of the CIT(A)'s order. 2. Treatment of Rs. 93,39,946/- as non-genuine expenditure. 3. Disallowance under Section 40(a)(ia) of the Income Tax Act, 1961. 4. Requirement of TDS deduction under Sections 194C or 194H. 5. Impact of disallowance on the appellant's profit and closing stock. Issue-wise Detailed Analysis: 1. Legality and Factual Correctness of the CIT(A)'s Order: The appellant challenged the order dated 24.2.2011 passed by the learned Commissioner of Income-tax (Appeals) XVII, New Delhi, arguing that it was bad in law and wrong on facts. The CIT(A) upheld the Assessing Officer's (AO) decision to treat the amount payable to the consolidator as non-genuine expenditure and disallowed it under Section 40(a)(ia) of the Income Tax Act, 1961. 2. Treatment of Rs. 93,39,946/- as Non-Genuine Expenditure: The appellant company, involved in acquiring and developing land, claimed Rs. 93,39,946/- as payable to the consolidator, M/s. Vikram Electric Equipment (P) Ltd., for the transfer of rights in the land. The AO observed that this amount was not reflected separately in the Profit & Loss Account and was clubbed with the purchase price of land. The sale deeds did not indicate the involvement of the consolidator. The AO noted that M/s. Vikram Electric Equipment (P) Ltd. did not show this amount as income in its Profit & Loss Account, leading to the conclusion that the payment was not genuine. 3. Disallowance under Section 40(a)(ia) of the Income Tax Act, 1961: The AO alternatively observed that the consolidation charges were in the nature of brokerage or service charges subject to TDS under Section 194H or as payment to a contractor under Section 194C. Since no TDS was deducted, the AO disallowed the amount under Section 40(a)(ia). The CIT(A) confirmed this disallowance, rejecting the appellant's argument that the payment was not subject to TDS as it was a principal-to-principal transaction. 4. Requirement of TDS Deduction under Sections 194C or 194H: The CIT(A) held that if the payment was genuine, it would be subject to TDS under Section 194H as brokerage or commission or under Section 194C as a contractor payment. The appellant argued that the payment was not remuneration but an advance credit for the purchase of the remaining land and thus not subject to TDS. However, the CIT(A) found this argument invalid, stating that the excess payment was in the nature of brokerage or commission, requiring TDS deduction. 5. Impact of Disallowance on the Appellant's Profit and Closing Stock: The appellant contended that the disallowance had no impact on its profit liable to tax as the entire purchases formed part of the closing stock. The CIT(A) rejected this argument, stating that the amount had indeed been claimed as a deduction in the Profit & Loss Account, though wrongly clubbed with the cost of land. Consequently, the CIT(A) reduced the value of the closing stock by Rs. 93,39,946/- and upheld the addition to the appellant's income. Tribunal's Decision: The Tribunal noted that the issue was covered in favor of the assessee by previous orders in similar cases, such as M/s. Finian Estate Developers (P.) Ltd. and Zebina Real Estate Pvt. Ltd. It was held that M/s. Vikram Electric Equipment (P) Ltd. acted on a principal-to-principal basis, and the payment did not attract TDS under Sections 194C or 194H. The Tribunal concluded that the transactions were correctly treated as part of the purchase cost of land and did not affect the taxable profits of the assessee during the year. Therefore, the appeal of the assessee was allowed. Result: The Tribunal allowed the appeal of the assessee, reversing the disallowance and addition made by the AO and CIT(A). The order was pronounced in the Open Court on 17th October, 2014.
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