2016 (1) TMI 797 - AT - Income Tax

Addition on account of estimation of annual letting value while computing the income from house property - Held that - AO as well as CIT(A) have drawn adverse inference for enhancing the ALV mainly on the ground that firstly the assessee has taken interest free deposit from the tenants and if such deposits would not have been taken then the rental value would have been more; and secondly the market rate at which the flat was rented to M/s Futura Polyester Ltd was much higher than the rent received from assessee from its other tenants i.e. Centurion Bank and Johnson 8, 78, 595/- has been given by the CIT(A) when the cost of construction of boundary wall itself was only 1, 63, 048/- which was the basis for the disallowance by the Ld. CIT(A). Hence in the interest of justice we feel that this matter should also be restored back to the file of the AO to decide the issue afresh after calling for the details and examine the nature of the expenditure aggregating 8, 78, 595/-. If such expenditure are purely for repairs without creating any capital asset of enduring nature then such expenditure should be allowed as revenue expenditure - Decided in favour of assessee for statistical purposes. Addition on account of delayed payment of ESIC and PF respectively - Held that - All these payments have been made within the grace period prescribed under the respective acts and in any case all the payments have been made much before the due date of the filing of the return of u/s 139(1) and accordingly such payment are allowable u/s 43B. - Decided in favour of assessee. Disallowance of expenditure claimed as deduction u/s 35AB(2AB) - CIT(A) allowed the claim - Held that - If the entire expenditure incurred by the assessee on development of facility has been approved then the said expenditure to be allowed for the purpose of weighted deduction. The approval here in this case was granted during the previous year relevant to the assessment year thus the assessee was entitled to claim weighted deduction in respect of the entire expenditure incurred under section 35AB of the Act. Nowhere it has been provided under the section that R&D facility is to be approved from a particular date and then only it would be allowable from that date only. Moreover it is also clear from Form 3CM which does not give any cut off date for the approval. Accordingly respectfully following the same we uphold the order of the CIT(A) on this score allowing the claim.- Decided in favour of assessee. Rejection of books of accounts - exclusive method of CENVAT & VAT - CIT(A) deleted the rejection - Held that - So far as the AO s observation on the exclusive method of CENVAT & VAT and that the assessee should provide each and every item of stock corresponding to CENVAT & VAT in proof thereof the assessee s contentions had been that the products manufactured by the assessee are very huge and numerous and accordingly item to item correlation was not really feasible. Under such circumstance when the details of opening stock closing stock quantity value rates are available which are subjected to verification and cross check then it is suffice to hold that CIT(A) was correct in holding that there is no reason for rejecting the books of accounts. On the issue of accounting on scrap it has been found that assessee has been recording the same at the time of sale and not at the time of generation of scrap. The assessee was following a particular method of accounting of scrap from last several years which cannot be rejected unless such a method of accounting is not correct. Further as pointed out by the Ld. Counsel this method of accounting is followed and accepted by the department. Lastly Ld. Counsel before us submitted that right from AY 2001-02 to AY 2006-07 the assessments have been completed u/s 143(3) wherein the income has been assessed without rejection of books of accounts or estimation of gross profit on similar method of accounting and on similar facts. The Ld. AO has not pointed out any difference in this year. - Decided in favour of assessee.

Issues Involved:
1. Addition of Rs. 53,48,000/- as 'income from house property' by estimating the annual letting value of property.
2. Disallowance of overseas commission of Rs. 3,12,752/- u/s 40(a)(ia).
3. Disallowance of Rs. 8,78,599/- treating repair expenditure as capital in nature.
4. Disallowance of expenditure of Rs. 1,63,048/- on repairs to boundary wall.
5. Addition of Rs. 48,064/- and Rs. 1,41,776/- for belated payment of ESIC and PF.
6. Allowance of R&D expenditure of Rs. 71.98 lakhs.
7. Rejection of books of accounts and addition of Rs. 303.11 lakhs by increasing the gross profit.

Issue-wise Detailed Analysis:

1. Addition of Rs. 53,48,000/- as 'income from house property':
The Assessing Officer (AO) enhanced the Annual Letting Value (ALV) of certain properties based on higher rents received from comparable properties in the same building. The assessee argued that the actual rent received was more than the municipal valuation rate. The Tribunal referred to the Bombay High Court's decision in CIT vs Tip Top Typography, which allows using municipal valuation rates for determining ALV. The matter was remanded back to the AO for re-evaluation as per the guidelines laid down by the High Court, and the ground was treated as partly allowed for statistical purposes.

2. Disallowance of overseas commission of Rs. 3,12,752/- u/s 40(a)(ia):
The AO disallowed the commission on the grounds that the assessee did not prove that the amount was not taxable in the hands of the recipient. The Tribunal found that neither the AO nor the CIT(A) provided specific findings on the taxability of the recipient. The issue was remanded back to the AO for examination, and the ground was treated as allowed for statistical purposes.

3. Disallowance of Rs. 8,78,599/- treating repair expenditure as capital in nature:
The AO treated certain repair expenditures as capital in nature. The Tribunal found that the CIT(A) did not provide specific findings for the disallowance and noted that the cost of constructing the boundary wall was only Rs. 1,63,048/-. The matter was remanded back to the AO to examine the nature of the expenditure, and the ground was treated as allowed for statistical purposes.

4. Disallowance of expenditure of Rs. 1,63,048/- on repairs to boundary wall:
The Tribunal noted that the CIT(A) had disallowed the expenditure considering it as capital in nature. The issue was remanded back to the AO to verify the details and nature of the expenditure, and the ground was treated as allowed for statistical purposes.

5. Addition of Rs. 48,064/- and Rs. 1,41,776/- for belated payment of ESIC and PF:
The Tribunal found that all payments were made within the grace period prescribed under the respective acts and before the due date of filing the return u/s 139(1). Therefore, the payments were allowable u/s 43B, and the ground was treated as allowed.

6. Allowance of R&D expenditure of Rs. 71.98 lakhs:
The AO disallowed the R&D expenditure incurred before the approval date by the Department of Scientific and Industrial Research (DSIR). The Tribunal upheld the CIT(A)'s decision, which allowed the entire expenditure, citing the legislative intent to encourage R&D and the absence of a cutoff date in the approval. The ground raised by the revenue was dismissed.

7. Rejection of books of accounts and addition of Rs. 303.11 lakhs by increasing the gross profit:
The AO rejected the books of accounts due to discrepancies in CENVAT/VAT credits, stock valuation, and scrap accounting. The CIT(A) found the discrepancies to be procedural and not substantial enough to reject the books. The Tribunal affirmed the CIT(A)'s decision, noting that similar methods of accounting were accepted in previous years without rejection or gross profit estimation. The ground raised by the revenue was dismissed.

Conclusion:
The assessee's appeal was partly allowed for statistical purposes, and the revenue's appeal was dismissed.

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