2018 (9) TMI 1885 - AT - Income Tax

Addition u/s 40A - assessee given subcontract to persons specified - HELD THAT - As decided in own case 2018 (4) TMI 1747 - ITAT DELHI disallowance under this section is made in respect of the expenses incurred or payments made which are not deductible. This section has no application to income aspect of the assessee. As the AO has made disallowance u/s 40A(2)(b) in respect of income which the assessee in his opinion ought to have earned rather than certain expenses incurred, the provisions of this section are not attracted. Therefore, uphold the impugned order on this score deleting the disallowance.- Decided in favour of assessee.

Summary

Issues:
1. Addition made by Assessing Officer under section 40A(2)(b) of the Income Tax Act.
2. Tax liability on Joint Venture (JV) as an Association of Person (AOP).

Issue 1: Addition made under section 40A(2)(b) of the Income Tax Act:
The case involved a Joint Venture (JV) formed by three entities for construction contracts. The Assessing Officer made an addition of &8377; 93,12,189 by computing the profit of the JV at 4% of the gross receipts, alleging that the JV had given subcontracts to entities specified under section 40A(2)(b) of the IT Act. However, the CIT (A) deleted the addition based on various judicial findings, including the case of CIT vs. Oriental Structural Engineers P. Ltd. and KMC Constructions P. Ltd, where it was held that JVs formed solely to secure contracts cannot be taxed as AOP. The High Court further clarified that section 40A(2) is not applicable to JVs of such nature, reiterating that no tax liability can be attributed to a JV acting as a pass-through entity with minimal expenses.

Issue 2: Tax liability on Joint Venture (JV) as an Association of Person (AOP):
The revenue challenged the CIT (A)'s decision before the Tribunal, arguing that the JV should be taxed as an AOP and that the addition made by the Assessing Officer was justified. However, the Tribunal upheld the CIT (A)'s decision, citing previous orders in similar cases where it was held that the provisions of section 40A(2)(b) do not apply to the income aspect of the assessee, but rather to expenses incurred or payments made. The Tribunal emphasized that the AO's estimation of the assessee's profit did not justify invoking section 40A(2)(b) as it pertains to expenses, not receipts. The Tribunal also referred to earlier cases where similar issues were decided in favor of the assessee, concluding that the JV should not be taxed as an AOP and that the addition made by the Assessing Officer was not valid.

In conclusion, the Tribunal dismissed the revenue's appeal, upholding the CIT (A)'s decision based on established legal principles and precedents. The judgment clarified that in cases where JVs are formed primarily to secure contracts and act as pass-through entities with minimal expenses, no tax liability can be attributed to the JV as an AOP. The decision was consistent with previous rulings and highlighted that section 40A(2)(b) pertains to expenses, not income, and should not be misapplied to estimate profits of the assessee.