2017 (2) TMI 1432 - AT - Income Tax

Addition made u/s 40A(2)(b) - payment made to related party - HELD THAT - As decided in KEC-Delco-Vraha (JV) 2016 (11) TMI 1642 - 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. Uphold the impugned order on this score deleting the disallowance - Decided in favour of assessee.

Summary

Issues:
1. Interpretation of tax laws regarding double taxation.
2. Application of CBDT instructions in assessments.
3. Taxation of profits arising from business activities.
4. Consideration of relevant legal precedents in tax assessments.
5. Determination of excessive payments to related parties under section 40A(2)(b).

Issue 1: Interpretation of tax laws regarding double taxation.
The appellant challenged the assessment order citing Article 265 of the Constitution and legal principles against double taxation. Referring to Supreme Court decisions, the appellant argued that the same income cannot be taxed twice. The contention was that since the leading partner had already declared the income, taxing it in the hands of the appellant would amount to double taxation.

Issue 2: Application of CBDT instructions in assessments.
The appellant highlighted CBDT's Instruction No. F. No. 75/19/191/62-ITJ post the Supreme Court judgment in a specific case. The instruction emphasized that once a partner's share of income is assessed, the same income cannot be reassessed at the firm level. The appellant argued that the assessment should prioritize the firm's assessment, and partners should be assessed accordingly.

Issue 3: Taxation of profits arising from business activities.
The appellant contended that the profits should be taxed to the entity actually carrying out the business activities. In this case, as the leading partner had conducted all the construction work and declared the income, the joint venture (JV) was merely a special purpose vehicle for bidding. Thus, the appellant argued that the JV should not be taxed separately for the same income.

Issue 4: Consideration of relevant legal precedents in tax assessments.
The appellant cited a press release by CBDT and a Delhi High Court case to support the argument that JVs formed for specific projects should not be treated as an Association of Persons (AOP) for taxation purposes. The appellant emphasized that such consortiums should not be taxed collectively, as each entity had already been assessed individually.

Issue 5: Determination of excessive payments to related parties under section 40A(2)(b).
The Tribunal analyzed the applicability of section 40A(2)(b) in disallowing excessive payments to related parties. Referring to a similar case, the Tribunal held that the disallowance under this section pertains to expenses incurred, not income earned. Therefore, the disallowance made by the Assessing Officer was deemed unjustified, and the appellant's claim was allowed based on the Tribunal's decision in a related case.

In conclusion, the Tribunal allowed the appeal, considering the legal arguments presented by the appellant regarding tax laws, CBDT instructions, business activities, legal precedents, and disallowance of excessive payments to related parties under section 40A(2)(b).