2019 (5) TMI 1972 - AT - Income Tax

Disallowance being the amount of premium paid for acquiring lease hold rights over a plot of land by the assessee - assessee has filed a declaration u/s 158A(1) stating we forward herewith a declaration in Form No. 8 as prescribed u/s 158A r.w. Rule 16 of the Income Tax Rules, 1962 vis-a-vis ground No. 1 raised in the captioned appeal viz. disallowance of amortization of premium paid for the leasehold land - HELD THAT - We find that the above issue has been decided by in assessee s own case for AY 2004-05 2011 (3) TMI 1630 - ITAT MUMBAI held that the CIT(A) is justified in confirming the disallowance of amortization of the premium paid for leasehold land - Decided against assessee. Ad-hoc disallowance being 5% of the expenses incurred by the appellant - HELD THAT - Similar issue arose before the ITAT C Bench, Mumbai in assessee s own case for AY 2005-06 thus we set aside the order of the Ld. CIT(A) and restore the above matter to the file of the AO to examine the nature of expenditure from the details submitted/or to be submitted by the assessee and decide the issue accordingly keeping in view the provisions of section 37(1) of the Act. Thus the above ground of appeal is allowed for statistical purposes. Disallowance u/s 40(a)(ia) - AO observed that though the appellant has made provision for expenses in the books of accounts but not deducted tax at source - HELD THAT - Similar issue arose before the ITAT in Aditya Biral Nuvo Ltd. 2014 (10) TMI 154 - ITAT MUMBAI - The Bench following the decision in the case of Mahindra Mahindra Ltd. ( 2013 (9) TMI 522 - ITAT, MUMBAI ) held that the assessee had made provisions but not received the bills, that in the subsequent year the provisions made by it were offered for taxation. Therefore, it allowed the appeal filed by the assessee. An examination of the ledger accounts indicates that these are ad-hoc provisions. Being so, following the ratio laid down in above decisions, we delete the disallowance u/s 40(a)(ia) of the Act .Thus the 3rd ground of appeal is allowed. Addition u/s 41(1) - HELD THAT - In the instant case, there is nothing on record to suggest that there was remission or cessation of liability during the impugned assessment year. We fail to understand how the Ld. CIT(A) dismissed the above ground of appeal, after observing that the assessee himself in FY 2009-10 has written back the said credits outstanding for more than three years.We follow the ratio laid down in Bhogilal Ramjibhai Atara 2014 (2) TMI 794 - GUJARAT HIGH COURT and allow the 4th ground of appeal. Disallowance of depreciation claimed by the assessee on additions made during the year to the fixed assets - HELD THAT - Additional evidence being photocopies of sample invoices of the Paper Book filed before us, which were also submitted before the CIT(A) would resolve the contentious issue arising out of the above ground of appeal. We set aside the order of the CIT(A) and restore the matter to the AO to examine the additional evidence and pass an order after giving reasonable opportunity of being heard to the assessee. We direct the assessee to file the relevant documents/evidence before the AO. Thus the 5th ground of appeal is allowed for statistical purposes.

Summary

Issues:
1. Disallowance of premium paid for leasehold rights over a plot of land.
2. Ad-hoc disallowance of expenses incurred by the appellant.
3. Disallowance made under section 40(a)(ia) of the Act.
4. Addition under section 41(1) of the Act.
5. Disallowance of depreciation claimed on additions to fixed assets.

Analysis:

Issue 1:
The first ground of appeal concerns the disallowance of the premium paid for acquiring leasehold rights over a plot of land. The ITAT 'C' Bench decision in the assessee's own case for AY 2004-05 was referred to, where a similar disallowance was confirmed. Given the identical facts, the ITAT upheld the disallowance, following the precedent. Thus, the first ground of appeal was dismissed.

Issue 2:
The second ground raised was against the ad-hoc disallowance of expenses incurred by the appellant. The AO disallowed 5% of the expenses based on lack of specific details. However, the ITAT set aside the Ld. CIT(A)'s order and directed the AO to examine the nature of expenditure from the details submitted by the assessee, allowing the ground for statistical purposes.

Issue 3:
The third ground pertained to the disallowance made under section 40(a)(ia) of the Act. The AO disallowed expenses for which TDS was not deducted. However, the ITAT, following precedents and considering the nature of provisions made, deleted the disallowance under section 40(a)(ia), allowing the third ground of appeal.

Issue 4:
The fourth ground challenged the addition made under section 41(1) of the Act concerning outstanding creditors. The ITAT disagreed with the Ld. CIT(A)'s decision and allowed the appeal, citing the absence of evidence indicating remission or cessation of liability during the relevant assessment year.

Issue 5:
The fifth ground contested the disallowance of depreciation claimed on additions to fixed assets. The AO disallowed the claim due to lack of supporting evidence. However, the ITAT directed the AO to consider additional evidence submitted by the assessee, allowing the ground for statistical purposes.

In conclusion, the ITAT partly allowed the appeal filed by the assessee, setting aside certain disallowances and additions while directing further examination or providing opportunities for submission of additional evidence in specific instances.