2022 (3) TMI 1536 - AT - Income Tax

Bogus LTCG - Addition u/s 68 - HELD THAT - We found that the findings of the revenue authorities are not justified and are irrational, they have deliberated the matter without due application of mind, identity of the investor had duly disclosed by the assessee and identified by the AO, all the transactions were through proper banking channel, no cash deposit was found as alleged by the AO, assessee has discharged its duty by providing all the relevant material required for the investigation. Therefore, application of section 68 of the income tax act in the instant case is not reasonable and uncalled-for. Disallowance of Belated remittance of EPF contributions - statutory dues paid after the due date but before filing of the ITR u/s 139(10) - HELD THAT - Employer s contribution admittedly paid before the date of filing of return is allowable u/s 43B. As in the present case which is for the asst. year 2013-14, it is an undisputed fact that the Employees contribution for EPF was duly deposited by the Assessee Company before the due date of filing of return u/s 139(1) - The year under consideration is also before the effective date (01.04.2021, AY 2021-22 onwards) of the amended provision by Finance Bill 2021. Accordingly, disallowance could not be made in respect of PF/ESI paid within the due date of filing return of income. Appeal of the assessee is allowed to this extent. Disallowance of Capital Expenditure - HELD THAT - As assessee has failed to provide required information regarding construction of the temporary hutments, however, if it is proved that such structures were constructed on temporary basis and were used for the purpose of business of the assessee, a deduction of expenditure will be allowable, if the same is revenue in nature or depreciation would be allowed if the same is capital in nature. 100% disallowance without disputing the actual incurrence of the expenditure which is used for the purpose of the business of the assessee is unwarranted and bad in law. Therefore, this Ground of appeal is directed to restore back to files of AO to reassess the same.

Issues Involved:
1. Addition of share application money.
2. Addition of delayed payment of statutory dues.
3. Addition of capital expenditure.
4. Addition of donation and charity expenses.
5. Addition of interest on late deposit of TDS.

Issue-wise Detailed Analysis:

1. Addition of Share Application Money:
The first issue pertains to the addition of Rs.1,30,60,000/- towards share capital by treating it as income under Section 68 of the Income Tax Act. The Assessing Officer (AO) and the Commissioner of Income Tax (Appeals) [CIT(A)] concluded that the share application money received from M/s Mahabali Enclave Pvt. Ltd. was not genuine, citing the lack of creditworthiness and the company being a "penny-stock company." The assessee argued that it had provided sufficient evidence, including PAN cards, bank statements, and assessment orders of the investor company. The Tribunal found that the AO did not scrutinize the matter appropriately and that the identity of the investor company was established. Hence, the application of Section 68 was deemed unreasonable, and this ground of appeal was decided in favor of the assessee.

2. Addition of Delayed Payment of Statutory Dues:
This issue involves the disallowance of statutory dues of Rs.1,60,35,365/-, which were paid after the due date but before the filing of the Income Tax Return (ITR) under Section 139(1). The disallowance consisted of EPF contributions, unpaid VAT, and unpaid professional tax. The Tribunal upheld the disallowance of VAT and professional tax as they were not pressed by the assessee. However, for the EPF contributions, it was found that both the employer's and employee's contributions were paid before the due date of filing the return. The Tribunal referred to various judgments and concluded that the disallowance of the employee's contribution was not justified under Section 36(1)(va) and Section 43B, and hence, directed to delete the disallowance for the employee’s contribution. This ground was partly allowed in favor of the assessee.

3. Addition of Capital Expenditure:
The third issue concerns the disallowance of Rs.40,22,979/- debited to the profit and loss account as capital expenditure for constructing temporary sheds for labor hutment. The AO disallowed the expenditure as it was considered capital in nature. The assessee argued that these were temporary structures eligible for 100% depreciation. The Tribunal found that the assessee failed to provide adequate evidence regarding the construction of temporary hutments and directed the AO to reassess the expenditure based on actual facts and legislative intent. This ground was allowed for statistical purposes.

4. Addition of Donation and Charity Expenses:
The fourth issue involves the disallowance of Rs.6,13,011/- on account of donation expenses. The AO disallowed the entire amount, while the CIT(A) allowed 50% of the expenses, considering them necessary for business expediency. The Tribunal agreed with the CIT(A) that the expenses were incurred for commercial expediency and allowed the entire amount as deductible expenditure. This ground was decided in favor of the assessee.

5. Addition of Interest on Late Deposit of TDS:
The final issue pertains to the addition of Rs.21,64,220/- as interest on the late deposit of TDS. The AO disallowed the interest, treating it as a statutory liability not deductible as business expenditure. The assessee argued that the funds were used for business purposes, and hence, the interest should be allowed as a business expense. The Tribunal referred to various judgments and upheld the disallowance, finding no merit in the assessee's contention. This ground was dismissed.

Conclusion:
The appeal was partly allowed for statistical purposes, with the Tribunal directing reassessment on certain grounds and providing relief on others. The detailed analysis and consideration of relevant judgments and legislative provisions ensured a comprehensive and fair resolution of the issues involved.

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