2016 (5) TMI 311 - AT - Income Tax

Non-refund of the advance amount - whether treated as a business loss? - Held that - We hold that the assessee is at least very much entitled to claim deduction under section 28 of the Act regarding the above amount of ₹ 31 lakhs as business loss. We, thus, direct the Assessing Officer to allow the claimed deduction - Decided in favour of assessee Unaccounted payment for purchase of shares - It was contended that the assessee had already offered this amount of ₹ 2.56 crores to tax as a part of the total surrender of ₹ 5.50 crores - Held that - We agree with this contention of the assessee as it is an established proposition of law that a statement either can be accepted or denied wholly and in its totality. When we consider the statement of these two persons, one represented the assessee and the other PRIL in its totality keeping in mind the documents seized indicating about the ongoing negotiation regarding the acquisition of the property/PRIL ultimately settled in the memorandum of understanding dated September 25, 2005, duly executed by the parties, there is no reason to doubt the claim of the assessee that ₹ 2.56 crores was returned back which was deposited back in the books and surrendered by the assessee as a part of the total surrender of ₹ 5.50 crores, especially when the abovenoted some material facts by the learned Commissioner of Income-tax (Appeals) mentioned above in paragraph 13.3 of the present order have not been disputed. In the background of the above discussion, we hold that the learned Commissioner of Income-tax (Appeals) was very much justified in deleting the addition of ₹ 9.63 crores which is upheld. He, however was not justified in sustaining the addition of ₹ 2.56 crores under section 68 of the Act for the reasons discussed above. The same is, accordingly, directed to be deleted.- Decided in favour of assessee Addition of amount paid for bribe for awarding of contract - Held that - The entire addition made by the Assessing Officer was solely based upon suspicion and surmises. The Assessing Officer has quoted the report of the Vigilance Bureau at pages 50 and 60 of his order revealing the facts that the report of the Vigilance Bureau relied on the contents of accounts was extracted from the pen drive recovered from Shri Chetan Gupta, wherein there was no mention anywhere in the accounts forwarded by the Vigilance Bureau about the name of the assessee or its director. Even the accounts forwarded by the Vigilance Bureau did not contain any reference of Citi Centre, Ludhiana. Shri Chetan Gupta had denied the ownership of the pen drive before the ADIT (Inv.), Ludhiana, during his statement which has been reproduced in the assessment order. The statement recorded during the custody of Punjab Police was not available with the Assessing Officer as it has been confirmed by him, vide letter dated May 26, 2008. Besides, the above material were never provided to the assessee by the Assessing Officer before taking any action against the assessee despite the specific request by the assessee made on December 24, 2004. There was also no statement of confirmation from the alleged recipient or his son regarding the impugned amount. And above all in the case of the recipient, Shri Ravinder Singh, for the alleged bribe, the same has been deleted by the learned Commissioner of Income-tax (Appeals) which was upheld by the Income-tax Appellate Tribunal and ultimately approved by the honourable Delhi High Court - Decided in favour of assessee Addition account of disallowance of brokerage and commission paid for leasing of the mall space - Held that - he properties are all held as business assets and not as house properties. The fixed assets schedule does not show any property as the fixed assets of the property. The plots of land are all shown as stock under schedule 7 to the account. If the expense is incurred for overall business advantage of the assessee then such expense is allowable under section 37 of the Act. We also concur with the findings of the learned Commissioner of Income-tax (Appeals) that merely because any income had not been earned during the year directly from any partner activity, it cannot be said that the related expense is not expense for the business of the assessee. Whether the income has been earned or not and whether the ultimate benefit has accrued immediately or not, the expenses incurred shall be allowable if these have been incurred for business or for commercial expediency. The ratios laid down in the abovecited decisions by the learned authorised representative also supports the above view. Further, that once the expenses have been found to be genuine and having been incurred for the purpose of the business, the quantum of the expenses cannot be examined by the Assessing Officer to adjudicate as to the aspect that how much of the expenses were justifiable and whether the expenses claimed are proportionate or disproportionate vis-a-vis the requirement of the business. Under these circumstances, we are of the view that the learned Commissioner of Income-tax (Appeals) has rightly deleted the addition in question. - Decided in favour of assessee

Summary

Issues Involved:

1. Addition of Rs. 2.56 crores under Section 68 of the Income-tax Act, 1961.
2. Addition of Rs. 31 lakhs under Section 68 of the Income-tax Act, 1961.
3. Deletion of addition of Rs. 9.63 crores out of Rs. 12.19 crores by the Assessing Officer.
4. Deletion of addition of Rs. 21.62 crores by the Assessing Officer.
5. Deletion of addition of Rs. 59,04,788 by the Assessing Officer.

Detailed Analysis:

1. Addition of Rs. 2.56 crores under Section 68 of the Income-tax Act, 1961:

The assessee challenged the addition of Rs. 2.56 crores under Section 68 as unaccounted payment for the purchase of shares in PR Infrastructure Ltd. The Commissioner of Income-tax (Appeals) upheld the addition based on an ex parte statement of Mr. Arun Kapoor, which was not tested by cross-examination. The assessee argued that the amount was part of the total undisclosed income of Rs. 5.50 crores, surrendered during search proceedings, and claimed that the addition resulted in double taxation. The Tribunal found that the authorities did not dispute the payment but could not establish the refund of Rs. 2.56 crores. The Tribunal accepted the assessee's argument that the non-refund of the advance was a business loss incidental to the business and allowed the deduction under Section 28 of the Act.

2. Addition of Rs. 31 lakhs under Section 68 of the Income-tax Act, 1961:

The assessee contested the addition of Rs. 31 lakhs as unexplained cash introduced in the books of account. The Commissioner of Income-tax (Appeals) upheld the addition based on an ex parte statement of Mr. R. K. Dutta, who denied refunding the amount. The Tribunal noted that the authorities accepted the payment but not the refund, despite the assessee's claim that the amount was received back and introduced in the books. The Tribunal held that the non-refund of the advance was a business loss incidental to the business and allowed the deduction under Section 28 of the Act.

3. Deletion of addition of Rs. 9.63 crores out of Rs. 12.19 crores by the Assessing Officer:

The Revenue challenged the deletion of Rs. 9.63 crores out of Rs. 12.19 crores added by the Assessing Officer as unaccounted payment for acquiring shares of PR Infrastructure Ltd. The Commissioner of Income-tax (Appeals) concluded that the assessee paid Rs. 2.56 crores in cash, promised to allot 36,000 square feet constructed area, and paid Rs. 6 lakhs by cheque. The Tribunal upheld the deletion of Rs. 9.63 crores, agreeing with the Commissioner of Income-tax (Appeals) that the existence of the memorandum of understanding (MOU) and the revised terms of the deal justified the deletion. However, the Tribunal directed the deletion of the addition of Rs. 2.56 crores under Section 68, as the assessee had already surrendered this amount as part of the total undisclosed income.

4. Deletion of addition of Rs. 21.62 crores by the Assessing Officer:

The Revenue challenged the deletion of Rs. 21.62 crores added by the Assessing Officer, alleging it was paid as a bribe for awarding a contract by the Ludhiana Improvement Trust/Punjab Government. The Commissioner of Income-tax (Appeals) deleted the addition, finding no evidence to establish the payment. The Tribunal concurred, noting that the addition was based solely on suspicion and surmises, and the report of the Vigilance Bureau did not mention the assessee or its directors. The Tribunal upheld the deletion, citing the Delhi High Court's decision in a similar case.

5. Deletion of addition of Rs. 59,04,788 by the Assessing Officer:

The Revenue challenged the deletion of Rs. 59,04,788 added by the Assessing Officer as disallowance of brokerage and commission paid for leasing of mall space. The Commissioner of Income-tax (Appeals) deleted the addition, finding that the lease income from renting the mall space was accepted as business income in subsequent years. The Tribunal upheld the deletion, agreeing that the expenditure was incurred for overall business advantage and was allowable under Section 37 of the Act. The Tribunal noted that the properties were held as business assets and not as house properties, and the expenses were genuine and incurred for business purposes.

Conclusion:

The Tribunal allowed the assessee's appeal and dismissed the Revenue's appeal, directing the deletion of the additions under Sections 68 and 69B of the Income-tax Act, 1961, and upholding the deletions made by the Commissioner of Income-tax (Appeals).