2016 (11) TMI 601 - AT - Income Tax

Reopening of assessment - disallowance of the cost of the roads and fees paid to HUDA - Held that - We do not find any reason to disallow the expenditure, when assessee s project on 1/4th land is using those lands developed by land owning companies as well as other companies. The total cost incurred by them was reimbursed by assessee to an extent of 25% which is same as that of land given for development to assessee. We do not find any merit in the order of the AO and CIT(A) in disallowing the expenditure by reading in between the lines of the agreement. The agreement specifically provides for bearing the cost of roads and development fee payable to HUDA and so assessee reimbursed the cost and also fees paid to HUDA. The Ld. CIT(A) allowed the cost of fees of HUDA paid directly by assessee, but did not allow the amount of fee reimbursed to the land owning companies on the reason that they paid the HUDA fees much earlier to the incorporation of assessee- company. In fact, assessee-company was floated for completing the project which was approved in various individual companies and agreements specifically provide for the cost to be borne by assessee-company. Accordingly, it has made debit entries in the Books of Account, crediting those companies to an extent of 25% of the amount of cost on roads and the HUDA fees paid. Considering the agreements and the entries in the Books of Account, we are of the opinion that this expenditure is allowable as part of project cost. We are also not sure how the expenditure debited to project cost could be disallowed and brought to tax when the project is not complete and assessee was estimating a proportionate income to the extent of the project completed. In view of that, we are not in a position to approve the orders of the AO even on the merits of the additions made. - Decided in favour of assessee

Issues Involved:
1. Reopening of assessment under Section 147.
2. Validity of additions made by the Assessing Officer (AO) in the reassessment.
3. Disallowance of various expenditures by the AO.
4. Relief granted by the Commissioner of Income Tax (Appeals) [CIT(A)] on certain disallowances.
5. Conduct of the Departmental Representative (DR).

Issue-wise Detailed Analysis:

1. Reopening of Assessment under Section 147:
The primary issue was whether the reopening of the assessment under Section 147 was valid. The AO issued notices under Section 148 for the assessment years (AY) 2006-07 and 2007-08, citing reasons related to alleged fraudulent activities by the promoters of the assessee company, specifically involving the manipulation of accounts by the promoters of Satyam Computer Services Ltd. The Tribunal found that the reasons for reopening did not have a live link with the additions made during the reassessment. It was noted that the AO's reasons for reopening were based on examining fraudulent transactions, but no such transactions were identified or added in the final assessment. The Tribunal held that the reopening of the assessment was invalid as there was no tangible material to justify the belief that income had escaped assessment.

2. Validity of Additions Made by the AO in the Reassessment:
The AO made several additions during the reassessment, including disallowances under various sections such as Section 40A(3), Section 40(a)(ia), and Section 37(1). The Tribunal observed that these additions were routine disallowances that could have been examined during a normal scrutiny assessment. The Tribunal emphasized that there was no nexus between the reasons for reopening and the actual additions made. Consequently, the Tribunal held that the reassessment was invalid, as the AO did not assess or reassess the income that led to the reopening.

3. Disallowance of Various Expenditures by the AO:
The AO made several disallowances, including:
- Violation of Section 40A(3) for cash payments exceeding ?20,000.
- Disallowance of interest paid to banks and financial institutions.
- Disallowance of capital expenditures debited to the Profit & Loss (P&L) account.
- Disallowance of costs related to trunk roads and HUDA fees.
The Tribunal found that these disallowances were not justified as they were routine in nature and could have been addressed during a regular assessment. Moreover, the Tribunal noted that the disallowances had no connection to the reasons for reopening the assessment.

4. Relief Granted by CIT(A) on Certain Disallowances:
The CIT(A) provided relief to the assessee on several disallowances made by the AO, including the disallowance of interest and disallowances under Section 40(a)(ia). The Tribunal upheld the CIT(A)'s decision, noting that the relief granted was consistent with the findings of the Tribunal in other similar cases and the established law on the issues. The Tribunal also noted that in some cases, the AO had allowed the claims in the consequential orders after examining the issues referred by the CIT(A).

5. Conduct of the Departmental Representative (DR):
The Tribunal expressed its displeasure with the conduct of Mr. B.V. Gopinath, CIT, who recused himself from arguing the case for the Revenue, causing disruptions in the court proceedings. The Tribunal directed the Registry to forward copies of the order to the Revenue Secretary and Chairman, CBDT, to address the issues arising from the temporary posting of DRs.

Conclusion:
The Tribunal allowed the assessee's appeals and dismissed the Revenue's appeals. The Tribunal held that the reopening of the assessments was invalid due to the lack of a live link between the reasons for reopening and the additions made. The Tribunal also found that the disallowances made by the AO were routine in nature and could have been addressed during a regular assessment. The relief granted by the CIT(A) on certain disallowances was upheld, and the Tribunal expressed its displeasure with the conduct of the DR.

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