2019 (12) TMI 207 - AT - Income Tax

Claim of Excessive depreciation on building - inflated cost of capital asset - revenue submitted that, contractors who had constructed the building for the assessee company inflated the cost of construction and thereby increased the value of capital assets which had resulted in excessive claim of depreciation. - Held that - it is beyond doubt that the relevant capital asset in the form of the building of the assessee corresponding to the expenditure not incurred actually by those two contractors mentioned above, did not come into existence and thus the assessee cannot be entitled for depreciation in respect of the capital asset which has never come into existence. The bills raised by the contractors on the assessee are inflated one and not of actual amount of the work done for the assessee. Consequently, the cost debited by the assessee in respect of the building, which has been capitalized is inflated and not the actual cost. In facts and circumstances of the cases relied upon by the assessee being distinguishable, the ratio of those decisions cannot be applied in the case of the assessee. In the facts of the case the preponderance of the probability suggests that raising of bogus bills by the subcontractors to the contactors and then routing back of the money in the form of the cash definitely must have been done on the direction of the assessee as assessee is the ultimate beneficiary by way of excess deduction of depreciation on the capital asset in the form of building. Assessee is not entitled for the depreciation on the inflated portion of the cost of capital asset shown by the assessee as incurred through two contractors, namely, OSN and JDMS.

Issues Involved:
1. Legality of the CIT(A)'s order.
2. Deletion of the addition made on account of disallowance of excessive depreciation.
3. Allegation of inflated cost of construction by contractors leading to excessive depreciation claims.

Issue-wise Detailed Analysis:

1. Legality of the CIT(A)'s Order:
The Revenue challenged the legality of the CIT(A)'s orders dated 07/10/2015, 03/11/2015, and 10/11/2016 for the assessment years 2012-13, 2013-14, and 2014-15, respectively. The CIT(A) had deleted the disallowance of excessive depreciation claimed by the assessee, which was contested by the Revenue on the grounds that the contractors inflated the cost of construction, resulting in an inflated value of capital assets and excessive depreciation claims.

2. Deletion of the Addition Made on Account of Disallowance of Excessive Depreciation:
The Assessing Officer (AO) had disallowed depreciation of ?2,10,53,292/- for the assessment year 2012-13, alleging that the contractors (M/s Jubilant Developers and Management Services Pvt. Ltd and M/s OSN Infrastructure and Project Ltd.) admitted to claiming bogus expenditure without incurring actual expenses. The CIT(A) deleted the disallowance, stating that there was no evidence to establish that the assessee authorized its personnel to manage or supervise the affairs of the subcontractors and that the cost of assets accounted for by the assessee was not more than the expenditure incurred. The CIT(A) also noted discrepancies in the AO's computation methods and held that no disallowance on account of excess depreciation was warranted.

3. Allegation of Inflated Cost of Construction by Contractors Leading to Excessive Depreciation Claims:
The AO's findings were based on seized documents indicating that the assessee colluded with contractors to inflate the carrying cost of its capital assets through booking inflated bills. The AO noted that employees of the assessee acted as authorized signatories for the contractors, suggesting collusion. The AO's detailed findings in the cases of OSN Infrastructure & Projects Pvt. Ltd. and Jubilant Developers and Management Services Pvt. Ltd. highlighted that these contractors admitted to inflating expenses and receiving cash back from subcontractors, which was not reflected in the actual cost of construction. The AO concluded that the assessee's capitalized cost of building was inflated, leading to excessive depreciation claims.

Tribunal's Decision:
The Tribunal examined the facts and found that the assessee failed to discharge its onus to rebut the AO's findings. The Tribunal agreed with the AO that the capital asset corresponding to the expenditure not actually incurred did not come into existence, and thus, the assessee was not entitled to depreciation on the inflated portion of the cost of the capital asset. The Tribunal, however, noted discrepancies in the computation of the quantum of depreciation and restored the issue to the AO for correct computation, directing that the assessee be given an adequate opportunity of being heard.

Conclusion:
The Tribunal allowed the Revenue's appeals partly for statistical purposes, directing the AO to recompute the disallowance of depreciation based on correct figures for the assessment years 2012-13, 2013-14, and 2014-15. The Tribunal emphasized that the assessee should be given an adequate opportunity to present its case during the recomputation process.

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