2019 (12) TMI 699 - HC - Income Tax

Bogus purchases - AO disallowed the web advertisement expenses and the depreciation claimed by the respondent assessee in respect of software purchase - proof of actual use of software - reliance on the statement of accommodation entry provider - HELD THAT - Addition was only made by the assessing officer on the statement of Shri SK Gupta, without affording any opportunity for cross examination. In the Present case, the assessing officer has made detailed enquiry. De hors the statement of Shri SK Gupta, assessee has failed to show that it has incurred expenditure for web advertisement and purchased the software. Further, we did not find the observation of the coordinate bench with respect to the non-availability of technology on which websites were developed, as well as the nonexistent websites of the advertisers and also the basic details called for by the AO with respect to software development lifecycle. In the present case, order of the assessing officer has clearly made further allegations and proved conclusively that the expenditure is bogus. This Court in Alpasso Industries (P) Ltd. v. Income Tax Officer 2018 (8) TMI 761 - DELHI HIGH COURT rejected a similar submission of the appellant/ assessee and, while doing so, this Court reiterated the legal position as to when a finding of fact could be classified as perverse.

Issues Involved:
1. Disallowance of web advertisement expenses.
2. Disallowance of depreciation claimed on software purchase.
3. Alleged perverse factual findings by the Tribunal.
4. Consideration of earlier orders and statements by the Tribunal.

Issue-wise Detailed Analysis:

1. Disallowance of Web Advertisement Expenses:
The Assessing Officer (AO) disallowed the web advertisement expenses claimed by the assessee for the assessment years 2004-05 and 2005-06, deeming them bogus. The AO's investigation revealed that the companies purportedly providing web advertisement services did not exist at the given addresses, and the technology claimed to be used (Java Server Pages) was not available at the time the services were allegedly rendered. The Tribunal upheld the AO's findings, noting that the assessee failed to provide substantial evidence to validate the claimed expenses, such as the existence of the service providers or the actual provision of services.

2. Disallowance of Depreciation Claimed on Software Purchase:
The AO also disallowed the depreciation claimed by the assessee on the purchase of customized software, citing the lack of evidence to prove the genuineness and actual use of the software. The assessee could not produce development documents, backup copies, or technical personnel involved in the software's development. The Tribunal agreed with the AO, emphasizing that the assessee failed to meet the burden of proof required to substantiate the claim. The Tribunal referenced the Delhi High Court's decision in the Chintel case, which similarly disallowed depreciation on software due to the lack of genuine transaction evidence.

3. Alleged Perverse Factual Findings by the Tribunal:
The appellant argued that the Tribunal's findings were perverse as they ignored material evidence, including the statement of Shri S.K. Gupta, who had allegedly provided accommodation entries but later stated that actual services were rendered. The Tribunal clarified that the AO did not rely solely on Shri S.K. Gupta's statement but conducted a thorough investigation, which revealed the non-existence of the service providers and the bogus nature of the transactions. The Tribunal's findings were based on a detailed analysis of evidence, and the Court found no merit in the appellant's claim of perversity.

4. Consideration of Earlier Orders and Statements by the Tribunal:
The appellant contended that the Tribunal failed to consider earlier orders by the CIT(A), ITAT, and the High Court, which had ruled in favor of the assessee for other assessment years. The Tribunal distinguished these cases, noting that the level of scrutiny and investigation by the AO in the present years was more thorough. The Tribunal also addressed the appellant's reliance on the cross-examination of Shri S.K. Gupta, stating that the AO's disallowance was not based solely on his statement but on the overall lack of evidence supporting the genuineness of the transactions. The Court upheld the Tribunal's findings, emphasizing that each assessment year is separate, and the thorough investigation in the present years justified the disallowance.

Conclusion:
The High Court dismissed the appeals, affirming the Tribunal's findings that the assessee failed to substantiate the genuineness of the web advertisement expenses and software purchase. The Court found no substantial question of law arising from the Tribunal's detailed and evidence-based analysis, rejecting the appellant's claims of perversity and failure to consider earlier orders.

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