2021 (4) TMI 108 - AT - Income Tax

Addition of advance received u/s. 2(22)(e) - Agreement of purchase of the property from the assessee by GLFPL cancelled - HELD THAT - We find that the decision cannot be made merely on the basis of non-notarization or registration of the document. The revenue need to prove that the documents have been fabricated or made believe to bring the amount to tax u/s. 2(22)(e). The burden of proof laid on the department has not been discharged. The commercial transaction between the related company do not necessarily attract the provisions of Section 2(22)(e) unless convincingly proved that the transactions were not commercial in nature by bringing appropriate material on record and with proper investigation. In the present case, there is no prima facie reason to dispute that GLFPL intended to purchase the space from the assessee and the assessee failed to release the mortgage which consequently led to cancellation of the transaction and returning of the amounts. Hence, we decline to interfere with the order of the ld. CIT(A). Appeal of the revenue is dismissed.

Summary

Issues:
1. Disallowance of expenditure under section 14A
2. Treatment of purchase of computers as revenue or capital expenditure
3. Disallowance of advances written off
4. Treatment of deemed dividend under section 2(22)(e)

Issue 1: Disallowance of expenditure under section 14A
The revenue appealed against the deletion of an addition made by the AO under section 14A. The revenue argued that the LD. CIT(A) erred in deleting the addition without considering departmental stand in similar cases. However, the tribunal found that the commercial nature of the transactions between related companies did not attract the provisions of section 2(22)(e). The burden of proof was on the revenue to show that the documents were fabricated, which they failed to do. As the transactions were deemed commercial and the revenue did not provide sufficient evidence, the tribunal upheld the decision of the LD. CIT(A) in deleting the addition.

Issue 2: Treatment of purchase of computers as revenue or capital expenditure
The revenue contested the decision of the LD. CIT(A) in treating the purchase of computers as revenue expenditure and deleting the addition made by the AO. The tribunal noted that the AO considered the purchase as capital expenditure, but the LD. CIT(A) held it as revenue in nature. The tribunal emphasized that the purchase of new computers is generally not allowable as revenue expenditure. However, since the LD. CIT(A) had already made a decision based on the nature of the expenditure, the tribunal did not interfere with this aspect of the order.

Issue 3: Disallowance of advances written off
The revenue challenged the deletion of an addition made by the AO on account of disallowance of advances written off. The tribunal observed that the assessee failed to submit documentary evidence in support of its claim during the assessment and appellate proceedings. However, the tribunal did not find sufficient grounds to dispute the LD. CIT(A)'s decision in deleting the addition. Therefore, the tribunal declined to interfere with the order regarding this issue.

Issue 4: Treatment of deemed dividend under section 2(22)(e)
The revenue appealed against the deletion of an addition made by the AO on account of deemed dividend under section 2(22)(e). The tribunal analyzed the transaction between the related companies and found that the revenue did not convincingly prove that the transactions were not commercial in nature. As the revenue failed to discharge the burden of proof and show that the transactions were not purely commercial, the tribunal upheld the decision of the LD. CIT(A) in deleting the addition.

In conclusion, the tribunal dismissed the revenue's appeal on all grounds, emphasizing the need for the revenue to provide sufficient evidence to support their claims and prove that the transactions were not commercial in nature.