2021 (10) TMI 344 - AT - Income Tax

Addition u/s 40A(3) - commission paid by the assessee @ 5% of contract work awarded by NOIDA - AO held that the application of 8% on the turnover appears to be excessive AND payments exceeding ₹ 20,000/- were made to a single party and the assessee has willfully bifurcated the payments to keep it within the threshold limit - HELD THAT - AO has not brought anything on record to disallow 5% of the expenses. He has not determined even the head under which the expenses have been inflated or bogus. Even, in the case of payments made in cash, absolutely no enquiries have been conducted. Assessing Officer held that the assessee could not substantiate the discrepancies but did not mention anything as to what are all the discrepancies found. The mere allegations cannot be treated as evidences. The fundamental principle of justice requires the Assessing Officer to discover and collect evidence and confront the assessee before making any disallowance. In the instant case, there was no mention at all as to which of the expenses is bogus or inflated. In the instant case, we find no primary evidences or secondary evidences or even any probabilities brought out by the revenue to resort to disallowance of 5% expenses over and above 6.77% net profit disclosed by the assessee. Any disallowance made by the revenue without bringing any evidence on record is liable to be set aside. Appeal of the assessee is allowed.

Summary

Issues:
1. Validity of action u/s 148
2. Legality of proceedings initiated u/s 147/148
3. Jurisdiction under section 148 vs. section 153C
4. Compliance with legal procedures in passing orders
5. Addition of income without proper evidence
6. Disallowance of expenses and alleged commission

Issue 1: Validity of action u/s 148
The appeal challenged the initiation of action u/s 148 as being based on bald allegations without reflecting independent application of mind by the assessing officer. The reasons recorded for initiating proceedings lacked a live nexus between findings of search and seizure operations, indicating borrowed satisfaction from the Investigation Wing. The absence of evidence linking the assessee with relevant individuals further raised concerns about the validity of the action u/s 148.

Issue 2: Legality of proceedings initiated u/s 147/148
The grounds raised in the appeal highlighted various irregularities in the proceedings initiated u/s 147/148, including the lack of basis for determining the alleged income escapement. The appellant argued that the reasons recorded did not have any supporting material or live nexus, rendering the proceedings invalid and illegal. Additionally, the failure to confront the material with the assessee during assessment proceedings raised questions about the legality of subsequent orders.

Issue 3: Jurisdiction under section 148 vs. section 153C
The appellant contested the jurisdiction assumed u/s 148, arguing that section 153C should have been invoked instead. The failure to issue a valid notice u/s 145(2) and the absence of proper notices under relevant sections cast doubt on the jurisdiction exercised by the assessing officer, leading to challenges against the validity of the orders passed.

Issue 4: Compliance with legal procedures in passing orders
The appeal raised concerns about the procedural compliance in passing orders, citing the failure to supply reasons recorded as per legal precedents and the absence of mandatory approvals within specified timelines. The non-compliance with legal procedures, including the lack of confrontation with material and cross-examination opportunities, led to challenges against the validity of the orders passed by the assessing officer and CIT(A).

Issue 5: Addition of income without proper evidence
The assessment order disallowed an amount as commission without substantial evidence or proper verification of expenses. The appellate authority confirmed the addition based on assumptions and discrepancies without concrete evidence, leading to challenges regarding the correctness of the disallowance and subsequent addition to the assessee's income.

Issue 6: Disallowance of expenses and alleged commission
The disallowance of expenses and alleged commission payments were contested based on the lack of primary or secondary evidence supporting the disallowance. The assessing officer failed to provide specific details of inflated or bogus expenses, conduct necessary inquiries, or present any evidence to justify the disallowance. The absence of evidence and procedural lapses rendered the disallowance of expenses unjustified and liable to be set aside.

In conclusion, the appellate tribunal allowed the appeal, emphasizing the lack of evidence, procedural irregularities, and unjustified disallowances in the assessment proceedings, leading to the setting aside of the additions made to the assessee's income.