2021 (11) TMI 350 - AT - Income Tax

Income declared in the survey Proceedings - Unaccounted income over and above the regular income registered in the books of account - survey proceedings - assessee has not offered the unaccounted income, admitted during the course of survey action while filing return of income - assessee claimed expenses on the income offered during the survey and as shown loss income comparative to admitted income - HELD THAT - CIT(A) noted that assessee claimed that there no expenses is claimed against the undisclosed income. And that expenses incurred and claimed in the audited statement were actually incurred against the turnover and would have been incurred even without income admitted in survey. CIT(A) recorded that it was the contention of the assessee that expenses can only be disallowed after giving categorical finding on the basis of evidence that expenses are not allowable. CIT(A) recorded that Assessing Officer has not given any finding on allowability or otherwise of expenses and that there is no finding of Assessing Officer that expenses are bogus and non-genuine. CIT(A) examined the comparative chart of expenses for three earlier years as well as and post survey period and on perusal of such details held that it is not a case that inflation of expenses or excessive booking of expenses in post survey period or no case of booking of extra ordinary expenses comparative to earlier years. CIT(A) held that ad-hock proportionate disallowance is not permissible and directed the assessing officer to delete the disallowance made by assessing officer. There is no dispute that assessee was engaged for development of project of Victoria Palms, Dumas Road, Surat. The assessee was not having any other source of income. There is no dispute that the assessee is not entitled for set off of losses of earlier year, which have been allowed to the assessee. As in case Shilpa Dyeing Printing Mills (P) Ltd 2015 (7) TMI 691 - GUJARAT HIGH COURT also held that income declared in the survey falls under one of the head of income and current year losses be set off against such undisclosed income - Grounds of appeal raised by the revenue are dismissed.

Summary

Issues Involved:
1. Deletion of addition made by the AO on account of proportionate disallowance of expenses claimed on the income admitted during the course of survey.
2. Failure to appreciate the explanation given by the assessee regarding the expenses claimed against unaccounted income.
3. Failure to recognize that the unaccounted income admitted during the survey was over and above the regular income and was not fully offered for tax.
4. Whether the CIT(A) should have upheld the AO's order.

Issue-wise Detailed Analysis:

1. Deletion of Addition on Account of Proportionate Disallowance of Expenses:
The Revenue contested the deletion of ?3,77,44,000/- made by the AO, arguing that the expenses claimed were against the unaccounted income admitted during the survey. The AO based the disallowance on a formula involving the proportionate expenses to the additional income disclosed during the survey. The CIT(A) found that the AO did not provide evidence that the expenses were not allowable or that they were bogus. The CIT(A) held that the expenses claimed in the audited statement were legitimate business expenses incurred against the turnover, irrespective of the additional income admitted during the survey.

2. Explanation by the Assessee Regarding Claimed Expenses:
The assessee argued that the AO's allegation of claiming expenses against disclosed income was incorrect and not supported by facts. The Director of the assessee-company admitted ?5.00 crore as additional sale price received/receivable during the year, but there was no admission of this being over and above the regular income. The CIT(A) accepted the assessee’s contention that no separate expenses were claimed against the disclosed income, and all expenses were necessary and would have been incurred regardless of the additional income.

3. Unaccounted Income and Taxation:
The Revenue argued that the unaccounted income admitted during the survey was not fully offered for tax. However, the CIT(A) noted that the AO had accepted the additional income as business income and allowed the set-off of brought forward losses. The CIT(A) found no evidence from the AO that the expenses were inflated or non-genuine. The CIT(A) concluded that the proportionate disallowance of expenses was not justified.

4. Whether the CIT(A) Should Have Upheld the AO's Order:
The CIT(A) examined the comparative chart of expenses for three years and the post-survey period, finding no excessive booking of expenses. The CIT(A) held that the ad-hoc proportionate disallowance was not permissible. The Tribunal agreed with the CIT(A), noting that the AO did not discuss the set-off of earlier year losses or the actual profit shown by the assessee. The Tribunal affirmed the CIT(A)'s order, finding no reason to interfere.

Conclusion:
The Tribunal dismissed the Revenue's appeal, affirming the CIT(A)'s order that deleted the proportionate disallowance of expenses. The Tribunal found that the AO's disallowance was based on an incorrect understanding of the expenses and the additional income admitted during the survey. The Tribunal concluded that the expenses were legitimate business expenses and there was no evidence of them being inflated or non-genuine. The appeal was dismissed in favor of the assessee.