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2022 (7) TMI 382 - AT - Income TaxAddition of rental income received from M/s. Virtual BPO services - HELD THAT - We note that assessee's property was taken over by SBI-bank, as the assessee failed to pay the dues to SBI and such rent had been collected by SBI directly from the tenant and adjusted against the over dues of the assessee. Therefore, said rent income is the income of the assessee and adjustment of such receipt against over dues by SBI is in the nature of application of such receipts. Hence, it should be treated as rental income of the assessee. As requested by Ld. Counsel that TDS deducted from such receipts was not claimed by assessee, and if the said rental income is treated as income of the assessee, then in that circumstances, the assessee is entitled to claim the benefit of the TDS. We note that ld. CIT(A) has already given direction to the assessing officer that benefit of TDS should be granted to the assessee. We are of the view that assessee should be given credit of such TDS after verification of Form No. 26AS and TDS Certificate from party, if issued to SBI. Therefore, we direct the Assessing Officer to grant such credit of TDS, after proper verification. Addition being interest on fixed deposit as per AIR Information - Assessing Officer on the basis of AIR/ITS information, observed that assessee was in receipt of interest being credited by various banks - HELD THAT - We note that in view of financial circumstances and suits pending before Hon'ble DRT for recovery of Rs. 500 crore by consortium of various banks, such interest could have credited by some bank having such FDR and appropriated such interest against dues of assessee hence there is no information with assessee. But, such credit of interest on mercantile system of accounting is receipt of assessee and its appropriation by bank is in the form of application of such receipt. It is therefore, we are of the view that such interest of Rs. 20,66,182/- being credited by various bank under the PAN of assessee for previous year is income of assessee. Therefore, the addition so made is upheld and confirmed. We note that assessee made a prayer before ld. CIT(A) that assessee has not claimed TDS deducted from such interest and Assessing Officer also not allowed the same, therefore TDS benefit should be allowed to him. Therefore, ld. CIT(A) directed the assessing officer to verify from records about any of TDS so deducted from such interest on the basis of Form 26AS and TDS certificate so issued by respective bank and grant the credit to assessee. We also direct the assessing officer to include the interest income in the hands of assessee and benefit of TDS should be given to the assessee. Therefore, ground no. 3 and 4 are allowed to the extent indicated above. Disallowance of depreciation for windmill sold during the year ignoring the fact that the block of windmill still remain/exist - AO was of the view that there cannot be two different block with same rate of depreciation - HELD THAT - As we note that block is existing and for that Ld. Counsel took us through the paper book at page no. 23 wherein we noted that block of the windmill is in existence and the assessee is claiming depreciation on remaining block, therefore the depreciation on remaining block should be allowed to the assessee. Therefore, we direct the Assessing Officer to allow depreciation - Thus, ground no. 5 raised by the assessee is allowed. Disallowance of preliminary expenses treating it to be capital in nature - HELD THAT - We have gone through the paper book of the assessee and observed that amount of Rs. 6,10,000/- pertains to preliminary expenses, and assessee has been claiming such deferred revenue expenses since long. Therefore, we note that assessee is entitled to claim these expenses, hence we direct the assessing officer to allow preliminary expenses, of Rs. 6,10,000/-. Thus, ground no. 6 raised by the assessee is allowed. Short term capital gain and Long term capital gain - information through AIR/ITS, considered the transaction of sale of windmills and land related to such windmill - as submitted sale of these land for which separate consideration is received will result into long term capital (LTCG) - HELD THAT - We note that A.O, has not worked out the short term capital gain as well as long term capital gain on account of such sale transactions. The ld. CIT(A) noted that out of total sale consideration of all the windmills at Rs. 28,90,67,060/-, it should be first reduced to Rs. 28,52,55,287/- because of opening WDV of balance windmills. It is therefore this surplus of Rs. 28,52,55,287/- has to be treated as short term capital gain as per provisions of section 50 of the I.T. Act. In the case of sale of land which were acquired in F.Y. 04-05 (land at Irrukundarai) and in F.Y. 05-06 (land at Andhiyur), these land were long term capital asset being acquired and kept for more than 36 months. The ld. CIT(A) noted that these lands were not depreciable assets. Therefore, the sale of these land for which separate consideration is received will result into long term capital (LTCG). As per provisions of section 70(3) of the Act, the net resultant long term capital gain on account of sale of these two land will be Rs. 53,15,401/- (5942874 -627473).It is therefore, in the place of addition of Rs. 29,46,45,500/- profit as worked out by A.O. it is to be with short term capital gain of Rs. 28,52,55,287/- and long term capital gain of Rs. 53,15,401/-. The total addition in the form of such gain of Rs. 29,05,70,688/- (28,52,55,287 53,15,401) were upheld and confirmed by ld. CIT(A). Therefore, ld. CIT(A) directed the A.O. to delete the balance addition of Rs. 40,74,812/- (29,46,45,500 - 29,05,70,688). From the above narrated facts, it is abundantly clear that ld. CIT(A) has passed speaking order on the issue under consideration, which does not contain infirmity, therefore we decline to interfere in the order passed by ld. CIT(A).
Issues Involved:
1. Condonation of delay in filing the appeal. 2. Disallowance under Section 14A read with Rule 8D. 3. Addition of rental income received from Virtual BPO Services. 4. Addition of interest on Fixed Deposits (FDRs) as per AIR information. 5. Disallowance of depreciation for windmill sold during the year. 6. Disallowance of preliminary expenses treating them as capital in nature. 7. Addition of short-term and long-term capital gains. 8. Levy of interest under Sections 234A, 234B, and 234C. 9. Initiation of penalty under Section 271(1)(c). Detailed Analysis: 1. Condonation of Delay: The assessee appealed for condonation of a 1384-day delay due to unavoidable circumstances, including financial setbacks, legal proceedings, and staff shortages. The Tribunal noted that the power to condone the delay is discretionary and should be exercised judicially. Given the genuine reasons provided, the delay was condoned, and the appeal was admitted for hearing. 2. Disallowance under Section 14A read with Rule 8D: The assessee did not press this ground. Consequently, it was dismissed as not pressed. 3. Addition of Rental Income: The Assessing Officer (AO) added Rs. 2,80,000/- as rental income from Virtual BPO Services, which the assessee claimed was directly received by SBI under the Securitization Act. The Tribunal held that the rental income is the income of the assessee and should be treated as such. However, the Tribunal directed the AO to grant the credit of TDS after verifying Form 26AS and TDS certificates. 4. Addition of Interest on FDRs: The AO added Rs. 20,66,182/- based on AIR information. The assessee argued that this interest was credited by banks without their knowledge due to the NPA status. The Tribunal upheld the addition, stating that the interest credited is the income of the assessee. The Tribunal also directed the AO to verify and allow the TDS credit. 5. Disallowance of Depreciation for Windmill: The AO disallowed Rs. 30,49,418/- of depreciation on the grounds that the windmills were sold. The Tribunal found that the block of windmills still existed and directed the AO to allow the depreciation of Rs. 30,49,418/-. 6. Disallowance of Preliminary Expenses: The AO disallowed Rs. 6,10,000/- treating it as capital in nature. The Tribunal, after reviewing the records, allowed the preliminary expenses, noting that these were deferred revenue expenses claimed by the assessee for a long time. 7. Addition of Capital Gains: The AO added Rs. 29,46,45,500/- as profit from the sale of windmills and related land. The Tribunal noted that the CIT(A) correctly computed the short-term capital gain of Rs. 28,52,55,287/- and long-term capital gain of Rs. 53,15,401/-. The total addition of Rs. 29,05,70,688/- was upheld, and the balance addition of Rs. 40,74,812/- was deleted. The Tribunal found no infirmity in the CIT(A)'s order and upheld it. 8. Levy of Interest under Sections 234A, 234B, and 234C: The Tribunal did not specifically address this issue in the detailed judgment, implying that it was not contested separately or was subsumed under other grounds. 9. Initiation of Penalty under Section 271(1)(c): The Tribunal did not specifically address this issue in the detailed judgment, implying that it was not contested separately or was subsumed under other grounds. Conclusion: The appeal was partly allowed for statistical purposes, with specific directions for allowing TDS credits and depreciation, while other additions and disallowances were upheld or dismissed as indicated. The Tribunal's order was pronounced in the open court on 29th June 2022.
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