2022 (8) TMI 566 - AT - Income Tax

Applicability of provisions of section 40A(3) - cash payments made for any expenses in excess of prescribed limit - HELD THAT - As in each and every case provisions of section 40A(3) cannot be applied, because, real nature of transactions need to be ascertained. In case, the assessee acts as commission agent and earns commission on total sales, then even if, for practical purposes, transactions are treated as purchase sales, then for the purpose of provisions of section 40A(3) real nature of transaction needs to be ascertained. In this case, the assessee claims that though he has reported purchases as his own purchases, but said purchases is made on behalf of principal, and his income is only commission on net sales. In this regard, the assessee has placed agreement between the M/s. B M Hot Breads Pvt.Ltd. and the assessee. These fact needs to be verified by the AO to decide applicability of provisions of section 40A(3) of the Act. Hence, we set aside the issue to the file of the AO and direct the AO to reconsider the issue in light of averments of the assessee and also agreement between the parties and decide applicability of provisions of section 40A(3) - Appeal filed by the assessee is treated as allowed for statistical purposes.

Summary

Issues involved:
- Disallowance under section 40A(3) of the Income Tax Act
- Shifting of head of income for rent received

Analysis:

Issue 1: Disallowance under section 40A(3) of the Income Tax Act
The appellant challenged the order of the Commissioner of Income Tax (Appeals) confirming the disallowance of Rs.2,58,98,591 under section 40A(3) of the Act. The appellant argued that the provisions of section 40A(3) did not apply to the facts of the case as the franchise agreement was misinterpreted. The appellant contended that the distinction between principal to principal and principal to agent was not considered, leading to erroneous findings. Moreover, the appellant asserted that commercial transactions were outside the scope of section 40A(3), especially considering the proviso below section 40A(3A). The appellant also claimed that exceptional circumstances were not properly examined, rendering the findings unsustainable. The Appellate Tribunal acknowledged that while cash payments exceeded the prescribed limit under section 40A(3), the real nature of the transactions needed to be ascertained. The Tribunal directed the Assessing Officer to reconsider the issue in light of the appellant's contentions and the agreement between the parties to determine the applicability of section 40A(3).

Issue 2: Shifting of head of income for rent received
The appellant contested the shifting of the head of income for rent received from another company, leading to the computation of income under the head 'other sources' with restricted expenses. The appellant argued that the shifting was unjustified and that the provisions of section 57(iii) were wrongly understood. The Appellate Tribunal did not provide a detailed analysis of this issue in the judgment, but the appeal was treated as allowed for statistical purposes, indicating a favorable outcome for the appellant regarding this issue.

In conclusion, the Appellate Tribunal set aside the disallowance under section 40A(3) of the Income Tax Act and directed the Assessing Officer to reexamine the issue. The shifting of the head of income for rent received was also addressed, with the appeal being treated as allowed for statistical purposes.