2013 (9) TMI 524 - AT - Income Tax

Disallowance u/s 40A(3) - payment in cash for purchase of land - Held that - Contention of the assessee was that, firstly, these payments were made by cheques by its sister concern M/s. Zoom Developers and secondly the assessee has not debited these expenditure in the profit and loss account, therefore, no disallowance u/s 40A(3) can be made. - no disallowance - Decided in favor of assessee Additions towards spped money / bribe - Through the letter, the Parker & Parker Associates had asked for payment of professional fee amounting to Rs.3 crore by 03.07.2006 through demand draft. The content of the letter has been interpreted by the AO as illegal payment made through them for bribing the .government officials in order to pursue their proposal for permission of purchase of lands. - Held that - It is clear from the detailed findings recorded by the ld.CIT(A) that out of the total payment only a sum of Rs. 7 lakhs has been paid as speed money relevant to assessment year 2006-07, Rs. 4 lakhs in assessment year 2007-08 and Rs. 50,000/- in the assessment year 2008-09, he upheld the addition to this extent by observing that merely because the assessee has not debited this expenditure in the profit and loss account, no disallowance should be made. However, such disallowance should be made only in the year in which assessee claimed such payment as expenditure in its profit and loss account and not in the years under consideration, wherein undisputedly no claim of any of such expenditure is made by the assessee as per the audited profit and loss account and balance sheet placed before the lower authorities, which also find placed in the paper book. We direct accordingly. Undisclosed investment in land - addition u/s 69 - Held that - , it is clear that the ld. CIT(A) ahs not deleted the addition by controverting the finding recorded by the Assessing Officer with respect to the applicability of provisions of Section 69 under which investment from undisclosed sources is added. The CIT(A) has simply deleted the addition by relying on the addition confirmed by him u/s 40A(3). We set-aside the order of CIT(A) on this ground and in the interest of justice, matter is restored back to the file of the Assessing Officer for deciding afresh after giving due opportunity to the assessee. Deemed dividend - Advance Received Against Sale of Property u/s 2(22)(e) Held that - Genuineness of the agreement so entered by the assessee with the respective company was found to be after thought - As per agreement, the assessee was to receive the balance amount at the time of handing over the possession of the constructed area, however, till date neither possession has been handed over nor balance payment was received by the assessee. In the respective balance sheet of the company amount had not been shown separately as advance against the land and properties and the same have been shown under the head Other Advances - Thus, even if the agreements were found to be genuine, the same have not been acted upon - The detailed findings recorded by the ld.CIT(A) to the effect that even in the audited balance sheet, the assessee had not shown the payments as advance against land and property, but was simply shown as other advances - The detailed finding recorded by the ld.CIT(A) had not been controverted by brining any positive material on record - Additions u/s 2(22)(e) confirmed - Decided against the assessee.

Summary

Issues Involved:
1. Disallowance under Section 40A(3) of the Income-tax Act, 1961.
2. Addition on account of payments made to M/s. Parker & Parker Associates.
3. Addition under Section 2(22)(e) for deemed dividend.
4. Addition under Section 69 for undisclosed investment in land.

Issue-wise Detailed Analysis:

1. Disallowance under Section 40A(3) of the Income-tax Act, 1961:
The assessee companies, M/s. Magnificent Construction Pvt. Ltd. and M/s. Zoom Reality Projects Pvt. Ltd., were involved in cross appeals against the orders of CIT(A) for the assessment years 2004-05 to 2009-10. The main contention was that no incriminating documents were found during the search, and therefore, no addition could be made on regular items shown in the original returns under Section 153A. The Assessing Officer (AO) disallowed 20% of the payment of Rs. 3.5 crores for the purchase of land, considering it as cash payment in violation of Section 40A(3). However, the CIT(A) deleted the disallowance, observing that the payments were made through pay orders/drafts and not in cash, as evidenced by the bank accounts of Zoom Developers Pvt. Ltd. The Tribunal upheld the CIT(A)'s decision, finding no reason to interfere as the payments were made through banking channels and not in cash.

2. Addition on account of payments made to M/s. Parker & Parker Associates:
The AO added amounts in various assessment years based on a letter from Parker & Parker Associates, interpreting the payments as illegal for bribing government officials. The CIT(A) partially confirmed the disallowance, restricting it to Rs. 7 lakhs in AY 2006-07, Rs. 4 lakhs in AY 2007-08, and Rs. 50,000 in AY 2008-09, based on the status report and expense statement indicating a portion of the payments as speed money. The Tribunal modified the CIT(A)'s order, directing that such disallowance should be made only in the year in which the assessee claims such payment as an expenditure in its profit and loss account, not in the years under consideration.

3. Addition under Section 2(22)(e) for deemed dividend:
The AO made additions for deemed dividend under Section 2(22)(e) for advances received from Choudhary Innovative Business Pvt. Ltd. by Shri Vijay Choudhary and Smt. Manjiri Choudhary. The CIT(A) confirmed the additions, noting that the advances were shown under "other advances" in the company's balance sheet rather than "advance against properties," and the agreements for property sale appeared to be an afterthought. The Tribunal upheld the CIT(A)'s findings, confirming the additions as the detailed findings were not controverted by any positive material.

4. Addition under Section 69 for undisclosed investment in land:
The AO added Rs. 1,37,98,459/- for undisclosed investment in land, observing that the assessee did not produce books of accounts or bank statements, and the seized hard disk could not be opened. The CIT(A) deleted the addition, relying on additional documents and confirming the disallowance under Section 40A(3). The Tribunal set aside the CIT(A)'s order and restored the matter to the AO for fresh consideration, noting that the CIT(A) had not deleted the addition by controverting the AO's findings on the applicability of Section 69.

Conclusion:
The Tribunal provided a detailed analysis of each issue, confirming some findings of the CIT(A) while modifying others. The key points were the proper verification of payments and the correct application of legal provisions, ensuring that disallowances and additions were justified based on the evidence and the law.