2015 (2) TMI 12 - AT - Income Tax

Disallowance u/s. 40A(3) - Held that - Respectfully following the precedent of M/s Westland Developers Pvt. Ltd., vs. ACIT 2014 (12) TMI 254 - ITAT DELHI wherein the Tribunal held that Accordingly, on a consideration of the peculiar facts and circumstances of the case and the judgments relied upon considering the relevant provision of the Act namely Section 40A(3), we hold for the detailed reasons given hereinabove that Section 40A(3) of the Act has been wrongly invoked as admittedly no expenses relatable to the addition has been claimed and the assessee has successfully demonstrated that the payment were reimbursement made by CWPPL. - Decided in favour of assessee. Interest on PDCs paid out of books of account - CIT(A) deleted the addition - Held that - Respectfully following the precedent of M/s IAG Promoter & Developers (P) Ltd. vs. ACIT 2014 (12) TMI 216 - ITAT DELHI wherein the Tribunal held CIT(A) was rightly of the view that there is no evidence which proves that interest is paid from the date of sale to date of encashment of postdated cheques - where ever the date of PDCs are extended interest is paid @ 15% per annum in cash out of books of accounts which are evident from seized material - therefore, interest on PDCs to the extent of extension period appears to quite reasonable and logical - The ground raised by the Revenue is misconceived because CIT(A) has not deleted the addition but has only directed to recalculate the interest - Decided against revenue. Deemed dividend - CIT(A) deleted the addition - Held that - Find considerable cogency in the contention of the Ld. Counsel of the assessee that the issue in dispute in the present case has been squarely covered in favor of the assessee by the decision of the Hon ble Delhi High Court in CIT vs. Ankitech P Ltd. 2011 (5) TMI 325 - DELHI HIGH COURT stating that the legal fiction of section 2(22)(e) does not extend to shareholder . The fiction is not to be extended further for broadening the concept of shareholders. - Decided in favour of assessee.

Issues Involved:

1. Deletion of addition on account of interest on PDCs paid out of books of account.
2. Deletion of addition on account of additional payment in violation of Stamp Duty Act.
3. Deletion of addition on account of deemed dividend.
4. Disallowance under Section 40A(3) of the Income Tax Act.
5. Validity of assessment order made under Section 143(3)/147 instead of Section 153C of the Income Tax Act.

Issue-wise Detailed Analysis:

1. Deletion of Addition on Account of Interest on PDCs Paid Out of Books of Account:

The Revenue contended that the CIT(A) erred in deleting the addition of Rs. 26,69,785/- made by the AO on account of interest on Post-Dated Cheques (PDCs) paid out of books of account. The CIT(A) had directed the AO to recompute the interest on PDCs after six months from the date of issue, considering six months as a reasonable period for giving PDCs as per the sale deed. The Tribunal upheld the CIT(A)'s decision, noting that the direction was based on material found and seized during the search. The Tribunal referenced a similar case involving a sister concern, M/s IAG Promoters and Developers Pvt. Ltd., where the CIT(A)'s direction to recalculate interest on PDCs was upheld. Consequently, this ground of the Revenue's appeal was dismissed.

2. Deletion of Addition on Account of Additional Payment in Violation of Stamp Duty Act:

The AO had made a disallowance of Rs. 20,09,701/- under Section 37 on account of additional payments for the purchase of land. The Assessee contended that since the deduction for the purchase of land was not claimed, no disallowance could be made. The CIT(A) did not accept this contention but gave directions to quantify the disallowance. The Tribunal found that the issue was covered by its earlier decision in the case of Westland Developers Pvt. Ltd., where it was held that since the expenditure was not claimed as an expense, the occasion to make a disallowance did not arise. Respectfully following this precedent, the Tribunal allowed the ground in favor of the Assessee, rendering the related grounds 4.1, 4.2, and 4.3 inconsequential.

3. Deletion of Addition on Account of Deemed Dividend:

The AO had made an addition of Rs. 1,00,000/- under Section 2(22)(e) of the Income Tax Act on account of deemed dividend. The Assessee argued that this issue was covered by the decision of the Hon'ble Delhi High Court in the case of CIT vs. M/s Ankitech Pvt. Ltd., which held that the legal fiction created by Section 2(22)(e) does not extend to shareholders and cannot be broadened to include non-shareholders. The Tribunal, agreeing with the Assessee, dismissed this ground of the Revenue's appeal, following the precedent set by the Hon'ble Delhi High Court.

4. Disallowance Under Section 40A(3) of the Income Tax Act:

The AO had made a disallowance of Rs. 1,00,000/- under Section 40A(3), which was confirmed by the CIT(A). The Assessee contended that a similar disallowance in the case of a group company, Westland Developers Pvt. Ltd., was deleted by the Tribunal, as no expenses were claimed, and the payments were reimbursements. The Tribunal found that the issue was covered by its earlier decision in the case of Westland Developers Pvt. Ltd., where it was held that Section 40A(3) was wrongly invoked as no expenses were claimed. Respectfully following this precedent, the Tribunal allowed this ground in favor of the Assessee.

5. Validity of Assessment Order Made Under Section 143(3)/147 Instead of Section 153C of the Income Tax Act:

The Assessee had raised grounds challenging the validity of the assessment order made under Section 143(3)/147, contending that it should have been made under Section 153C. However, during the hearing, the Assessee's counsel stated that these grounds were not being pressed. Consequently, these grounds were dismissed as not pressed.

Conclusion:

The Tribunal partly allowed the Assessee's appeal and dismissed the Revenue's appeal, following precedents and considering the specific facts and circumstances of the case. The judgments delivered addressed the issues of disallowances and additions comprehensively, ensuring adherence to legal precedents and principles.

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