2017 (6) TMI 233 - AT - Income Tax

Addition of short term capital gain - transfer of development rights - Held that - The amount of adjustment made by the AO as short term capital gains is merely on the basis of the ledger account provided by M/s. V.K. Developers. The Appellant has no corroborated the same with the facts of the case or the agreements governing this transaction. Being a development project, all the receipts and payments are duly recorded through agreements only. In the instant case, the land FSI cost is not covered by any agreement. Also the amount is outstanding for more than 3 years now. Accordingly, CIT-A correctly directed the AO to delete the additions in the absence of any substantive evidences - Decided in favour of assessee TDS u/s 194C - invoking the provisions of section 40a(ia) - non deduction of tds - Held that - We find that the assessee before CIT(A) for the first time taken plea that the assessee is not covered under the tax audit under section 44AB of the Act in earlier years and accordingly, it is not required to comply that the provision of section 194J of the Act. We find that this is a fact that the assessee is not liable to TDS but this needs verification at the level of the AO. Hence, we remit the issue back to the file of the AO for verification purpose only. Accordingly, this issue of Revenue s appeal is set aside and allowed for statistical purposes. Addition of indirect expense - Held that - We find that the AO has disallowed on the basis that the assessee could not produce the bills and vouchers or like other evidences. The assessee before us could not produce the evidences of expenses; hence, we feel that 10% of disallowance will meet the end of justice. Accordingly, we direct the AO to disallow 10% of the expense. This issue of Revenue s appeal is partly allowed.

Summary

Issues Involved:
1. Deletion of addition of short term capital gain on transfer of development rights.
2. Deletion of disallowance made on expenses without TDS deduction under section 194J.
3. Deletion of addition of indirect expenses on adhoc basis.

Issue 1: Deletion of Addition of Short Term Capital Gain:
The appeal by the Revenue challenges the deletion of short-term capital gain addition made by the Assessing Officer (AO) on account of transfer of development rights. The AO noted that the assessee entered into a joint agreement with the developer, granting rights to develop a property. The AO treated this as a transfer for the assessment year 2008-09 and calculated short-term capital gain. However, the Commissioner of Income Tax (Appeals) (CIT(A)) deleted this addition. The CIT(A) observed that the AO's addition was based on a ledger account provided by the developer without sufficient corroborative evidence. The CIT(A) directed the AO to delete the addition due to lack of substantive evidence. The Tribunal upheld the CIT(A)'s decision, finding no error in the deletion of the addition.

Issue 2: Deletion of Disallowance on Expenses without TDS Deduction:
The Revenue contested the deletion of disallowance made by the AO on expenses where no Tax Deducted at Source (TDS) was deducted under section 194J. The CIT(A) allowed additional evidence without giving the AO an opportunity, which the Revenue argued was against Rule 46A of the IT rules. The CIT(A) based the deletion of the disallowance on the fact that the assessee was not covered under tax audit in earlier years and thus not required to comply with TDS provisions. The Tribunal remitted the issue back to the AO for verification regarding the applicability of TDS. The issue was set aside and allowed for statistical purposes.

Issue 3: Deletion of Addition of Indirect Expenses:
The Revenue challenged the deletion of an addition related to indirect expenses made on an adhoc basis. The AO disallowed 20% of indirect expenses due to lack of documentary evidence, resulting in an addition of ?1,54,817. The CIT(A) deleted this addition, stating that the AO's disallowance was on an adhoc basis. The Tribunal found that the assessee failed to produce documentary evidence of expenses. Consequently, the Tribunal directed the AO to disallow 10% of the expenses, partially allowing the Revenue's appeal.

In conclusion, the Tribunal upheld the deletion of the short-term capital gain addition, remitted the issue of disallowance on expenses without TDS deduction for verification, and partially allowed the appeal regarding the deletion of the addition of indirect expenses on an adhoc basis.