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2020 (5) TMI 303 - AT - Income TaxAddition u/s 40A(2)(b) - payment to the persons specified - computing the profit of the Joint Venture @4% of the gross receipts - HELD THAT - As decided in M/S KEC SIDHARTH JV, M/S KEC PLR KPIPL JV 2018 (4) TMI 1747 - ITAT DELHI AO made the addition by invoking the provisions of Section 40A(2)(b) of the Act which are applicable to the expenses considered to be excessive or unreasonable having regard to the fair market value of the goods/services or facilities for which the payment is made. However, in the instant case, the AO estimated the profit of the assessee and determined the income, nowhere he doubted the expenses incurred by the assessee. Therefore, AO was not justified in making the addition by invoking the provisions of Section 40A(2)(b) of the Act which are applicable to the expenditure and not to the receipts and the ld. CIT(A) rightly deleted the same. - Decided in favour of assessee
Issues Involved:
1. Classification of the assessee as a Joint Venture (JV) versus an Association of Persons (AOP). 2. Applicability of Section 40A(2) concerning payments made by the JV to its partners. 3. Validity of the JV agreement and its implications on the classification as AOP. 4. General grounds for raising additional documents or grounds of appeal. Detailed Analysis: 1. Classification of the Assessee as a JV versus an AOP: The primary issue revolves around whether the assessee should be classified as a JV or an AOP. The assessee contended that the status of the JV should not be considered an AOP, emphasizing that the partners of the JV are independent and responsible for their own work, and merely participating in a tender jointly does not constitute an AOP. The Delhi High Court's decision in the case of Linde AG Linde Engineering Division and the CBDT circular No. 7/2016 were cited to support this argument. The Tribunal found merit in this argument, noting that the JV partners were independent entities and the JV was formed solely for tender purposes without constituting an AOP. 2. Applicability of Section 40A(2): The second issue concerns the applicability of Section 40A(2) of the Income Tax Act, which deals with disallowance of excessive or unreasonable payments to related parties. The assessee argued that payments made by the JV to its partners do not fall under this section as they are not expenditures but diverted income. The Tribunal referenced previous decisions, including those of the Delhi High Court in Oriental Structure Engineering Private Limited and the Jammu and Kashmir High Court in Soma TRG Joint Venture, which concluded that Section 40A(2) does not apply in such situations. The Tribunal upheld this view, confirming that the payments made by the JV to its partners were not subject to disallowance under Section 40A(2). 3. Validity of the JV Agreement and Implications on AOP Classification: The JV agreement and its terms, including the ratio of work allocation, were scrutinized to determine if they implied an AOP. The assessee argued that the JV was a pass-through entity and that post-award work allocation to KEC International did not conclude the JV as an AOP. The Tribunal agreed, noting that the JV agreement was primarily for fulfilling bid requirements, and the actual execution by one partner did not meet the criteria for an AOP as elaborated in the CBDT circular. 4. General Grounds for Raising Additional Documents or Grounds of Appeal: The assessee sought the Tribunal's leave to submit additional documents and raise new grounds of appeal if necessary. This is a standard procedural request, and the Tribunal granted this leave, allowing the assessee to present further evidence or arguments during the hearing. Conclusion: The Tribunal, after considering the arguments and precedents, found in favor of the assessee on all counts. It concluded that the JV was not an AOP, and the payments made by the JV to its partners were not subject to disallowance under Section 40A(2). The Tribunal set aside the order of the CIT(A) and directed the Assessing Officer to delete the addition, thereby allowing the appeals filed by the assessee. Pronouncement: The decision was pronounced on 05.05.2020, with all four appeals filed by the assessee being allowed.
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