2021 (8) TMI 366 - AT - Income Tax

Addition on account of profit earned @ 50% of the gross receipts - unaccounted expenses - seized documents proceeded to allow deduction towards unaccounted expenses - HELD THAT - Considering the fact that these are unaccounted expenses and all these unaccounted expenses could not be fully substantiated by the assessee with proper supporting documents and also considering the fact that assessee s declared profit was 19.05% as per its regular books of accounts which is also categorically admitted by the ld.CIT(A) we hold that the assessee would have made profit of 20% approximately on these unaccounted transactions by having the benefit in the form of huge cash discounts, huge savings in levy of indirect taxes, better negotiation of prices of materials due to cash purchases and also the expenses specifically identified by Ld CIT(A), which the Ld AR has explained the nature of expenses in his submissions before us, may be few expenses which may be not substantiated by the assessee due to the fact that these expenses met out of unaccounted cash and they may not taken particular interest to record the proper reasons - we direct the Assessing Officer to add 20% gross receipts as the unaccounted income which has to be distributed to all the assessment years in accordance with the percentage of work completed by the assessee. Applicability of provisions of Section 40A(3) in respect of unaccounted business expenses incurred in cash - HELD THAT - Admittedly, the seized document contains unaccounted income as well as unaccounted expenditure both were duly transacted only in cash. Hence, the applicability of provisions of Section 40A(3) of the Act to the said payments would not serve the scheme of taxation and would ultimately result only ending up in taxing the entire unaccounted gross receipts alone without giving benefit of deduction to the assessee. This is certainly not the intention of the legislature and more so, the provisions of the Act. Accordingly, the grounds raised by the assessee in this regard for all the assessment years are partly allowed. Addition made on account of capital contribution in the assessee firm by the partner - HELD THAT - We find that the seized documents does not state the year of receipts of on-money by the assessee - benefit should be given to the assessee by holding that the on-money receipts that pertaining to the entire project were received by the assessee in the initial year itself and the said money is certainly available for making capital contribution in to the assessee firm, irrespective of the fact that only part of the such on-money receipts has been offered to tax in A.Y. 2011-12. What is to be seen is the availability of cash in the hands of the partner to make the capital contribution in the assessee firm which is explained by on-money receipts. Hence, we direct the Assessing Officer to delete the addition made being the deficit and unexplained capital contribution. Accordingly, the ground No.3 raised by the assessee is allowed.

Summary

Issues Involved:
1. Confirmation of addition on account of profit earned at 50% of gross receipts from seized books.
2. Deduction of unaccounted expenses recorded in seized documents.
3. Addition on account of capital contribution by the partner.

Issue-wise Detailed Analysis:

1. Confirmation of Addition on Account of Profit Earned at 50% of Gross Receipts from Seized Books:
The assessee, a partnership firm involved in the construction of residential complexes, was subjected to a search and seizure action under section 132 of the Income Tax Act on 26th February 2015. Various documents indicating the acceptance of 'on-money' on flat sales were seized. The partner of the firm admitted to these on-money receipts and agreed to offer the net profit from these unaccounted transactions for taxation. The assessee claimed that out of the total on-money receipts of ?9,75,50,000, an amount of ?6,01,09,970 was spent on construction expenses, leaving a net unaccounted income of ?3,74,40,030. The Assessing Officer, however, did not allow the deduction for these expenses and brought the entire gross on-money receipts to tax. The CIT(A) allowed a deduction of 50% of the gross receipts on an ad-hoc basis. The Tribunal directed the Assessing Officer to add 20% of the gross receipts as unaccounted income, considering the nature of unaccounted transactions and the benefits derived from cash transactions.

2. Deduction of Unaccounted Expenses Recorded in Seized Documents:
The assessee argued that the seized documents should be considered in toto, including both the unaccounted receipts and the expenses. The CIT(A) allowed a deduction of 50% of the gross receipts on an ad-hoc basis, considering the unaccounted expenses. The Tribunal upheld that the seized documents should be considered in their entirety and that the revenue cannot selectively consider parts of the documents. The Tribunal directed the Assessing Officer to add 20% of the gross receipts as unaccounted income, considering the nature of unaccounted transactions and the benefits derived from cash transactions. The Tribunal also noted that the provisions of Section 40A(3) of the Act, which disallow cash payments exceeding ?20,000, could not be applied to unaccounted transactions.

3. Addition on Account of Capital Contribution by the Partner:
The Assessing Officer made an addition of ?2,54,000 on account of unexplained capital contribution by the partner. The assessee explained that the capital contribution was made from the on-money receipts. The Tribunal held that the on-money receipts from the entire project were available for making capital contributions, irrespective of the year in which they were offered to tax. The Tribunal directed the Assessing Officer to delete the addition of ?2,54,000, as the source of capital contribution was explained by the on-money receipts.

Conclusion:
The Tribunal partly allowed the appeals, directing the Assessing Officer to add 20% of the gross receipts as unaccounted income and to delete the addition of ?2,54,000 on account of capital contribution. The Tribunal emphasized that the seized documents should be considered in their entirety and that the provisions of Section 40A(3) could not be applied to unaccounted transactions.