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Income Tax Appellate Tribunal, ‘A’ BENCH, CHENNAI
Before: SHRI MAHAVIR SINGH, VICE- & SHRI G.MANJUNATHA
assessee are arising out of order passed by the Commissioner of Income Tax (Appeals)-3, Chennai dated 18.10.2016. The assessment was completed by the ACIT., Salary Circle-I, Coimbatore for relevant assessment year 2011-12 u/s. 143(3) r.w.s. 147 of the Income Tax Act, 1961 (hereinafter “the Act”) vide order dated 06.06.2014. The cross objection No.34/Chny/2017 is filed by the assessee against order of the Commissioner of Income Tax (Appeals)-3, Chennai in dated 18.10.2016. Since, issues involved in these cross appeals & cross objection are common, we heard together and dispose of the same by this common order.
At the outset, it is noticed that appeal filed by the Revenue as well as the assessee are barred by limitation of two days and 37 days respectively. In regard to filed by the Revenue, the order of the CIT(A) dated 18.10.2016 was received on 10.11.2016. The appeal was to be filed on 09.01.2017, however, the appeal was filed by the Department on 11.01.2017, due to intervening holidays.
Going by the reasons, we are of the view that cause is reasonable and hence, delay of 2 days is condoned and appeal is admitted.
In regard to filed by the assessee, order of the CIT(A) dated 18.10.2016 was received by the assessee on 10.11.2016 and appeal has to be filed on 09.01.2017. However, the assessee filed appeal only on 15.02.2017 with delay of 37 days. The learned counsel for the assessee submitted that the staff has kept entire papers of this appeal inadvertently with other bundle and same was not traceable immediately. Therefore, the said delay occurred in filing of this appeal by the assessee and he prayed that delay may be condoned in the interest of justice. Considering the affidavit filed by the assessee for condonation of delay, we are of the view that cause is reasonable and hence, delay of 37 days is condoned and appeal is admitted.
4. The common issue in these cross appeals, one by the Revenue and one by the assessee is as regards to order of the CIT(A) directing the Assessing Officer to restrict disallowance at Rs.25 lakhs being 7.5% of total development expenses claimed by the assessee at Rs.3,29,86,128/-, whereas the Assessing Officer has disallowed expenses by invoking provisions of section 40A(3) as well as provisions of section 37 of the Act amounting to Rs.1,91,09,889/-. For this, the Revenue has raised following grounds:-
“2. On the facts and circumstances of the case, the ld. CIT(A) erred in directing the Assessing Officer to disallow only Rs.25 Lakhs, being 7.5% of the total development expenses of Rs.3,29,86,128/- claimed by the assessee.
3. The Id. CIT(A) ought to have appreciated the fact that the expenses claim towards cash payment to the assessee, who is the proprietor, for incurring expenses is not genuine in as much as the said accounts are prepared by the assessee after the survey and is an afterthought.
The Id. CIT(A) ought to have appreciated the fact that as per the statement recorded during the course of survey, the assessee had not maintained any books of accounts other than those impounded during survey and negated the expense claim of Rs.1,91,09,889/-.
5. The Id. CIT(A) ought to have appreciated the fact that the expense claim of Rs.1,91,09,889/- being "Cash paid to Purushothaman for expense incurred" was not reflected in any of the impounded materials and accordingly confirmed the addition.
6. The ld. CIT(A) should have appreciated the fact that even if t is acceptable logically that the assessee has to incur some expenses in relation to his business, the onus is on the assessee to prove the genuineness of such expenses claimed.”
The assessee has raised following ground:-
“2. The CIT(A) erred in estimating part of income and relying on the entries in books of account for determining balance part of income. The CIT(A) ought to have estimated income from entire business by rejecting books of account.”
Brief facts are that the assessee, an individual is engaged in business of real estate and developer. For the assessment year 2011-12, the assessee filed his return of income on 28.05.2012. A survey under section 133A of the Act, was conducted by the Income-tax department on the assessee during which the assessee admitted undisclosed income of Rs.2.91 crores for the relevant assessment year 2011-12. The Assessing Officer, during the course of scrutiny assessment proceedings, noticed from the profit & loss account of the assessee that he has debited an amount of Rs.3,95,34,448/- for development expenses and out of which the assessee debited a sum of Rs.1,91,09,889/- being cash paid to Purushothaman, the assessee. The Assessing Officer required the assessee to file documents and vouchers of such expenses and details of nature of such expenses. The assessee before the Assessing Officer filed reply in response to show-cause notice and the reply is quoted in the order of the Assessing Officer, which is being quoted for the sake of clarity as under:-
“2. Secondly, in the development expenses, it has been proposed to disallow of Rs.1,91,09,889/- towards "being the cash paid to Purusothaman for expense". I have developed the agricultural land that I have purchased and converted them into marketable condition into saleable sites. For these purposes, in order to meet the expenses for the conversion and development charges, I have drawn the amount from my Proprietor firm in the capacity as Proprietor of the firm. Hence, invoking provision u/s.40A(3) is not correct as the payment has withdrawn by me towards business expenditure. Therefore, I request your good self to drop the additions in this regard.
2.1 Next, withdrawing the amount from the firm in the capacity as Proprietor towards the business expenditure does not amount to income in my individual capacity. Since, I am the proprietor or the firm, there are no two different persons wherein at one person it is treated to be income and the other person to be treated as expenses. Hence, the proposed addition is not correct as per general principle of accountancy and therefore I request you drop the additions proposed in this regard.”
The Assessing Officer noted that the assessee has simply given bald reply and not submitted any details, nature of expenses, supporting vouchers or documents during the scrutiny proceedings to prove identity and genuineness of such transactions. Therefore, the Assessing Officer first made disallowance u/s.37 in regard to expenses of Rs.1,91,09,889/-.
Notwithstanding, the Assessing Officer made disallowance by invoking provisions of section 40A(3) of the Act, being expenses paid in cash in excess of Rs.20,000/- per day per person, otherwise than account payee cheque or account payee draft. Aggrieved, the assessee preferred appeal before the CIT(A).
During the course of appellate proceedings before the CIT(A), the assessee filed some evidences and the CIT(A) referred the evidences for Assessing Officer’s comments under Rule 46A(1) of the Income Tax Rules, 1962. The CIT(A) summarized arguments of the Assessing Officer and the assessee in para 4 of the appellate order and relevant portion reads as under:-
a) The books were supported by vouchers. The Assessing Officer has stated that the supporting evidence is not reliable as they are self made vouchers. It was replied that in this line of trade, no other way of maintenance of vouchers/receipts was possible. b) All expenses drawn by the proprietor from the accounts have been disallowed under section 40A(3) of the Income Tax Act, 1961. The Assessing Officer states that certain ledgers not produced at the time of survey under section 133A of the Income Tax Act, 1961, and they were prepared at a later stage as an afterthought. It was stated by the appellant's AR that these were prepared as part of finalisation of accounts. Only an amount of Rs.16,65,078/- out of the Development Expenses were disallowable u/s.40A(3). The Assessing Officer has doubted the reliability of ledgers and the supporting vouchers. c) According to the appellant's AR, the land in question was not a business asset that of at the time of purchase and the payment was made to agriculturists at the time of purchase. It became a business asset only in the subsequent financial year, when the concerned authority gave permission for converting the land and selling in plots. Moreover, addition for payment of stamp duty, registration charges and what is held as closing stock even now cannot be disallowed under section 40A(3) of the Income Tax Act, 1961. The Assessing Officer has not made any further submission on this. d) Disallowance under section 40(a)(i)(a) is not sustainable as the recipient has filed return of income and paid tax on the same. e) The reopening under section 147 was based on certain reasons recorded and that addition has not been made in the Assessment Order. Since no return of income has been filed in response to notice under section 148, the assessment u/s 143(3) is not valid.”
In view of the above, the CIT(A) agreed with the arguments of the assessee and statement made by the Assessing Officer in remand report that only Rs.16.67 lakhs, out of total disallowance of Rs.1,91,09,889/- made by the Assessing Officer is in cash payment and disallowance can be restricted to this extent of Rs.16.67 lakhs. As regards to genuineness of development expenses expressed by the Assessing Officer u/s.37 of the Act, the CIT(A) noted that nature of supporting vouchers maintained by the assessee, it is easily inferable that reasonable estimate of disallowance out of development expenses claimed can be made. According to the CIT(A), total development expenses claimed is Rs.3,29,86,128/-. The CIT(A) noted that land purchased has been developed into plots and the Assessing Officer has not called into question the necessity for incurring development expenses, and estimated disallowance of Rs.25 lakhs was made by him, which works out to 7.5% of development expenses claimed and which would also cover cash expenses of Rs.16.67 lakhs.
Accordingly, on both counts the CIT(A) has considered disallowance at Rs.25 lakhs. Aggrieved, now both the Revenue and the assessee are in appeal before the Tribunal.
We have heard rival contentions and gone through facts and circumstances of the case. We noted that the Assessing Officer himself in his remand report admitted that only an amount of Rs.16,65,078/- out of total development expenses were made in cash and same should be disallowed u/s.40A(3) of the Act. There remains no doubt or ambiguity. As regards to genuineness of expenses, we noted that the CIT(A) has made estimation considering nature of vouchers and evidences maintained by the assessee and he estimated profit at 7.5% of development expenses claimed and accordingly, he estimated profit at Rs.25 lakhs. According to the CIT(A), this Rs.25 lakhs will also cover disallowance made u/s.40A(3) of Rs.16.67 lakhs. We find no infirmity in the findings of the CIT(A), as he has based his findings on the Assessing Officer’s remand report and as regards to genuineness of expenses, he has estimated profit on total development expenses claimed, which includes cash payment and estimated at Rs.25 lakhs. According to us, estimation made by the CIT(A) is reasonable and hence, this common issue of both the appeals is dismissed.
The next issue in assessee’s appeal is as regards to order of the CIT(A) sustaining disallowance made by the Assessing Officer u/s.40A(3) of the Act in regard to disallowance made on purchase of land at Rs.5,92,03,729/-.
For this, the assessee has raised following ground:-
“3. a) The Honourable Commissioner of Income Tax (Appeals) erred in sustaining the disallowance u/s 40A(3) partly by holding that the provisions of that section would apply even to agricultural land. b)The Honourable Commissioner of Income tax (Appeals) failed to appreciate the fact that, the agricultural land could be converted as business assed only upon getting approval of the concerned authorities, thereby the provisions of section 40A(3) would not be attracted at the time of purchase of agricultural land. b)The Honourable Commissioner of Income tax (Appeals) failed to follow the ratio laid down by ITAT, Jodhpur Bench in the case of Smt Jiya Devi Sharma vs ACIT (165 TTJ 20).”
Brief facts are that the Assessing Officer on verification of profit & loss account during the scrutiny assessment proceedings noticed that the assessee has debited directly an amount of Rs.8,15,37,415/-on account of land purchase account i.e., land at Elango Nagar and Archana Avenue Garden. During the course of survey, statement of assessee was recorded u/s.133A of the Act, wherein the assessee admitted that land has been purchased at Elango Nagar for Rs.4,12,54,165/- and at Archana Avenue Garden for Rs.4,02,83,250/-. The Assessing Officer called for break-up of land purchase account along with mode of payment and details of accounts. The assessee submitted details of copy of ledger account for purchase of land and on analysis of such details, the Assessing Officer found that the assessee has made payment of cash more than Rs.20,000/- per day per person for land purchase at Elango Nagar for Rs.2,98,23,000/- and at Archana Avenue Garden for Rs.2,93,80,729/-. Hence, the Assessing Officer required the assessee to explain as to why such payment of Rs.5,92,03,729/- should not be disallowed by invoking provisions of section 40A(3) of the Act. Admittedly, these payments are made in cash and there is no dispute about it. The assessee replied before the Assessing Officer that as regards Elango Nagar land total sum was settled at Rs.4,12,54,165/- by the power-agent, partly by way of cash and partly by way of cheque and accordingly, cash settlement was Rs.2,69,23,000/-. As regards to Archana Avenue Garden land, total cost was settled at Rs.4,02,83,250/-, out of which cash element was Rs.2,93,80,729/- . The assessee only explained that these are agricultural lands and hence, does not attract provisions of section 40A(3) of the Act and therefore, no disallowance should be made. But, the Assessing Officer noted that the assessee has engaged in the business of real estate and developer and he has debited these expenses in his profit & loss account and hence, provisions of section 40A(3) of the Act applies. Accordingly, he made disallowance of Rs.5,65,03,729/-, whereas in final assessment order, it is added as Rs,5,92,03,729/-. In regard to claim of deduction of Rs.29 lakhs, which is paid by the assessee by cheque, the Assessing Officer during the course of scrutiny assessment proceedings considered the same and has not made any addition in operative para, wheras in final computation, he has wrongly taken entire amount as Rs,5,92,03,729/- instead of Rs.5,65,03,729/-. We rectify the computation to that extent.
Aggrieved, the assessee preferred an appeal before the CIT(A).
The CIT(A) confirmed action of the Assessing Officer by observing as under:-
“5.2 As regards payment of Rs 5.92 crore for land, the payment towards stamp duty and registration fees will have to be excluded from the disallowance under section 40A(3). The appellant claimed that since the fond was not a business asset at the point of purchase, and payment was made to agriculturists, the amount is not covered under section 40A (3). The land became a business asset only after permission was granted by the competent authority. which was in the subsequent financial year, 2012-1. lt is to be taken note of that when a claim is made for an expenditure which has Men paid in cash in excess of Rs 20000- in a single day to a person. it will attract provisions of section 40A(3), unless it is covered under exceptions in Rule 6DD of Income Tax Rules,1962. No such exception has been stated by the appellant’s AR. The payments for land in excess of Rs 20000/- would attract provisions of Section 40A(3) unless it is covered by exceptions in Rule 6DD.The decision cited by the appellant's AR Smt.Jiya Devi Sharma Vs AClT (ITAT,. Jodhpur Bench 165 TTJ (Jd)(UO) 20 (2014) is not applicable as in that case the asses see did not have a bank account in that place and payments had to be made in cash. Though the issue of conversion of agricultural land into stock-in-trade has been discussed, the facts of the present case are clear and unambiguous and it will be covered under section 40A(3) when expenditure is claimed as a deduction, while computing profits and gains from business and profession.
The appellant's AR further contended that if at all addition under section 40A(3) is considered, it should be restricted to what has been claimed as expenditure. If the land is reflected as stock, that portion cannot be considered for closing disallowance under section 40A(3) of the Income Tax Act, 1961. for the financial year in which it has not been claimed as deduction as expenditure or purchase. The disallowance under section 40A(3) is to be restricted to that part of the payments for land in cash, where has been claimed as deduction for the financial year 2010-11 relevant for assessment year 2011-12 and what is remaining as closing stock, as on 31.03.2011 should be excluded from disallowance under section 40A(3) of the Income Tax Act.1961 for Assessment Year 2011-12. The Assessing Officer shall restrict disallowance u/s.40A(3) for cash payments for land purchase accordingly.”
Aggrieved, the assessee is in appeal before the Tribunal.
Before us, the learned counsel for the assessee Mr. N.V.Balaji made argument first of all, that land purchased is agricultural lands and for the purchase of agricultural land provisions of section 40A(3) will not apply. Secondly, he argued that on the date of purchase, asset was agricultural land and land has not become business asset, but, it became business asset only on conversion of agricultural land into plots, thereby, it became stock-in-trade. The learned counsel for the assessee stated that the assessee has not at all claimed business expenditure in regard to purchase of agricultural land and this expenditure can be considered in the year, when it is brought in as stock-in-trade and plots are sold at that point of time it can be considered as expenditure. In terms of these three facets of arguments that on disallowance of expenditure u/s.40A(3) in respect of purchase of land, the learned counsel for the assessee stated that the CIT(A) has not considered the issue properly. The CIT(A) directed the Assessing Officer to restrict disallowance u/s.40A(3) only on that part for which payment for land in cash has been claimed as deduction for the financial year 2010-11 relevant to the assessment year 2011-12 and what remains as closing stock as on 31.03.2012 should be excluded from disallowance u/s.40A(3) of the Act.
The CIT(A) directed the Assessing Officer accordingly. The learned counsel argued that entire expenditure is not claimed by the assessee and hence, for this year no disallowance should be made.
On the other hand, the ld.CIT DR Mr. R.Mohan Reddy argued that the assessee is engaged in the business of real estate and developer and once land is purchased i.e. purchased as business asset and immediately, it is brought into stock-in-trade. He stated that the assessee has debited this amount into profit and loss account and once amount is debited, the assessee claimed entire expenditure and for which the assessee has made cash payment . Once, the assessee has made cash payment for incurring this expenditure, the Assessing Officer has rightly applied provisions of section 40A(3) for making disallowance of entire amount of Rs.5.92 crores, being cost towards purchase of land, payment towards stamp duty and registration charges etc. In term of the above, the CIT DR heavily relied on order of the Assessing Officer and that of the CIT(A).
We have heard rival contentions and gone through facts and circumstances of the case. First we have to analyze whether the assessee’s claim of agricultural land falls under purview of section 40A(3) of the Act or not. The facts of the present case is that the assessee is an individual and proprietor of M/s.Nilgiris Garden Real Estate and engaged in the business of real estate. During the year, the assessee has purchased agricultural land for a sum of Rs.8,15,37,415/- i.e., at Elango Nagar and Archana Avenue Garden. Admittedly, the assessee has made cash payment to the tune of Rs.2,69,23,000/- for Elango Nagar land and paid a sum of Rs.2,93,80,729/- for Archana Avenue Garden land. The assessee debited expenditure directly in the land purchase account asper copies of ledger account, purchase account of land submitted before the Assessing Officer and CIT(A). The assessee in his books of account has treated this purchase of land as closing stock. According to us, the assessee once engaged in real estate business and purchased agricultural land for the purpose of developing the same into plots and debited the expenses directly in the land purchase account, as evidenced from copies of ledger account, the assessee’s asset is business asset. The assessee cannot claim that nature of land in his hand is agricultural land. By no stretch of imagination, it can be said that the land is agricultural land. The land is stock-in-trade and hence, plea of the assessee cannot be accepted at all.
Coming to another facet of argument of the assessee that the assessee has not claimed expenditure, the accounts of the assessee clearly reveal that the assessee has claimed deduction of expenditure and admittedly, payment for the same expenditure is made in cash . In view of the above, we are of the considered view that the CIT(A) has rightly upheld disallowances u/s.40A(3) of the Act and direction given to the Assessing Officer. Hence, we confirm order of the CIT(A) on this issue and this issue of the assessee is dismissed.
The next issue in the appeal of the assessee is as regards to order of the CIT(A) confirming disallowance of expenses for non-deduction of TDS by invoking provisions of section 40(a)(ia) of the Act.
We have heard rival contentions and gone through facts and circumstances of the case. The Assessing Officer, on verification of profit & loss account, noticed that theassessee has debited expenses on interest payment of Rs.3.00 lakhs to one Shri P.T.Dinakaran for unsecured loans. Since no TDS was deducted, the Assessing Officer disallowed expenses by invoking provisions of section 40(a)(ia) of the Act. Now before us, the learned counsel for the assessee only made submission that recipient party i.e. Shri P.T.Dinakaran has included this interest income in his return of income and this fact is noted by the CIT(A) . He has read out from order the CIT(A), where this fact is recorded in para 5.4 as under:-
“5.4 As regards the disallowance u/s.40(a)(ia) amounting to Rs.3,00,000/- the appellant has produced evidence for the recipient having paid tax and filed return of income. It was contended that the second proviso of section 40(a)(ia) is curative and clarificatory in nature.”
As recipient has disclosed the income in his return of income i.e. Mr.P.T.Dinakaran, disallowance should not be made in the hands of the assessee in view of the second proviso to section 40(a)(ia) of the Act, as amended .w.e.f 01.04.2014, which is retrospective. The learned counsel for the assessee before us filed decision of the Hon'ble Delhi High Court in the case of CIT Vs. Ansal Land Mark Township P. Ltd.(2015) 377 ITR 635 (Del) for the proposition. The ld. CIT DR has not objected.
After hearing both the parties and going through facts, we noted that admitted facts are that recipient has disclosed income in his return of income and once he has paid taxes on the same, the assessee can be absolved from payment of TDS, in view of the second proviso to section 40(a)(ia) of the Act, as amended w.e.f. 01.04.2014, which is held to be retrospective in nature by the Hon’ble Delhi High Court in the case of CIT Vs. M/s. Ansal Land Mark Township P. Ltd. (supra). As the issue is covered, we allow this issue of the assessee’s appeal.
The next issue in the appeal of the assessee is as regards to order of the CIT(A) in not adjudicating the issue of reopening of assessment u/s.147 of the Act, in light of judgement of the Hon’ble Bombay High Court in the case of CIT Vs. Jet Airways(India) Ltd. 331 ITR 236.
Brief facts relating to this issue are that the assessment was completed by the ACIT., Salary Cirlce-1, Coimbatore for the relevant assessment year 2011-12 u/s.143(3) of the Act vide order dated 06.06.2014. Subsequently, the assessee moved before the CIT(A) and challenged issue of reopening in the first round and the CIT(A) in the first round has quashed reassessment proceedings. This appellate order of the CIT(A) was challenged by the Revenue before the Tribunal in wherein the Tribunal vide order dated 11.08.2016 has allowed appeal of the Revenue on the issue of reopening, but directed the CIT(A) to decide grounds raised by the assessee on merits. The relevant finding given by the Tribunal in ITA No.750/Mds/2016 in para 7 reads as under:-
“ 7. The case law mainly relied on by the ld. CIT(A) in the case of Super Spinning Mills Ltd. v. Addl. CIT [2010] 129 TTJ (Chennai) [TM] 305 has no application to the facts of the present case. In that case, admittedly, there was no search and seizure or survey conducted by the Department and therefore, the Coordinate Bench of the Tribunal has given a solitary findings that unless the return filed by the assessee is scrutinised by the Assessing Officer, he cannot come to the conclusion of any escapement of income and moreover, the Assessing Officer cannot initiate proceedings under section 147 when the time for issuance of notice under section 143(2) has not expired. But in the present case, the Assessing Officer is not required to proceed to scrutinize the return filed by the assessee to come to the conclusion that there is escapement of income since the assessee has admitted less income in the return than what was admitted during the course of survey proceedings under section 133A of the Act. Under the above facts and circumstances, quashing the assessment passed under section 143(3) r.w.s.147 of the Act by the ld. CIT(A) cannot be sustained under law. Accordingly, we restore the assessment order passed by the Assessing Officer under section 143(3) r.w.s. 147 of the Act and direct the ld. CIT(A) to decide the grounds raised by the assessee on merits.”
Now before us, the learned counsel for the assessee was asked whether any ground regarding reopening of assessment was raised before the CIT(A) in second round, the counsel for the assessee could not point out, but he drew our attention to submissions made before the CIT(A) during 2nd round, while he referred to only para 4.3 of the submissions dated ‘Nil’, enclosed as annexure in the paper book at pages 2 to 10.
But, when it was pointed out that whether the assessee is in challenge of order of the Tribunal confirming reopening and setting aside the matter back to the file of the CIT(A) to decide the issues on merits, he challenged or not, the learned counsel stated that he already preferred appeal before the Hon’ble Madras High Court and the matter is pending. We have seen from facts that first of all, in second round, the assessee had not raised any ground before the CIT(A) or not raised any plea regarding issue of reopening on the issue other than the one considered for reopening, in view of the decision of the Hon’ble (supra). Since no ground is raised either before the CIT(A) , the issue has attained finality or the matter is pending before Hon’ble Madras High Court on this issue. Hence, at this stage, we are not inclined to entertain this issue. Hence, the issue is dismissed.
In the result appeal of the assessee is party allowed.
In regard to cross objection filed by the assessee, the assessee has raised similar grounds as that of the appeal in infructuous.