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Income Tax Appellate Tribunal, INDORE BENCH, INDORE
Before: SHRI KUL BHARAT & SHRI MANISH BORAD
PER MANISH BORAD, AM.
The above captioned appeal is filed at the instance of assessee
pertaining to Assessment Year 2007-08 and is directed against the
orders of Ld. Commissioner of Income Tax (Appeals)-II (in short
‘Ld.CIT(A)’], Indore dated 20.06.2017 which is arising out of the
order u/s 148/143(3) of the Income Tax Act 1961(In short the ‘Act’)
dated 16.03.2015 framed by ITO-4(3), Indore.
Assessee has raised following grounds of appeal; 1
Shagun Developers ITA No.588/Ind/2017 “1. That on the facts and in the circumstances of the case and law the Ld. CIT(A) erred in confirming addition of Rs.15,00,000/-made by the Ld.A.O under section 40A(3). 2. That on the facts and in the circumstances of the case and law the Ld. CIT(A) failed to appreciate the fact that the payment of Rs.15,00,000/- for purchase of agricultural land was made on account of acquisition of capital assets and in the balance sheet of the firm also it is shown and classified as investment in fixed assets, consequent thereto it is out of purview of section 40A(3). 3. That on the facts and in the circumstances of the case and law the Ld. CIT(A) failed to appreciate the fact that the appellant firm purchased agricultural land from the agriculturist which falls under specified circumstances under Rule 6DD, as such out of ambit of section u/s 40A(3).
Briefly stated facts as culled out from the records are that the
assessee is partnership firm engaged in the business of builder and
developer. Return of income for the Assessment Year 2007-08 was
not filed. Notice u/s 148 of the Act was duly served upon the
assessee after duly recording the reasons. Assessment proceedings
u/s 143(3) r.w.s. 148 of the Act was completed after making a
disallowance u/s 40A(3) of the Act for the alleged cash payment of
Rs.15,00,000/- for purchase of property thereby violating the
provisions of Section 40A(3) of the Act for the alaleged incurring
expenditure in cash for a sum exceeding Rs.20,000/-.
Aggrieved assessee preferred appeal before Ld.CIT(A) but failed 2
Shagun Developers ITA No.588/Ind/2017 to succeed as Ld. CIT(A) confirmed the view taken by the Learned
Assessing Officer (In Short ‘Ld. A.O’) that the assessee has violated
the provisions of Section 40A(3) of the Act.
Aggrieved assessee is now in appeal before the Tribunal.
Ld. Counsel for the assessee submitted that no expenditure
has been claimed in the Profit & Loss Account and therefore no
disallowance should have been made by Ld. A.O u/s 40A(3) of the
Act. Reliance was placed on the decision of Co-ordinate Bench,
Delhi in the case of ACIT V/s Jasmine Buildtech (P) Ltd ITA No.
1679/Del/2013 order dated 21.11.2017.
Per contra Departmental Representative supported the orders
of lower authorities.
We have heard rival contentions and perused the records
placed before us and carefully gone through the decision relied by
Ld. Counsel for the assessee. Sole grievance raised by the assessee
in Ground 1, 2 & 3 relates to disallowance of Rs.15,00,000/- made
by Ld. A.O u/s 40A(3) of the Act which has been confirmed by the
Ld. CIT(A).
Shagun Developers ITA No.588/Ind/2017 9. Provisions of Section 40A(3) of the Act are violated if the
assessee incur any expenditure in respect of which payment is
made in a sum exceeding Rs.20,000/- otherwise then by account
payee cheque drawn on a bank or by a account payee draft then in
such situation no deduction shall be allowed for such expenditure.
From perusal of the above provision 40A(3) of the Act we
understand that the first condition before making disallowance u/s
40A(3) is that an “expenditure has to be incurred” and thereafter it
is to be seen that whether such expenditure has been incurred in
cash.
Now examining the facts of the instant appeal, we observe that
the assessee firm was incorporated on 21.12.2006 and the year
under appeal is the first year of the assessee firm. On perusal of
the balance sheet placed at page-3 of the paper book, we find that
against the partners capital totaling to Rs.31,38,145/- there are
two items on the assets side namely fixed assets at Rs. 31,37,670/-
and cash in hand at Rs.475/-. No Profit & Loss Account has been
prepared for the financial year 2006-07 as there was no occasion to
prepare because there is no revenue and expenditure during the
Shagun Developers ITA No.588/Ind/2017 year. We also observe that the alleged cash payment is made for
purchasing the plot of land which has not been shown as stock in
hand rather it has been shown under the heads fixed assets.
Further we find that the Co-ordinate Bench of Delhi in the
case of ACIT V/s Jasmine Buildtech (P) Ltd (supra) adjudicating
similar issue has held that “where payments has not been claimed
as expenditure then no disallowance u/s 40A(3) of the Act shall
arise”.
We therefore in the given facts and circumstances of the case
and respectfully following the decision of the Co-ordinate Bench are
of the considered view that as the assessee has not incurred any
expenditure during the year in cash and the alleged cash payment
has been utilized for purchasing the fixed assets, both the lower
authorities erred in sustaining the disallowance u/s 40A(3) of the
Act at Rs.15,00,000/- We accordingly direct the Assessing Officer to
delete the addition of Rs.15,00,000/- and allow Ground No.1 & 2
raised by the assessee.
Shagun Developers ITA No.588/Ind/2017 13. As regards Ground No.3 by which assessee claimed that the
cash payment of Rs.15,00,000/- has been made to purchase an
agriculture land and the case of the assessee is covered under the
exceptions provided under rule 6DD of the I.T rules, we find no
reason to adjudicate this ground as we have already deleted the
disallowance of Rs.15,00,000/- made u/s 40A(3) of the Act and
therefore Ground No.3 is rendered to be infructuous and merely
academic in nature. In the result Ground No.3 of the assessee is
dismissed.
In the result appeal of the assessee is allowed.
The order pronounced in the open Court on 19.12.2018.
Sd/- Sd/-
( KUL BHARAT) (MANISH BORAD) JUDICIAL MEMBER ACCOUNTANT MEMBER �दनांक /Dated : 19 December, 2018 /Dev
Copy to: The Appellant/Respondent/CIT concerned/CIT(A) concerned/ DR, ITAT, Indore/Guard file.
By Order, Asstt.Registrar, I.T.A.T., Indore