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Income Tax Appellate Tribunal, NAGPUR BENCH, NAGPUR
Before: SHRI SANDEEP GOSAIN & SHRI G. MANJUNATHA
PER G. MANJUNATHA, A.M.
These two appeals have been filed by the different assessees
challenging separate but identical orders dated 14th July 2015 and 15th
October 2015, passed by the learned Commissioner (Appeals)–I,
Nagpur, for the assessment year 2011–12.
Since these appeals involving common issues arising out of
identical set of facts and circumstances, therefore, as a matter of
convenience, these appeals were heard together and are being
disposed off by way of this consolidated order.
ITA no.291/Nag./2015 Assessee’s Appeal – A.Y. 2011–12
The assessee has raised following grounds of appeal:–
“1) That, on facts, law and circumstances of the present case, the learned CIT (A)-I, Nagpur erred in confirming the business disallowance of ` 43,00,000/- under section 40A(3) of the Income Tax Act, 1961, made by the learned DCIT, Circle-1, Nagpur, whereas the impugned payment (Advance) amounting to ` 43,00,000/- (Cash) has not been made by the appellant company during the year under consideration, the same corresponds to F.Y 2009-10 relevant to A.Y 2010-11, i.e preceding the year under appeal.
2) The learned CIT (A)-I, Nagpur has also erred in not Considering the evidences submitted before him, the merit and factual position of the case resulting in confirmation of arbitrary disallowance of the sum as mentioned in Ground No.- 1 Supra, the action and view taken by the learned CIT (A)-I, Nagpur as well as learned A.O is palpably bad and not tenable in law hence the Order passed by the learned A.O and confirmed by the learned CIT(A)-I, Nagpur, must be quashed.”
3 M/s. Pyramid Developers M/s. Pyramid Arcade Pvt. Ltd.
Brief facts of the case are that the assessee is engaged in the
business of land development & construction and sale of flats. A
survey action under section 133A of the Income Tax Act, 1961 (for
short “the Act”) was carried out at the premises of the assessee on 19th January 2011. A survey action resulted into detection of
incriminating documents impounded as per Annex. B–1 and B–2. Shri
Gunwant Sudamrao Deopare, Director of M/s. Pyramid Arcades Pvt.
Ltd., in the course of his statement recorded on oath under section 131 of the Act on 19th January 2011, in response to Questions no.12 to
16, had admitted the additional unaccounted income of ` 2,09,37,500.
The additional unaccounted income was declared on account of on–
money received from sale of flats which has not been accounted for in
the books of account. The assessee has filed its return of income for assessment year 2011–12 on 29th September 2011, declaring total
income at ` 1,70,13,782, as against the declared income of `
2,09,37,500.
During the course of assessment proceedings, the Assessing
Officer noticed that although the assessee had admitted additional
income of ` 2,09,37,500, only declared an income of ` 1,70,13,782,
therefore, issued a show cause notice asking the assessee as to why
the sum of ` 39,23,718, should not be added to his total income. In
4 M/s. Pyramid Developers M/s. Pyramid Arcade Pvt. Ltd.
response to the show cause notice, the learned Authorised
Representative for the assessee has filed his submissions and
contended that in survey what has been agreed is the total receipt
during the previous year and whole of the receipts are not income. The
Assessing Officer, after considering the relevant submissions of the
assessee and also taking into account the declaration given during the
course of survey observed that the assessee has offered additional
income made on account of on–money towards sale of flats, therefore,
the plea of the assessee is not tenable. Accordingly, he made addition
of ` 39,23,718.
The Assessing Officer further noticed that the assessee has
debited an amount of ` 2,58,86,000, to purchase account. In order to
ascertain the correctness of purchases, the Assessing Officer called
upon the assessee to file necessary evidences. In response, the
assessee has filed copy of sale deeds of land. The Assessing Officer, on
analysis of sale deeds, noticed that the assessee has made cash
payment exceeding ` 20,000 on various dates for purchase of land in
contravention of provisions of section 40A(3) of the Act. The total of
such payments comes to ` 43 lakh. Therefore, the Assessing Officer
issued show cause notice and asked the assessee as to why cash
payment of ` 43 lakh shall not be disallowed as per the provisions of
section 40A(3) of the Act. In response, the assessee has submitted
5 M/s. Pyramid Developers M/s. Pyramid Arcade Pvt. Ltd.
that there is a business exigencies in making cash payment and also
the identity and genuineness of transportation are beyond doubt. The
assessee dealt with the seller for the first time and the seller insisted
for cash payment, therefore, its case falls within the ambit of rule
6DD(j) and covered by Circular no.220 of 1997, issued by the CBDT,
where it was explained the business exigencies. The Assessing Officer
after considering the submissions of the assessee and also on analysis
of provisions of section 40A(3) of the Act and rule–6DD(j), held that as
per the provisions of section 40A(3) of the Act, if any payment is made
otherwise by way of account payee cheque / demand draft in excess of
` 20,000, then the whole amount shall be disallowed under section
40A(3) of the Act. The Assessing Officer further observed that though
the assessee claimed to have covered within the provisions of rule
6DD(j) and CBDT Circular no.220 of 1997, but fact remains that the
provisions of rule–6DD(j) has been omitted from statue and
accordingly the circular issued by CBDT explaining the provisions of rule 6DD(j) is also omitted from the statute w.e.f. 25th July 1995.
Accordingly, he made addition of ` 43 lakh under section 40A(3) of the
Act. The Assessing Officer also made addition of penalty expenses of `
1,19,230, rent of ` 1,98,450 under section 40(a)(ia) of the Act for
failure to deduct TDS under section 194I of the Act, and also
disallowed the amount of ` 2,57,530 towards advertisement expenses
6 M/s. Pyramid Developers M/s. Pyramid Arcade Pvt. Ltd.
for failure to deduct tax at source under section 194C of the Act.
Aggrieved by the assessment order passed by the Assessing Officer,
the assessee preferred appeal before the first appellate authority.
Before the learned Commissioner (Appeals), the assessee
reiterated the submissions made before the Assessing Officer in
respect of all additions. The learned Commissioner (Appeals), for the
detailed reasons recorded in his order, dismissed the appeal filed by
the assessee and confirmed the additions made by the Assessing
Officer towards difference in income admitted during the course of
survey, disallowance of cash payment under section 40A(3) of the Act,
disallowance of penalty expenses, disallowance of rent and
disallowance of advertisement expenses. Aggrieved by the order
passed by the learned Commissioner (Appeals) the assessee is in
further appeal before us.
The only issue that came up for our consideration is disallowance
of cash payments of ` 43 lakh under section 40A(3) of the Act. The
learned Counsel for assessee submitted that the learned Commissioner
(Appeals) erred in not appreciating the fact in right perspective even
though the assessee has filed necessary evidences to prove necessity
of making cash payment for purchase of lands and also the business
exigencies. The learned Counsel for assessee further submitted that
7 M/s. Pyramid Developers M/s. Pyramid Arcade Pvt. Ltd.
the assessee has made cash payment on Sunday being holiday,
therefore, there is no option for the assessee to make payment by
account payee cheque or demand draft, as the said payment has been
made at the instance of buyer who insisted for cash payment. The
learned Counsel for assessee further submitted that there is a business
exigencies and the proviso to section 40A(3) of the Act gives exception
in the cases where the business exigencies required to make payment
otherwise by way of account payee cheque or demand draft and such
payments are are outside the purview of section 40A(3) of the Act.
The learned Counsel for assessee further submitted that the impugned
payments are made in the financial year different than the financial
year under appeal for which necessary evidences have been placed
before the learned Commissioner (Appeals). The learned
Commissioner (Appeals) ignored all these evidences and confirmed the
additions made by the Assessing Officer merely for the reason that no
evidences have been filed. Therefore, one more opportunity may be
given to the assessee to file necessary evidences before the Assessing
Officer and accordingly requested for restoring the issue to the file of
the Assessing Officer.
The learned Departmental Representative, on the other hand,
strongly supported the order of the learned Commissioner (Appeals).
The learned Departmental Representative further submitted that the
8 M/s. Pyramid Developers M/s. Pyramid Arcade Pvt. Ltd.
assessee although claimed to have made payment on Sunday failed to
file any evidence justifying its claim, therefore, the learned
Commissioner (Appeals) was right in rejecting the claim. The learned
Departmental Representative further submitted that the assessee has
taken different argument before the learned Commissioner (Appeals)
to contend that the impugned payments are made in the financial year
different from the financial year under appeal, but failed to file any
corroborative evidence, therefore th learned Commissioner (Appeals)
rightly rejected the claim of the assessee and his order should be
upheld.
We have heard rival contentions and perused the material
available on record. It is undisputed fact that the assessee has made
cash payment in excess of ` 20,000 in contravention of provisions of
section 40A(3) of the Act. The assessee claimed that its case comes
within the purview of proviso to section 40A(3) of the Act, where it
was clarified that no difference shall be made and no payment shall be
deemed to be the profit and gain of business or profession under sub–
section (3) where a payment made to a person in a day otherwise than
by account payee cheque drawn on a bank or account payee bank
draft in such cases and under such circumstances as may prescribed,
having regard to the nature of banking facilities available,
consideration of business expediency and other relevant factors. The
9 M/s. Pyramid Developers M/s. Pyramid Arcade Pvt. Ltd.
assessee claimed that it has made cash payments, as the buyer are
dealing with us for the first time and are insisting for cash payment.
Therefore, there is a business expediency and accordingly cash
payment outside the purview of provisions of section 40A(3) of the
Act.
Having heard both sides, we find that although the assessee
claims to have made the payment on the insistence of the buyer failed
to file any corroborative evidences to justify its stand, therefore, we
are of the considered view that the assessee failed to make out a case
of business expediency. Insofar as the payment made on Sunday is
concerned, although the assessee claims that the payments are made
on Sunday, failed to file any evidences, therefore, we are of the
considered view that the assessee failed to make out even a case of
non–availability of banking facility at the place of payment and on the
date of payment. Hence, we are of the considered view that the
Assessing Officer was right in making additions towards cash payment
under section 40A(3) of the Act. Coming back to the second argument
of the assessee, the learned Authorised Representative for the
assessee has taken an argument for the first time before the learned
Commissioner (Appeals) that the impugned payments are made in
financial year different from financial year under consideration,
therefore, no additions can be made under section 40A(3) of the Act,
10 M/s. Pyramid Developers M/s. Pyramid Arcade Pvt. Ltd.
in respect of payments made in a year different from the assessment
year under consideration, in this regard, he filed necessary details
including copy of sale deeds.
Having considered both the parties, we find that as per the
provisions of section 40A(3) of the Act, where the assessee incurs any
expenditure in respect of which a payment made to a person in a day
otherwise than by way of account payee cheque / demand draft in
excess of ` 20,000, no deduction shall be allowed in respect of such
expenses. In this case, the assessee claims that it has made payment
in previous financial year different from the year under consideration,
therefore, if at all any addition is required it can be made in a year in
which the payments are made. We do not find any merit in the
arguments advanced by the assessee for the reason that the year of
payment is irrelevant for the purpose of disallowance of section 40A(3)
of the Act and what is required is the year of claim of expenditure in
the books of account. In this case, the Assessing Officer has brought
out clearly the facts to the effect that the assessee has debited
expenditure towards purchase of land in the year under consideration
and, hence, any payment made in cash including payment made in
previous financial year are coming within the ambit of section 40A(3)
of the Act, when such payment has been treated as expenditure in
Profit & Loss account. Therefore, we are of the considered view that
11 M/s. Pyramid Developers M/s. Pyramid Arcade Pvt. Ltd.
the Assessing Officer was right in making addition towards cash
payment under section 40A(3) of the Act . The learned Commissioner
(Appeals) after considering the relevant submissions has rightly
confirmed the addition made by the Assessing Officer. Consequently,
we do not find any error in the order of the learned Commissioner
(Appeals) and, therefore, we are inclined to uphold the findings of the
learned Commissioner (Appeals) and dismissed the grounds raised by
the assessee.
In the result, assessee’s appeal stands dismissed.
ITA no.343/Nag./2015 Assessee’s Appeal – A.Y. 2011–12
The first issue that came up for our consideration from ground
no.1 is disallowance of cash payment of ` 53,50,000 under section
40A(3) of the Act.
We have considered similar issue in ITA no.291/Nag./2015, in
preceding paragraph. The facts involved in this appeal are identical to
the facts which we have already considered in appeal being ITA
no.291/Nag./2015. The reasons given by us in preceding paragraph
shall mutatis mutandis apply to this appeal also and, therefore, for
similar reasons, we uphold the finding of the learned Commissioner
(Appeals) in confirming the disallowance of cash payment under
12 M/s. Pyramid Developers M/s. Pyramid Arcade Pvt. Ltd.
section 40A(3) of the Act and dismiss the ground of appeal by the
assessee.
The second ground that came up for our consideration is
disallowance of bad debt written–off of ` 10.50 lakh.
The Assessing Officer has disallowed bad debt written–off on the
ground that the assessee has failed to file necessary evidences to
prove that the income pertaining to bad debt written–off in the year
under consideration has been considered in the previous financial year.
According to the Assessing Officer, the assessee has not fulfilled the
conditions prescribed under section 36(2) of the Act, therefore,
disallowed bad debt claim of ` 10.50 lakh. It is the contention of the
assessee that once bad debt is written–off in the books of account, it is
not necessary to prove that the debt has really become bad and What
is required is the debt must be written–off in its books of account and
the income has been offered in previous financial year. The assessee
further contended that even otherwise also, it is a business loss
incurred wholly and exclusively in connection of the business which
needs to be allowed under section 37 of the Act, once the assessee
proved that these are normal business advances given in the course of
business.
13 M/s. Pyramid Developers M/s. Pyramid Arcade Pvt. Ltd.
We have heard rival contentions and perused the material
available on record. There is no dispute with regard to the fact that the
assessee has claimed bad debt written–off in books of account by
passing necessary journal entries by writing–off debts in the books of
account. Once the debts are written–off in the books of account, it is
sufficient compliance of provisions of section 36(1)(viia) of the Act and
the assessee is not required to prove that the debt become real bad
during the year under consideration. This legal position has been
reiterated by the Hon’ble Supreme Court in TRF Ltd. v/s CIT, 190
taxman 391 (SC), wherein the Hon’ble Supreme Court held that after 1st April 1989, it is not necessary for the assessee to establish that the
debt has become irrecoverable and it is only if the bad debt is written–
off as irrecoverable in the accounts of the assessee. In this case, there
is no doubt with regard to the fact that the assessee has written–off
the debt in the books of account. Therefore, we are of the considered
view that the Assessing Officer was erred in disallowing bad debt
under section 36(1)(viia) of the Act. The learned Commissioner
(Appeals) without appreciating the facts simply confirmed the addition
made by the Assessing Officer. Therefore, we reverse the finding of
the learned Commissioner (Appeals) on this issue and direct the
Assessing Officer to delete the addition made on account of bad and
doubtful debt.
14 M/s. Pyramid Developers M/s. Pyramid Arcade Pvt. Ltd.
The next issue that came up for our consideration is disallowance
of brokerage and commission expenses of ` 7,25,390.
The Assessing Officer disallowed brokerage expenses of ` 18.
7,25,390 on the ground that the brokerage and commission expenses
claimed by the assessee is excess and unreasonable when compared
to the gross receipt from the business. The Assessing Officer further
observed that the assessee has claimed brokerage and commission
expenses of ` 76,47,410, which is 7.9% of gross receipts. Accordingly,
he has allowed brokerage and commission to the extent of 5% of
gross receipts and balance amount has been disallowed. It is the
contention of the assessee that brokerage and commission expenses is
supported by valid evidences and also necessary TDS has been
deducted, therefore, there is no reason for the Assessing Officer to
disallow part of the brokerage expenses on the ground that it is
excessive and unreasonable without bringing on record any
comparable cases where the brokerage expenses is less than or equal
to 5%. The assessee further contended that in the absence of any
incorrectness in bills and vouchers in respect of a particular
expenditure, the books of account cannot be rejected only for
estimating a single expenditure.
15 M/s. Pyramid Developers M/s. Pyramid Arcade Pvt. Ltd.
Having heard both the parties and considering the material on
record, we find that the Assessing Officer disallowed brokerage and
commission expenses by allowing ad–hoc 5% on gross receipts
without bringing on record any contrary finding in respect of books of
account and bills and vouchers maintained for such expenses. On the
other hand, the assessee has filed necessary evidences to prove that
the brokerage has been paid by cheque and necessary TDS has been
deducted on such brokerage payments. Therefore, we are of the
considered view that the Assessing Officer was erred in making ad–hoc
disallowance without bringing on record any contrary finding in respect
of books of account and bills and vouchers. The learned Commissioner
(Appeals) has accepted the fact that brokerage expenses is supported
by valid evidence, yet confirmed partial amount of ` 7,25,390 on the
ground that ` 7,25,290, pertains to advances reflected in the Balance
Sheet as liability which is pertaining to other financial years other than
the year under appeal which cannot be allowed as deduction for the
year under consideration. We also find that the finding of the fact
recorded has not been controverted by the assessee by filing any
evidence to prove that the said amount pertains to the assessment
year in question. Therefore, we are of the considered view that there is
no error in the finding of the learned Commissioner (Appeals), hence,
16 M/s. Pyramid Developers M/s. Pyramid Arcade Pvt. Ltd.
we are inclined to uphold the findings of the learned Commissioner
(Appeals) and reject the ground taken by the assessee.
The next issue that came up for our consideration is disallowance
of murum expenses, poal expenses, sand and boulder expenses of `
38,07,335.
The Assessing Officer made addition towards expenditure
incurred by rejecting the books of account on the ground that the
assessee has failed to file any documentary evidence in support of such expenses and also a single entry has been passed on 31st March
2011, without any description. The Assessing Officer further observed
that the said expenditure was claimed to have been incurred in cash.
The Assessing Officer further stated that the assessee could not
produce any bills and vouchers in support of expenditure. It is the
contention of the assessee that it has furnished necessary evidence in
support of murum expenses, poal expenses, sand and boulder
expenses, but the Assessing Officer ignored all the evidences filed
merely for the reason that the said evidences are Xerox copies of bills
and vouchers. The assessee further contended that it has filed
complete details of ledger account along with bills and vouchers in
support of expenses, therefore, there is no reason for the Assessing
17 M/s. Pyramid Developers M/s. Pyramid Arcade Pvt. Ltd.
Officer to make disallowance of expenditure merely for the reason that
one single entry has been passed in the books of account.
We have heard rival contentions and perused the material
available on record. The assessee has filed a paper book containing
ledger account of expenditure along with bills and vouchers in support
of murum expenses, poal expenses, sand and boulder expenses. The
assessee claimed that though a single entry has been passed in the books of account as on 31st March 2011, the said expenditure is
supported by proper bills and vouchers, but the authorities below
ignored all evidences only on the reason that a single entry has been
passed at the end of the year. There is a divergent facts emerged from
the orders of the lower authorities and the arguments of the assessee.
The Assessing Officer claimed that the assessee has not filed any
evidence in support of expenditure. Though, the learned Commissioner
(Appeals) accepted the fact that the assessee has filed xerox copy of
vouchers, but went on to confirm the additions on the ground that
those vouchers were not furnished before the Assessing Officer during
the assessment proceedings. The assessee might not have furnished
evidences before the Assessing Officer, but when said evidences were
produced before the learned Commissioner (Appeals), the learned
Commissioner (Appeals) ought to have commented on the evidences
filed by the assessee himself or get them verified from the Assessing
18 M/s. Pyramid Developers M/s. Pyramid Arcade Pvt. Ltd.
Officer by calling for remand report before arriving at a conclusion that
the assessee has failed to give any justification for such expenditure.
Therefore, we are of the considered view that the issue needs to be
re–examined by the Assessing Officer in the light of the evidences by
the assessee, hence, we restore the issue to file of the Assessing
Officer and direct him to cause necessary verification of bills and
vouchers filed by the assessee afresh after giving a reasonable
opportunity of hearing to the assessee. Accordingly, the ground raised
by the assessee is allowed for statistical purposes.
In the result, appeal by the assessee is allowed for statistical
purposes.
To sum up, appeal in ITA no.291/Nag./2015 is dismissed and
appeal in ITA no.343/Nag./2015, is partly allowed for statistical
purposes.
Order pronounced in the open Court on 26.10.2018
Sd/- Sd/- SANDEEP GOSAIN G. MANJUNATHA JUDICIAL MEMBER ACCOUNTANT MEMBER
NAGPUR, DATED: 26.10.2018
19 M/s. Pyramid Developers M/s. Pyramid Arcade Pvt. Ltd.
Copy of the order forwarded to:
(1) The Assessee; (2) The Revenue; (3) The CIT(A); (4) The CIT, Nagpur City concerned; (5) The DR, ITAT, Nagpur; (6) Guard file. True Copy By Order Pradeep J. Chowdhury Sr. Private Secretary
(A.R./Sr. P.S./P.S.) ITAT, Nagpur