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Income Tax Appellate Tribunal, ‘A‘ BENCH
आदेश / O R D E R PER M. BALAGANESH (A.M):
(Assessment Year :2012-13) & Year :2013-14)
These appeals in 2976/Mum/2019 for A.Y.2012-13 & 2013-14 arise out of the order by the ld. Commissioner of Income Tax (Appeals)-54, Mumbai in appeal No.CIT(A)-54/IT- 10391/DCCC-6(2)/2017-18 & CIT(A)-54/IT-10393/DCCC-6(2)/2017-18 dated 11/02/2019 (ld. CIT(A) in short) against the order of assessment passed u/s.153C r.w.s. 143(3) of the Income Tax Act, 1961 (hereinafter referred to as Act) dated 20/12/2017 by the ld. Dy. Commissioner of Income Tax, Central Circle 6(2), Mumbai (hereinafter referred to as ld. AO).
ITA No.2983/Mum/2019 (A.Y.2014-15) This appeal in for A.Y.2014-15 arises out of the order by the ld. Commissioner of Income Tax (Appeals)-54, Mumbai in appeal No.CIT(A)-54/IT-10376/DCCC-6(2)/2017-18 dated 08/02/2019 (ld. CIT(A) in short) against the order of assessment passed u/s.153A r.w.s. 143(3) of the Income Tax Act, 1961 (hereinafter referred to as Act) dated 28/12/2017 by the ld. Dy. Commissioner of Income Tax, Central Circle 6(2), Mumbai (hereinafter referred to as ld. AO).
Identical issues are involved in all these appeals and hence they are taken up together and disposed of by this common order for the sake of convenience.
M/s. Ahuja Housing Projects P. Ltd., & M/s. Ahuja Properties Asst Year 2012-13 – Assessee Appeal
The first identical issue to be decided is as to whether the ld. CIT(A) was justified in confirming the addition of Rs 26,76,106/- as income from inflation of expenses in the facts and circumstances of the case for the A.Y. 2012-13.
We have heard the rival submissions and perused the materials available on record. We find that the search operation u/s 132 of the Act was conducted in the Ahuja group of cases on 25/06/2015 and certain loose papers and digital forms were found and seized. Pursuant to the said search, the assessee, being a group company, was issued notice u/s 153C of the Act for the A.Y. 2012-13 on 24/03/2017 after recording satisfaction note and duly served upon the assessee. The assessee then filed a return in response to notice u/s 153C of the Act on 10/04/2017 for the A.Y. 2012-13 declaring Nil income. We find that the ld AO had mentioned in the assessment order that parallel books of accounts maintained by the assessee evidenced booking of expenses in the form of cheque payment and receiving back cash for the same. The ld AO even tabulated year wise inflation of expenses where cheque payments were made and cash was received back as under:-
Sr.No. AY Amount 1 2010-11 86,33,500 2 2011-12 51,50,000 3 2012-13 64,35,000 4 2013-14 57,42,679 3.1. The inflation of expenses for the A.Y. 2012-13 was accepted by the assessee group in principle subject to the actual claim of expenses in the M/s. Ahuja Housing Projects P. Ltd., & M/s. Ahuja Properties sum of Rs 28,76,106/-. In other words, it was pointed out that the actual expenses is only Rs 28,76,106/- and not Rs 64,35,000/-. We find that the inflation of expenses for each of the aforesaid Asst Years has been accepted by the assessee group concerns before the Hon’ble Income Tax Settlement Commission wherein 12% of the inflated expenditure has been offered by them as income. We find that the ld AO had duly recorded the fact that all the seized documents had been duly handed over to the assessee prior to the completion of assessment and that the assessee group had accepted the whole data found from the pen drive before the Hon’ble Income Tax Settlement Commission. Hence it was stated by the ld AO that part of the same data cannot be denied by the assessee company to its own advantage. We find that the ld AO had sought to add a sum of Rs 64,35,000/- towards inflation of expenses for the A.Y. 2012-13 u/s 68 of the Act.
3.2. We find that the assessee had submitted that during the year under consideration, it had earned revenue of Rs 5,11,461/- and no operational income is earned since there was no project under construction and no contract work received. Against this revenue, the assessee had incurred total expenses of Rs 28,76,106/- including depreciation of Rs 1,58,670/- and has offered net loss of Rs 23,64,645/-. It was also specifically brought to the notice of the ld. CITA that the Income Tax Settlement Commission had accepted the working of estimating income at the rate of 12% in respect of inflation of expenses in respect of assessee group concerns emanating out of the same search vide ITSC order dated 28/06/2018. The ld CITA did not heed to these contentions of the assessee and held that since no project was carried out by the assessee during the year under consideration, there is no need to incurred development contract expenses of Rs 14,83,323/-; that in order to M/s. Ahuja Housing Projects P. Ltd., & M/s. Ahuja Properties maintain the corporate structure of the assessee, the incurrence of business expenses of Rs 2,00,000/- would suffice. Accordingly, the ld CITA allowed a sum of Rs 2,00,000/- and directed the ld AO to disallow the remaining expenses of Rs 26,76,106/-. Aggrieved by this direction, the assessee is in appeal before us.
3.3. We find the facts prevailing in assessee’s case and facts prevailing in assessee’s group cases who had preferred application before the Hon’ble Income Tax Settlement Commission are identical. There is no dispute on this aspect. It is not in dispute that assessee had resorted to inflation of expenses by making certain cheque payments and receiving back cash in return. It is not in dispute that the said cash had already also been utilised for the purpose of meeting business related expenses by the assessee. In t his background, what is to be taxed is only the left over portion of the cash remaining with the assessee on this subject mentioned transaction, being the profit element, which has been already accepted by the Income Tax Settlement Commission at 12% vide its order dated 28/06/2018 in assessee’s group company cases. We hold that the lower authorities ought to have followed the same in view of identical facts in the assessee herein also. Accordingly, we direct the ld AO to make an addition @ 12% of inflation of expenses of Rs 28,76,106/- for the relevant Asst Year in line with the direction of the Income Tax Settlement Commission in assessee’s group company cases.
3.4. We also find that similar view was taken by the co-ordinate bench of this tribunal in assessee’s group company cases emanating out of the same search on identical facts and circumstances in the case of Bhalchandra Trading P Ltd vs DCIT in & 2978/Mum/2019 for A.Y.s 2013-14 & 2014-15 respectively dated 25/02/2021 and also in M/s. Ahuja Housing Projects P. Ltd., & M/s. Ahuja Properties assessee’s own case in for the A.Ys. 2009-10 to 2011-12 respectively dated 14/07/2021.
3.5. In view of our aforesaid observations and respectfully following the aforesaid judicial precedents, the grounds raised by the assessee are partly allowed.
In the result, the appeal of the assessee (Ahuja Housing Projects P Ltd) in A.Y. 2012-13 is partly allowed. – Asst Year 2013-14 – Assessee Appeal
We find that the facts and the nature of addition made for the A.Y. 2013-14 are exactly identical with the facts prevailing in A.Y. 2012-13. In this year, the ld AO had made an addition of Rs 57,42,679/- u/s 68 of the Act on account of inflation of expenses , ignoring the fact that the actual expenses involved for the year is only Rs 11,44,080/-. We find that the ld CITA had allowed Rs 2,00,000/- as genuine business expenses for maintaining the corporate structure and directed the ld AO to disallow the remaining expenses of Rs 9,44,080/-. Aggrieved by this direction, the assessee had preferred an appeal before us. Since this issue is already adjudicated by us in A.Y. 2012-13 supra, the decision rendered thereon would apply with equal force for this A.Y. also. Accordingly, we direct the ld AO to make an addition @ 12% of inflation of expenses of Rs 11,44,080/- for the relevant Asst Year in line with the direction of the Hon’ble Income Tax Settlement Commission in assessee’s group company cases.
M/s. Ahuja Housing Projects P. Ltd., & M/s. Ahuja Properties
In the result, the appeal of the assessee (Ahuja Housing Projects P Ltd) in for the A.Y. 2013-14 is partly allowed.
M/s Ahuja Properties - – Asst Year 2014-15 – Assessee Appeal 7. The first identical issue to be decided is as to whether the ld. CIT(A) was justified in confirming the addition of Rs 7,84,932/- as income from inflation of expenses in the facts and circumstances of the case for the A.Y. 2014-15.
We have heard the rival submissions and perused the materials available on record. We find that the search operation u/s 132 of the Act was conducted in the Ahuja group of cases on 25/06/2015 and certain loose papers and digital forms were found and seized. Pursuant to the said search, the assessee was issued notice u/s 153A of the Act for the A.Y. 2014-15 and duly served upon the assessee. The assessee then filed a return in response to notice u/s 153A of the Act on 28/09/2016 for the A.Y. 2014-15 declaring income of Rs 59,62,783/- being the income declared in the original return of income filed on 25/11/2014. We find that the ld AO had mentioned in the assessment order that parallel books of accounts maintained by the assessee evidenced booking of expenses in the form of cheque payment and receiving back cash for the same. This inflation of expenses was determined by the ld AO at Rs 7,84,932/-. We find that the ld AO had observed in page 4 of his order that this figure is reflected in the seized material that cheque of Rs 7,84,932/ -was received back in lieu of which cash of Rs 7,84,932/- was paid by the assessee company (emphasis supplied by us). We find that the assessee company had categorically denied the transaction of inflation of expenses before the ld AO for the M/s. Ahuja Housing Projects P. Ltd., & M/s. Ahuja Properties year under consideration. The ld AO however did not heed to the contentions of the assessee and proceeded to treat the cash payment of Rs 7,84,932/- u/s 69 of the Act in the assessment on the ground that the source for payment of Rs 7,84,932/- was not explained by the assessee. 8.1. Before the ld CITA, the assessee had specifically raised an objection that the ld AO had stated that the sum of Rs 7,84,932/- has been credited in the books of assessee company by cheque. It was submitted that the assessee company is engaged in the business of financing and that no such entry for cheque receipt of Rs 7,84,932/- could be found from its books nor any such expenses is found to be claimed in the books for the said sum. It was also submitted that it is not known as to how and from where the ld AO had determined the amount of Rs 7,84,932/-. In any case, even according to ld.AO , it was not inflation of expenses and only inflation of income and as far as alleged payment of cash for the same is concerned, there is no dispute that the assessee group has been maintaining parallel books of accounts and the alleged source of cash payment gets easily explained by the availability of cash balance in the parallel books of accounts. The entries in the parallel books of accounts have been duly offered to tax by some companies of the group before the Hon’ble Income Tax Settlement Commission and by some companies before the respective assessing officers. Accordingly, it was pleaded that the addition made u/s 69 of the Act is unwarranted. We find that the ld CITA had simply brushed aside these contentions of the assessee and confirmed the addition by mere surmise and conjecture. Aggrieved by this, the assessee is in appeal before us.
8.2. At the outset, we find that the main grievance of the assessee seems to be that it had not received any cheque for Rs 7,84,932/- and the same is not to be seen in its regular books of accounts. We find that both the M/s. Ahuja Housing Projects P. Ltd., & M/s. Ahuja Properties ld CITA had observed in para 4.3. of her order that the details of cheque receipt of Rs 7,84,932/- has been furnished by the ld AO to the assessee. This is factually incorrect as the assessee had specifically raised an objection in writing before the ld CITA that it is not known from where the ld AO had taken the figure of Rs 7,84,932/- alleging the same to be receipt of cheque. The objections of the assessee before the ld CITA had not even been met by the ld CITA with specific reference to any seized material pointing out the receipt of Rs 7,84,932/- by cheque by the assessee. Both the ld AO as well as the ld CITA had not given any seized document reference to prove the fact that this assessee before us had received a cheque for Rs 7,84,932/-. In these facts and circumstances, the version of the assessee deserves to be believed that it had not received any sum of Rs 7,84,932/- by cheque. In any case, the case of the revenue is only that the assessee had received cheque for Rs 7,84,932/- and for which the assessee had in turn paid cash from its unexplained sources. It is not in dispute that there is abundance of cash balance in the assessee group reflected in the parallel books of accounts which were subject matter of seizure in the course of search and huge addition on peak credit basis of Rs 26 crores was indeed offered by the group. Hence in any case, the meagre alleged cash payment of Rs 7,84,932/- stands explained by the said income itself. Hence there is no need to make any addition on account of unexplained cash u/s 69 of the Act in the instant case. Accordingly, the grounds raised by the assessee are allowed.
In the result, the appeal of the assessee (i.e M/s Ahuja Properties) in for the A.Y. 2014-15 is allowed.
M/s. Ahuja Housing Projects P. Ltd., & M/s. Ahuja Properties
TO SUM UP ITA No. A.Y. Appeal by Result 2975/Mum/2019 2012-13 Ahuja Housing Projects Partly Allowed 2976/Mum/2019 2013-14 Ahuja Housing Projects Partly Allowed 2983/Mum/2019 2014-15 Ahuja Properties Allowed
Order pronounced on 08/09/2021 by way of proper mentioning in the notice board.