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Facts
The assessee, a Limited Liability Partnership, claimed expenses for land leveling and road development. The Assessing Officer (AO) disallowed 50% of these expenses on the grounds that payments were made in cash to laborers whose identities could not be established, deeming the expenses unverifiable.
Held
The Tribunal held that the disallowance made by the AO was ad-hoc and lacked cogent reasoning. It noted that the assessee had provided bills, vouchers, and labor registers, and that cash payments to casual laborers were common practice. The Tribunal found no specific defects in the vouchers or evidence of non-genuine expenditure, and thus, set aside the disallowance.
Key Issues
Whether a 50% ad-hoc disallowance of land leveling and road development expenses is justified solely based on cash payments to laborers with unverified identities, without pointing out specific defects in supporting documents.
Sections Cited
143(2), 145, 145(3), 40A(3)
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Income Tax Appellate Tribunal, JAIPUR BENCHES,”B” JAIPUR
Before: DR. S. SEETHALAKSHMI, JM & SHRI RATHOD KAMLESH JAYANTBHAI, AM
fu/kZkfjrh dh vksj ls@ Assessee by : Shri Arpit Vijay, C.A. jktLo dh vksj ls@ Revenue by : Shri P.P. Meena, CIT a lquokbZ dh rkjh[k@ Date of Hearing 05/02/2025 mn?kks"k.kk dh rkjh[k@Date of Pronouncement : 29/04/2025 vkns'k@ ORDER PER: DR. S. SEETHALAKSHMI, J.M.
This is an appeal filed by the assessee against the order of ld. Addl/JCIT(A)- 5, Mumbai dated 18.06.2024 passed under section 250 of the I.T. Act, 1961, for the assessment year 2016-17. 2. The assessee has raised the following grounds of appeal :-
1. Under the facts and circumstances of the case the ld. CIT (A) is not justified in confirming the action and finding of the ld. AO regarding making disallowance of50 percent of the Land Leveling and Road Development Expenses i.e. Rs. 20,62,500/- on ad-hoc basis.
Shubham Landcon Liability Partnership, Jaipur. 2. That the appellant craves the right to add, delete, amend or abandon any grounds of appeal either before or at the time of hearing of appeal. Therefore, is humbly prayed to delete the relevant disallowances/addition made to the returned income.”
3. The brief facts of the case are that the assessee is a Limited Liability Partnership (LLP) derives income from Business and Profession. The assessee filed its return of income on 15.10.2016 declaring a total income of Rs. 5,17,18,650/- for the year under consideration. The case of the assessee was selected under limited scrutiny through CASS. Notice under section 143(2) was issued on 14.07.2017, which was duly served upon the assessee. In response to the statutory notices issued during the proceedings, the assessee filed reply and submitted necessary details and explanation called from time to time. The assessee company has shown income from sale of flats during the year. The case was selected for limited scrutiny on the issue of Whether income from real estate business has been correctly offered for tax and whether sundry creditors are genuine. On being asked to furnish the details pertaining to the issue, the assessee furnished the same. Based on the submission and factual position as per record, the AO noted that the assessee company has claimed to have entered into an agreement with Royal Living Homes Pvt. Ltd. in the year 2013 for development of land and construction of a multistory residential building. As per the agreement, the appellant LLP is the owner of the land and is liable to receive Shubham Landcon Liability Partnership, Jaipur. 38.25% from the sale consideration, as its share. The responsibility of development of the land and construction was to be borne by Royal Living Homes Pvt. Ltd. The AO further noted that the assessee claimed to have incurred Rs. 41,25,000/- on account of improvement of the said land. The assessee entity was asked to justify as to why such expenses have been claimed when the responsibility of development was to be borne by the developer itself. The assessee then furnished a letter from the developer dated 05.04.2015 wherein the developer had demanded that the construction of the road was to be done by the appellant LLP, which condition was accepted by the appellant .The amount so spend was taken as cost of the land of the appellant out of which 24.29% (being percentage of the stock sold during the year under consideration) has been taken as cost of proportionate share of stock sold during the year under consideration and rest 75.71% has been taken as part of closing stock as at end of the relevant year. The assessee was asked to produce proofs of the expenses of Rs. 41,25,000/- claimed to have been incurred by it for construction of road.In compliance, Shri Ashok Sharma, partner of Shubham Landcon LLP, Shri R.B. Vijay A/R and Smt. Preeti Jain accountant of the assessee appeared and produced ledger & bills/vouchers related to Road Development Expenses and Land Leveling and boundary expenses. The AO noted that assessee has produced register with first name and sign or thumb impression of claimed laborers and all payments have been made to the laborers in cash. The Shubham Landcon Liability Partnership, Jaipur. register contains no name or ID proof of the persons. The bills/vouchers of material purchase produced are also seen to be paid in cash.The AO held that since the payments have been made in cash to the persons whose identity cannot be established, the claim of such payments cannot be accepted in totality. The AO, accordingly, framed the assessment by disallowing 50% of the claimed expenses being Rs. 20,62,500/- treating it to be unverifiable and added the same to the total income of the assessee. The AO assessed the total income of the assessee at Rs. 5,37,81,150/- vide his assessment order dated 10.12.2018. The assessee, aggrieved by the order of the AO, filed appeal before the ld. CIT (A). The ld. CIT (A) considered the submissions of the assessee but could not find it acceptable, and dismissed the appeal of the assessee.
4. The assessee has filed the present appeal before us on the ground mentioned hereinabove. At the time of hearing before us, the ld. A/R of the assessee submitted the written submissions as under :- “ Ground No. 1: Under the facts and circumstances of the case the Ld. CIT(A) is not justified in confirming the action and finding of the Ld. AO regarding making disallowance of 50 percent of the Land Leveling and Road Development Expenses i.e. Rs. 20,62,500/- on ad-hoc basis.
The brief facts of the case are that the Appellant has entered into an agreement with Royal Living Homes Private Limited in the year 2013 for development and construction of a multistory residential building.
Shubham Landcon Liability Partnership, Jaipur.
As per the agreement, the appellant is the owner of the land and is liable to receive 38.25 percent from the sales consideration. The responsibility of construction of building was to be borne by Royal Living Homes Private Limited (Developer).
As the developer wanted to start construction on the above land, they faced problem due to absence of road and unlevelled land. Therefore, the developer co insists the partner of the appellant LLP to develop the land to facilitate the Co. to start housing project there. Then by mutual understating they signed letter and consent was made by both parties for the same. (PB No.30).
The Appellant LLP had incurred an amount of Rs. 41,25,000/- on account of Land leveling and Road Development being cost of improvement of land at Gram Sukhiya, Teh: Sanganer.
5. The details of expenses incurred for cost of improvement as mentioned above are as under: S.No. Particulars Amount (in Rs.) 1. Land Leveling & Boundary 22,50,000/- 2. Road Developing Expense 18,75,000/- Total 41,25,000/-
During the course of assessment proceedings, the appellant was asked to produce proof of expenses of Rs. 41,25,000/- which was claimed to have been incurred for construction of road & land leveling.
In response to above, the partner of the appellant LLP alongwith Authorized Representative and Accountant appeared before the Ld. AO and produced complete bills and vouchers on 26/11/2018 to verify the claim of expenses of Rs. 41,25,000/-.
The copy of ledger A/c of Land Leveling & Boundary Expenses of Rs. 22,50,000/- alongwith all the bills, vouchers and labour register were produced before the Ld. AO. (PB No. 39-79). 9. The copy of ledger A/c of Road Developing Expenses of Rs. 18,75,000/- alongwith all the bills, vouchers and labour register were produced before the Ld. AO. (PB No. 80- 107). 10. It is clear from the above that the appellant has submitted/produced complete ledger A/c alongwith all the vouchers, bills and labour register to verify genuineness of the expenses incurred. 11. The Ld. AO has mentioned in the Assessment Order that:
Shubham Landcon Liability Partnership, Jaipur. “It is noted that the entity has produced register with first name and sign or thumb impression of claimed laborers and all the payments have been made in cash. The register contains no name or ID proof of the persons.”
In this regard it is humbly submitted that the workers as mentioned in the labour register were not permanent staff of the appellant. The workers were hired on daily basis for construction work and register was maintained and signature or thumb impression was obtained when cash payment was made to them. All the daily wages workers are generally casual in nature who come from nearby villages/towns in City for work and these workers do not work at same place regularly.
The register maintained by the appellant contains the period of work, name of worker, type of worker, wage rate, payment made and signature or thumb impression of the workers. The appellant has maintained all the necessary details which he could maintain in such type of work.
It is also submitted that the payment to workers were made in cash because these workers does not believe in banking system and does not maintain any bank account. The appellant has sufficient amount of cash in hand out of which above payment were made which were dully verified by the Ld. AO and no discrepancies were noticed by the Ld. AO.
It is further submitted that all the details called for by the Ld. AO during the assessment proceeding were furnished and after the explanations & submissions that were filed during the assessment proceedings, the Ld. AO did not ask for any further information in regard to Land Leveling & Road Development Exp.
The Ld. AO has nowhere disputed the expenses so claimed by the appellant. It is an undisputed fact that the appellant has filed all the necessary bills/vouchers relating to the expenditure claimed in the return. The Ld. AO has made disallowances of 50 percent of the land leveling and road development expenses i.e. Rs. 20,62,500/- on ad- hoc basis.
It is also submitted that Section 145 of the I.T. Act, 1961 provides the mechanism how to compute the income of the assessee. According to sub-clause (i), the income chargeable under the head 'Profits and gains of the business or profession or income from other sources' shall be computed in accordance with the method of accountancy employed by an assessee regularly subject to sub-section (2) of section 145. Sub- section (2) provides that the Central Government may notify in the Official Gazette from time to time the accounting standard required to be followed by any class of assessee in respect of any class of income. Thus, it indicates that income has to be computed in accordance with the method of accountancy followed by an assessee, i.e., cash or mercantile. Such method has to be followed keeping in view the accounting standard notified by the Central Government from time to time. Sub-clause (3) provides a situation, i.e. if the Assessing Officer is unable to deduce the true income on the basis Shubham Landcon Liability Partnership, Jaipur. of method of accountancy followed by an assessee then he can reject the book results and assess the income according to his estimate or according to his best judgment 18. The Assessing Officer in that case is required to point out the defects in the accounts of appellant and sought explanation of the appellant qua those defects. If the appellant failed to explain the defects and on the basis of the book results, income cannot be determined, then Assessing Officer would compute the income according to his estimation keeping in view the guiding factor for estimating such income.
The Ld. AO has not discussed the details of expenses and how appellant fail to prove the genuineness of the expenses. The scheme of Act does not authorize Assessing Officer to make a disallowance according to his wishes, rather it provides that he should first point out the defects in the accounts of the appellant. In the finding extracted above it nowhere reveals what was the total amount of expenditure claimed by the appellant, which specific vouchers was not in accordance with law. In a just sweeping statement, the Ld. AO observed that on verification, some of the expenses were found to be unverifiable, but what were those expenses, he should make out in the assessment order, only then he can disallow them.
It is further more submitted that the disallowance cannot be made on the ground that payments were made in cash. No evidence is collected to suggest that payments were not genuine.
The genuineness of Cash-in-hand was also verified by the Ld. AO and the appellant had sufficient amount of cash in hand out of which the above expenses were made.
The Appellant is maintaining day to day books of accounts. The same are subject to tax audit. The sales and purchases of the appellant are duly supported by the bills and vouchers. No expense in cash has been incurred in violation of the provisions of section 40A(3) of the Act. In running business, there is always a need to incur some expenses in cash and it does not entitle the Ld. AO to take an adverse view regarding the declared profits.
The ld. Assessing Officer has not pointed out any specific defect in the vouchers/bills. There is also no finding that any expenditure was not found to be genuine or not related to the business. Thus, disallowance is purely on ad-hoc basis. It is a settled law that addition based upon surmises and conjectures cannot be sustained.
It is further more submitted thatthe AO has not rejected the books of the appellant by invoking provision of section 145(3) of the Income Tax Act, 1961.
The Delhi Bench-C of Hon’ble ITAT in the case of ACIT v. Ganpati Enterprises Ltd. [2013] 32 taxmann.com 262 (Delhi - Trib.) has held that: “In our opinion the Scheme of the Act does not authorize the Assessing Officer to make a disallowance according to his wishes, rather it provide that he should first point out the defects in the accounts of the assessee. In the finding extracted (Supra) it nowhere reveals what was the total amount of expenditure claimed by the assessee, which specific vouchers was not in Shubham Landcon Liability Partnership, Jaipur. accordance with law. In a just sweeping statement, the ld. AO observed that on verification, some of the expenses were found to be unverifiable, but what were those expenses, he should make out in the assessment order, only then he can disallow them. This is more important when in a row in the last 4-5 years, similar disallowances were made by him but deleted by the ld. CIT (A) as well as ITAT. Therefore, if we weigh the finding of the Assessing Officer extracted (Supra) vis-a-vis the view taken by the ld. CIT (A) which is a higher authority in the pedestal of the hierarchy, the scale would tilt in favour of the ld. first appellate authority, no interfere is called for in the order of ld. CIT (A) on this issue, the first ground of appeal is rejected.” (Pg. No. 1-4 of Compilation of Judgments)
26. The Jaipur Bench-B of Hon’ble ITAT in the case of ACIT v. Ram Kishan Verma 30 taxmann.com 86 (Jaipur - Trib.) has held that: “The disallowance cannot be made on the ground that payments were made in cash. No evidence is collected to suggest that payments were not genuine. The AO could have examined the person who made the payment and verified the vouchers. We feel that the ld. CIT(A) was justified in deleting the disallowance.” (Pg. No. 5-21 of Compilation of Judgments)
27. The Delhi Bench-D of Hon’ble ITAT in the case of ACIT v. Harish Mohini Kathuria [2013] has held that: “The ld. Assessing Officer has not pointed out any specific defect in the vouchers/bills. There is also no finding that any expenditure was not found to be genuine or not related to the business. Thus, disallowance is purely on adhoc basis. It is a settled law that addition based upon surmises and conjectures cannot be sustained.” (Pg. No. 22-28 of Compilation of Judgments)
28. The Raipur Bench of Hon’ble ITAT in the case of Kailas Chand Agrawal v. DCIT [2022] 139 taxmann.com 462 (Raipur - Trib.) has held that: “Para 7.4 We neither could come across any provision in the present Income Tax Statute nor it has been brought to our notice by either parties to dispute, which subscribes vis-à-vis authorises the tax authorities to arrive at this logic of subscribing ad-hoc disallowances. Evidently, there has been no clear findings as to number of vouchers requiring denial of allowances with the amount of expenditure and nature of defects therein or therewith, moreover department could not bring out any deprecative material on record to substantiate its conclusion as logical. We couldn't also see remotely there is any mention of rationale in arriving at the percentile of disallowance in the present case, consequently we find substantial force in the claim of the assessee that devoid of any specific infirmity qua the assessee's claim for deduction of the aforementioned expenditure by the lower tax Shubham Landcon Liability Partnership, Jaipur. authorities, and for the reason, the ad-hoc disallowance carried out in a most arbitrary manner could by no means be held to be justified. Para 7.5 Our aforesaid view is fortified by the judgment of the Hon'ble High Court of Madras in V.C. Arunai Vadivelan v. Asstt. CIT [2021] 128 taxmann.com 195/282 Taxman 90, wherein the lordships has held para 7 as: "Given the nature of the industry in which the assessee operates, we can take judicial notice of the fact that, computer generated vouchers may not always be issued by the transporters unless they are an organization owning a large fleet and If the Assessing Of icer had any doubt with regard to the genuinity of any one of the vouchers produced he could have drawn sample vouchers and called upon the assessee to establish its genuineness. Without doing so, making an adhoc disallowance by not specifically assigning any reason to a voucher or bunch of vouchers is not legally tenable. Para 7.6 Considering the entire conspectus of case, we, do not find favour with the view taken by the lower tax authorities, consequently we vacate the ad-hoc disallowance in its entirety and thereby allow the ground number 2 of the appeal.”(Pg. No. 29-33 of Compilation of Judgments) 29. The Raipur Bench of Hon’ble ITAT in the case of Sheo Bhagwan Goel v. ACIT [2022] 139 taxmann.com 259 (Raipur - Trib.) has held that: “We neither could come across any provision in the present Income Tax Statute, nor it has been brought to our notice by either parties to dispute, which subscribes vis-à-vis authorises the tax authorities to arrive at this logic of subscribing ad-hoc disallowances. Evidently, there has been no clear findings as to number of vouchers requiring denial of allowances with the amount of expenditure and nature of defects therein or therewith, moreover department could not bring out any deprecative material on record to substantiate its conclusion as logical. We couldn't also see remotely there is any mention of rationale in arriving at and applying the percentile of disallowance in the present case, consequently we find substantial force in the claim of the assessee that devoid of any specific infirmity qua the assessee's claim for deduction of the aforementioned expenditure by the lower tax authorities, and for the reason, the ad-hoc disallowance carried out in a most arbitrary manner could by no means be held to be justified. Considering the entire conspectus of case, we, do not find favour with the views lower tax authorities, consequently we set aside the order of Ld. CIT(A) and direct Ld. AO to delete the ad-hoc disallowance in its entirety and allow the ground/s raised.” (Pg. No. 34-37 of Compilation of Judgments) 30. Therefore, after considering the above facts and circumstances of the case and above judicial case laws it is clearly evident that the disallowances of 50 percent of the land leveling and road development expenses i.e. Rs. 20,62,500/- on ad-hoc basis may kindly be deleted.
Shubham Landcon Liability Partnership, Jaipur. Ground No. 2 This Ground is general in nature; therefore, no specific submission has been made. PRAYER It is, therefore, most humbly prayed to delete the relevant disallowance of Rs. 20,62,500/- or reduce percentage of such disallowances or grant any other relief as deemed fit and appropriate in the interest of Justice.”
On the other hand, the ld. DR supported the orders of the Revenue Authorities.
6. We have heard the rival submissions, perused the material on record and gone through the orders of the lower authorities. In this case the sole reason given by the Assessing Officer to make the adhoc disallowance is that payments have been made in cash to the persons whose identity cannot be established, the claim of such payments cannot be accepted in totality. The AO disallowed 50% of the claimed expenses treating it to be unverifiable. The AO has further noted in the assessment order that the entity has produced bills/vouchers along with register with first name and sign or thumb impression of claimed laborers and all the payments have been made in cash. The register contains no name or ID proof of the persons. On the contrary, the assessee submitted that the workers as mentioned in the labour register were hired on daily basis for construction work and in the register maintained, their signature or thumb impression was obtained when cash payment was made to them, the main reason for making cash payment is that they Shubham Landcon Liability Partnership, Jaipur. being illiterate, do not maintain any bank account. Further, the assessee was having sufficient amount of cash in hand out of which above payments were made which were duly verified by the AO and no discrepancies were noticed by the AO. The daily wages workers are generally casual in nature who come from nearby villages/towns in city for work and these workers do not work at same place regularly. The assessee further submitted that the register maintained contains the period of work, name of worker, type of worker, wage rate, payment made and signature or thumb impression of the workers. On perusal of the case file, we find that it is an undisputed fact that the appellant has produced all the necessary bills/vouchers, copy of ledger account related to Road Development Expenses and Land Leveling & boundary expenses and labour register before the AO to verify the genuineness of the expenses incurred. We do not find any mention in the assessment order that the AO has specifically examined the details furnished by the assessee or any specific defect was observed by the ld. AO in any of the content of the labour register except a general comment about non mentioning of identity details of the labourers and the AO has not pointed out any specific defect in the vouchers/bill. There is also no finding that any expenditure was not found to be genuine or not related to the business. In our opinion, the Scheme of the Act does not authorize the AO to make a disallowance according to his wishes, rather it provide that he should first point out the defects in the accounts of the assessee. In Shubham Landcon Liability Partnership, Jaipur. the finding extracted (supra) it nowhere reveals which specific voucher was not in accordance with law. The AO has not brought on record any specific material even though complete details were filed during the course of assessment proceedings. In a just sweeping statement, the AO observed that it is noted that the payments are seen to have been made in cash to persons whose identity cannot be established. Therefore, the claim of such payments cannot be accepted in totality. In view of same, 50% of the claimed expenses being 2062500/- are hereby disallowed as being unverifiable, which is not a correct approach and is not in accordance with law. No evidence was collected to suggest that payments were not genuine. We also take note of the reality that in civil constructions wherever laborers are hired from open market, no proof of identity is provided by such illiterate laborers and even they hesitate to receive payment of wages through banking channel. It is settled law that addition based upon surmises and conjectures cannot be sustained. In support of his contention, the ld. AR placed compilation of judgments as under :-
Sl. No. Particulars Page No. 1. ACIT v. Ganpati Enterprises Ltd. 1-4 (2013) 32 taxmann.com 262 (Delhi – Trib.)
Shubham Landcon Liability Partnership, Jaipur. 2. ACIT v. Ram Kishan Verma 5-21 (2013) 30 taxmann.com 86 (Jaipur – Trib.) 3. ACIT v. Harish Mohini Kathuria 22-28 (2013)
(Delhi – Trib.) 4. Kailash Chand Agrawal v. DCIT 29-33 (2022) 139 taxmann.com 462 (Raipur-Trib.) 5. Sheo Bhagwan Goel v. ACIT 34-37 (2022) 139 taxmann.com 259 (Raipur-Trib.)
The Hon’ble Supreme Court in the case of CIT (Bom.) vs. Walchand& Company Pvt. Ltd. in 65 ITR 381 (SC) held that “ in applying the test of commercial expediency for determining whether an expenditure was wholly and exclusively for business, the expenditure has to be adjudged from the point of view of the businessman and not of revenue. Thus, we find that Assessing Officer has made the disallowance purely on guess work and without cogent reasoning. Under these circumstances, adhoc disallowance cannot be sustained. Accordingly, we do not find any infirmity or illegality in the order of the ld. Commissioner of Income Tax (Appeals) in this regard. Accordingly we confirm the same.” 6.1 We have also noted that the AO has not resorted to the provisions of section 145 (3) of the Income tax Act, 1961 and without applying such provisions the ad hoc disallowance is not permissible.
Shubham Landcon Liability Partnership, Jaipur. 6.2 Considering the entire conspectus of case and the judicial pronouncements, we do not find favour with the views of lower authorities, consequently we set aside the order of ld. CIT (A) and delete the adhoc disallowance in its entirety and allow the ground of the assessee. 7. In the result, appeal of the assessee is allowed.
Order pronounced in the open court on 29/04/2025.