TEXRAJ REALTY PVT.LTD.,,AHMEDABAD vs. THE PR. CIT-4, AHMEDABAD

PER P.M. JAGTAP, VICE-PRESIDENT :

Texraj Realty Pvt Ltd Vs. PCIT AY : 2015-16 2

a) Disallowance of land vacation compensation charges – Rs.2,00,92,889/- b) Disallowance of excess cost of land sold - Rs. 20,67,990/- c) Disallowance of employees benefit expenses - Rs. 20,56,412/- d) Disallowance of purchases - Rs.7,00,45,639/- 3.1 The records of the assessment completed by the Assessing Officer under Section 143(3) of the Act came to be examined by the learned PCIT and on such examination, he was of the view that there were following errors in the assessment made by the Assessing Officer under Section 143(3) of the Act which were prejudicial to the interest of the Revenue:-

“2. On verification of the case records, it is noticed that you had debited a sum of Rs.10,14,45,263/- as 'other expenses' mainly comprising land vacation compensation' charges of Rs.10,00,00,000/-. Such land vacation charges have been paid to M/s. Bosch Rexorth India Ltd. to vacate and hand- over the possession of 40087 sq. mtrs. land of Revenue Survey no.324/1 and 10080 sq. mtrs. of land of Revenue Survey No. 1037 to you alongwith office cum factory erected on the said piece of land with all planted trees, plant &. machinery etc. You had claimed the full expenditure as revenue expenses and charged it to P & L account. Further, it is noticed that you had sold only one plot of land situated at Revenue Survey No.324/1 during the year, however you had claimed the entire expenditure of Rs.10 crore as land vacation charges.

Texraj Realty Pvt Ltd Vs. PCIT AY : 2015-16 3 3. Further, on perusal of registered deed no. AHD-II-ASL/8189 of 2014 dated 27/10/2014 by which such part of land parcel is sold during the F.Y. 2014-15, it can be ascertained that you had sold only open plot of land to the buyer and in whole registered deed there is no mention of any constructed portion being sold off. It is further noticed that the photographs of said property being part of the registered deed make it clear that possession of vacant plot is handed over to the purchaser of the property. Therefore, you had not sold any factory premises, plant and machinery etc. on the plot of land and only open plot of land had been sold. In view of these facts that the full amount of expenditure made as 'compensation expenses for vacation of land' was required to be capitalized and included in the valuation of the closing WIP and mere proportionate disallowance of Rs.2,00,92,889/- was not required to be made, but the balance sum of Rs.7,99,07,111/- (being Rs. 10,00,00,000 - Rs.2,00,92,889) is also required to be disallowed and capitalized as WIP.

4. On perusal of the case records, it is observed that during the F.Y. 2014-15, you had received a sum of Rs.9,05,00,000/- from M/s. Nila Infrastructure Ltd on which you had made TDS @ 1% u/s 194IA amounting to Rs.9,05,000/-. From the perusal of submission made by you, it is observed that such amount of advance had been returned by you and you had not credited the said amount in your P&L A/c. However, in your return of income filed for the assessment year under consideration, you had made claim of full credit of the TDS so deducted which was required to be withdrawn as you had not shown corresponding income in the A. Y. under consideration.”

3.2 Learned PCIT accordingly issued a notice under Section 263 of the Act to the assessee pointing out the above errors and giving the assessee an opportunity to show-cause as to why the order passed by the Assessing Officer under Section 143(3) of the Act should not be revised by treating the same as erroneous and prejudicial to the interest of the Revenue. In reply, the following explanation in writing was offered by the assessee:- i) During the course of scrutiny assessment proceedings for A.Y. 2015-16, the assessee had furnished the required details/information/explanation with supporting documentary evidences on each and every issue raised by the A.O. who, after considering these details and evidences, made certain additions/disallowances after discussion in the body of the assessment

Texraj Realty Pvt Ltd Vs. PCIT AY : 2015-16 4 order. She also assigned the reasons for not accepting the submissions and explanation of the assessee furnished during the course of assessment proceedings. ii) The CIT(A)-8, Ahmedabad had dismissed the appeal filed by the assessee and on appeal filed by the assessee before the Hon'ble ITAT, Ahmedabad, it has been directed to set aside all the issues for reconsideration by the CIT(A)-8, Ahmedabad for fresh adjudication and decision. iii) On the issue of disallowance of the balance sum of Rs.7,99,07,111/- sought for revision u/s 263 of the Act, the assessee has made following submissions:- a) During the previous year 2014-15, the assessee had debited an amount of Rs.10 crores as land vacant compensation charges and in support of this claim, the assessee had filed during the course of assessment proceedings u/s 143(3) of the Act, a copy of notarized agreement dated 08.10.2014 executed with M/s. Bosch Rexroth India Limited to which said land vacant compensation charges were paid. b) M/s. Bosch Rexroth India Limited was enjoying leasehold rights over the land situated at Vinzol at Survey No.324/1 as per lease deed dated 30th July, 1997 for a period of 99 years and it had also made investments in various office-cum-factory premises along with fixtures and machineries within the leased premises and also planted many trees for creating greenery. c) The assessee-company was the sole legal owner of the leased premises since it had purchased the impugned land In the financial year 2007- 08 relevant to A.Y.2008-09. d) The assessee-company informed M/s. Bosch Rexroth India Limited that it was desirous of selling the leased premises to other prospective buyers and it requested this company to vacate the leased premises by terminating the lease agreement and also agreed not to demolish buildings in the leased premises. In consideration thereof, an amount of Rs.10 crores was paid as compensation by the assessee-company to M/s. Bosch Rexroth India Limited as per the terms and conditions stipulated in the said agreement made for vacating and handing over the possession of the impugned land.

Texraj Realty Pvt Ltd Vs. PCIT AY : 2015-16 5 e) Thus, it is clear that the amount of Rs.10 crores paid to M/s, Bosch Rexroth India Limited by the assessee-company for terminating its leasehold rights and handing over the vacant possession of the impugned leasehold and as well as for not demolishing the various constructions standing on the impugned land of Survey No.324/1. f) Since the assessee-company has been in the real estate business, the compensation of Rs.10 crores paid for vacating the impugned land has been debited to the profit & loss account in the accounts for F.Y.2014- 15 as business revenue expenditure. g) The A.O. has also taken note of this fact in para 4.3 of the assessment order stating that:-

"It is very much clear from the agreement between the assesses and M/s. Bosch Rexroth India Limited that land vacant compensation charges of Rs.10,00,00,000/- was for vacating both the lands i.e. Survey No.324/1 at Vinzol and Survey No.1037 at Vatva and not for single land at Survey No.324/1. " h) After observing the above facts, the A.O. had made a part disallowance of Rs.2,00,92,889/- on the basis of total area of both pieces of lands as not allowable and added the same to the total income of the assessee- company. i) In view of the above-mentioned facts, it cannot be held that the A.O. did not inquire into the issue in depth properly. In fact, the AO had raised all the possible queries in connection with the claim of land vacating compensation expenses of Rs.10 crores after obtaining necessary details and explanation with supporting documents from the assessee-company. The A.O. had framed the assessment order u/s 143(3) of the Act wherein explanation furnished by the assessee was not accepted in its entirety and she made the disallowance of Rs.2,02,92,889/-. j) On the above premises, it has been contended by the assessee-company that the action to consider the issue of disallowance of land vacant compensation charges again under, the different context & understanding and consequent initiation of the proceedings u/s 263 of the Act is unjustified and unsustainable in law.”

Texraj Realty Pvt Ltd Vs. PCIT AY : 2015-16 6 3.3 The above explanation offered by the assessee was not found acceptable by the learned PCIT for the following reasons given in his impugned order:-

“1) In the profit & loss account for the financial year ending on 31.03.2015, the assessee-company has credited a sum of Rs.22,50,00,000/- under the head "Revenue from operations" and no other income has been reported. Further, in the immediately preceding year ending on 31.03,2014, there were no such receipts credited in the accounts but only expenses were debited which resulted in trading loss in the books of accounts for the A.Y.2014-15.

2) In the chart of depreciation, the assessee-company has not shown any immovable property either the land or land together with the factory building, plant & machinery etc. and therefore, it is required to be held that the land in question together with the superstructure on the said land was not an asset on which the assessee had claimed the depreciation.

3) In note no. 13 of the accounts, the assessee has shown the opening and closing value of the land at Vatva-Vinzol for Rs.20,44,53,594/- as on 31.03.2015 as against the closing value of Rs.24,08,78,755/- as on 31.03.2014. This shows that the assessee-company has reduced the cost of land by Rs.3,64,25,161/-. This cost is debited under the head "expenses" and sub-head "change in inventories of finished goods". In the immediately preceding year ending on 31.03.2014, there was an addition of Rs.3,94,14,825/- in the inventory of finished goods.

4) The above accounting treatment leads to the conclusion that the assessee- company has accounted the land at Vinzol-Vatva as trading assets and not as capital asset in its books of accounts.

5) In note no. 18 of the accounts, the assessee has debited the amount of Rs.10 crores under the accounting head "Other expenses" as land vacant compensation charges.

6) During the course of assessment proceedings u/s 143(3) of the Act, the assessee has filed the copy of an agreement for vacating and handover executed on 8.10.2014 made on the stamp paper of Rs.1,000/- and duly notarized by one Shri Piyush. V. Panchal, Notary. I have carefully perused the contents of this agreement made between the assessee-

Texraj Realty Pvt Ltd Vs. PCIT AY : 2015-16 7 company and M/s. Bosch Rexroth India Limited. The following main features of the said agreement are noted as under:- a) M/s. Bosch Rexroth India Limited had obtained certain land falling in Survey No.324/1 of Vinzol and Survey No. 1037 of Vatva admeasuring 40087 sq.mtrs. and 10080 sq. mtrs. respectively for the period of 99 years from S.L.M. Maneklal Industries Ltd through a lease agreement dated 30.07.1997 for running of its business. b) This company had thereafter made investments in the form of office cum factory (collectively referred as "building" in the said lease agreement) along with various fixtures and furniture etc. It also planted many trees so as to create greenery and thus increased the value of land structure & building within the leased premises. c) The assessee-company had informed the M/s Bosch Rexroth India Limited that it was the current and legal owner of the leased property and there were no other owners in the leased premises and it was desirous to sale the leased premises to the prospective buyers. d) For getting the vacant possession of the said land with the buildings, the assessee-company would pay compensation for all its investments made by M/s Bosch Rexroth India Limited which raised the land value of the (eased premises. e) On the agreed terms as per this agreement, the assessee-company had paid a compensation amount of Rs. 10,00,00,000/- (Rupees Ten Crores). f) In clause 2 of the said agreement, it has been agreed that the assessee- company would immediately pay the amount of Rs.1,50,00,000/- leaving balance of Rs.8,50,00,000/- to be paid through 12 post dated cheques which would be encashed on 75th day from the effective date i.e. 8th October, 2014.

7) During the course of assessment proceedings, the assessee has filed letter dated 30.11.2017 wherein it has been stated that the land belonging to SLM Maneklal Industries Ltd. was purchased in auction and the cost of the said land has been shown as stock in trade. However, no details and documents have either been called for from the assessee-company and stood verified by the A.O. so as to prove that the assessee-company had become the owner of the said land together with other costs incurred for Texraj Realty Pvt Ltd Vs. PCIT AY : 2015-16 8 construction of roads, common land, compound, land filling, internal compound walls of the developed lots, water pipelines etc.

8) It has been contended by the assessee that it had purchased the land/plot during financial year ending on 31.03.2008. However, no evidences have been found to be called for and examined by the A.O. so as to ascertain the ownership of the land which was purchased by the assessee-company and as to when and how M/s. S.L.M. Maneklal Industries entered into the said transaction as the said land has been claimed to be purchased through an auction held by the Debt Recovery Tribunal of Mumbai. Therefore, the A.O. ought to have called for all the relevant details and documents as the said land was given on lease by M/s. S.L.M. Maneklal Industries as mentioned in the agreement for vacant possession and handing over the said land.”

3.4 For the reasons given above and on perusal of the entire case records, the learned PCIT held that the Assessing Officer ought to have made inquiries on the following specific issues:-

“i) The land in question has been claimed to be owned by the assessee and purchased/acquired in the financial year ending on 31.03.2008 relevant to A.Y.2008-09. However, no documentary evidence has been called for and verified by the A.O. during the course of assessment proceedings for A.Y. 2015-16. ii) It has been mentioned in the agreement that the company M/s Bosch Rexroth India Ltd. had entered into lease agreement dated 30.07.1997 with S.L.M. Maneklal Industries Ltd. However, the A.O, did not call for the copy of this lease agreement so as to verify the terms and conditions of that lease agreement and particularly in a situation when the owner of the leased premises is changed. iii) The A.O. has not inquired into as to how M/s Bosch Rexroth India Ltd continued to be the lessee after the purchase of the said land in the financial year 2007-08 and as to whether fresh lease agreements were made after the purchase of the said land and if so, what was the lease rental as per the said agreement and as to whether the same had been recognized as revenue receipts in the assessment years 2014-15 and earlier years or not?

Texraj Realty Pvt Ltd Vs. PCIT AY : 2015-16 9 iv) Since the land has been purchased in an auction in pursuant to the orders of the Debt Recovery Tribunal passed in the case of M/s. S.L.M. Maneklal Industries Ltd, there should be a mention of occupying the said land premises together with the plant & machinery, super-structure etc. in the order passed by the D.R.T. and therefore, the copy of D.R.T.'s order was also required to be called for and verified by the A.O. which she failed to do. v) The A.O. ought to have called for information u/s 133(6) of the Act so as to ascertain the receipt of the compensation received by M/s Bosch Rexroth India Ltd. and the accounting treatment given in its books of accounts i.e. whether as revenue receipts or capital receipts and the A.O. ought to have intimated the concerned A.O. for taking appropriate action at his end. vi) If the land in question had been taken in possession with super structure thereon, plant & machinery, fixture & furniture etc., the assessee must have incurred the expenses for demolishing the super structure being office and factory shed, discarding of plant & machinery, removing of furniture & fixture and selling the entire debris and obsolete items of furniture, fixture, plant & machinery etc. and have offered the revenue receipts on such disposal. The A.O. has not inquired into this logical issue also.”

3.5 Since the Assessing Officer, according to the learned PCIT, had failed to make necessary inquiries on the above issues which he ought to have done in the facts and circumstances of the case, the order passed by the Assessing Officer under Section 143(3) of the Act was held to be erroneous as well as prejudicial to the interest of the Revenue by the learned PCIT on the issue of assessee’s claim for land vacation compensation charges. The learned PCIT accordingly set aside the order passed by the Assessing Officer under Section 143(3) of the Act dated 18.12.2017 vide his order dated 24.03.2020 passed under Section 263 of the Act with a direction to make the assessment afresh after carrying out thorough inquiries on the issue of the claim of the assessee for deduction on account of land vacation compensation charges. Vide the said order passed under Section 263 of the Texraj Realty Pvt Ltd Vs. PCIT AY : 2015-16 10 Act, the learned PCIT also directed the Assessing Officer to withdraw the credit of TDS claimed by the assessee amounting to Rs.9,05,000/- and allowed in assessment completed under Section 143(3) of the Act with a direction to the Assessing Officer to allow the same in the year when the corresponding income was offered by the assessee to tax after necessary verification. Aggrieved by the order of the learned PCIT passed under Section 263 of the Act, the assessee has preferred this appeal before the Tribunal.

Texraj Realty Pvt Ltd Vs. PCIT AY : 2015-16 11 to vacate the said land and release the leasehold rights for a consideration. He submitted that M/s. Bosch Rexroth India Ltd. accordingly agreed to vacate the land for a consideration of Rs.10 crores and the said vacation charges were claimed as deduction by the assessee for the year under consideration. He submitted that the Assessing Officer, however, duly examined this claim of the assessee and found on such examination that since the assessee had sold only the land at Vinzol admeasuring 40,087 sq. mtrs., he allowed the deduction claimed by the assessee on account of land vacation compensation charges paid to M/s. Bosch Rexroth India Ltd. proportionately to the extent they were pertaining to the land at Vinzol sold by the assessee during the year under consideration admeasuring 40,087 sq. mtrs. and disallowed the balance amount of Rs.2,00,92,889/- which was pertaining to the land at Vatva admeasuring 10,080 sq. mtrs. which was retained by the assessee. He contended that this issue was duly examined by the Assessing Officer and after making the necessary inquires, the claim of the assessee was allowed partly and the balance amount of Rs.2,00,92,889/- was disallowed. He contended that this issue thus was examined by the Assessing Officer by making necessary inquiries and after taking into consideration the details and documents filed by the assessee including the agreement for vacating and handover executed between the assessee and M/s. Bosch Rexroth India Ltd., the claim of the assessee for land vacation compensation charges was allowed partly by the Assessing Officer by applying his mind. He contended that there was thus no error in the order of the Assessing Officer passed under Section 143(3) of the Act, and since a possible and definite view was taken by the Assessing Officer on this issue, the learned PCIT was not justified in revising the order of the Assessing Officer on this issue by exercising his powers under Section 263 of the Act.

Texraj Realty Pvt Ltd Vs. PCIT AY : 2015-16 12 4.1 As regards the TDS credit of Rs.9,05,000/-, the learned Counsel for the assessee admitted that there was an error in the order of the Assessing Officer in allowing credit for the said TDS since the corresponding income was not offered by the assessee in the year under consideration and the learned PCIT is fully justified in directing the Assessing Officer to withdraw the said credit vide his impugned order passed under Section 263 of the Act.

“A. Bosch Rexroth (erstwhile Rexroth Maneklal Industries Limited) by an indenture of lease dated 30th July 1997 (hereinafter referred to as "Lease Agreement") had taken on lease from SLM Maneklal Industries Limited, a company incorporated under Companies Act 1956 having its office at Shafi Manzil, Ashram Road, Ahmedabad 380 009 certain land situated at Vinzol admeasuring 40,087 square meters forming part of Survey no .324/1 and in Vatva admeasuring 10,080 square meters forming part of Survey no. 1037 for a period of 99 years ( hereinafter collectively referred to as “Leased Premises) for running its business.

B. Bosch Rexroth had invested in various office cum factory (hereinafter collectively referred to as "Buildings" and more fully detailed out under Annexure A to this Agreement) buildings along with various fixtures and machines within the Leased Premises in order to enable it to run its business and also planted many trees, created greenery etc. which in turn increased the value of the land structures and buildings within the Leased Premises.

C. Company has represented to Bosch Rexroth that it is the current and sole legal owner of the Leased Premises and there are no other owners in relation to Leased Premises.

D. The Company has informed Bosch Rexroth that it is desirous of selling the Leased Premises to prospective buyers;

E. The Company has further informed Bosch Rexroth that in consideration for Bosch Rexroth handing over of the Leased Premises along with the Buildings therein, Bosch Rexroth shall be compensated for all investments done by it in the Leased Premises to raise the land value of the Leased Premises.

F. At the request of the Company., without prejudice to any of its rights in future, Bosch Rexroth has agreed to vacate the Leased Premises by terminating the Lease Agreement and also agrees not to demolish the Buildings in the Leased Premises in consideration for the compensation to Texraj Realty Pvt Ltd Vs. PCIT AY : 2015-16 15 be paid by the Company as per the terms and conditions contained hereunder.”

6.1 On perusal of the said agreement, the Assessing Officer noted in the assessment order that the compensation of Rs.10 crores was paid by the assessee to M/s. Bosch Rexroth India Ltd. for vacating the land situated at Vinzol bearing Survey No.324/1 admeasuring 40,087 sq. mtrs. and the land situated at Vatva bearing Survey No. 1037 admeasuring 10,080 sq. mtrs. He also gathered from the submissions made by the assessee that it had sold land only at Vinzol admeasuring 40,087 sq. mtrs. while the land at Vatva admeasuring 10,080 sq. mtrs. was retained by the assessee. Since the entire land for which compensation of Rs.10 crores was paid by the assessee to M/s. Bosch Rexroth India Ltd. on account of land vacation compensation charges was not sold by the assessee and only the portion of the said land admeasuring 40,087 sq.mtrs. was sold, the Assessing Officer allowed the claim of the assessee for land vacation compensation charges only to the extent pertained to the land sold. The claim of the assessee for deduction on account of said charges to the extent pertaining to the land at Vatva admeasuring 10,080 sq. mtrs., which was retained by the assessee, was disallowed by the Assessing Officer and accordingly an addition of Rs.2,00,92,889/- was made by him to the total income of the assessee in the assessment completed under Section 143(3) of the Act. Keeping in view this position, we find merit in the contention of the learned Counsel for the assessee that the issue relating to the land vacation compensation charges claimed by the assessee in the year under consideration was duly examined by the Assessing Officer by making the necessary inquiries and after satisfying himself on perusal of the relevant details and documents placed on record by the assessee, the claim of the assessee for land vacation compensation charges was allowed by the Assessing Officer partly by Texraj Realty Pvt Ltd Vs. PCIT AY : 2015-16 16 applying his mind. It is noted that, in reply to the notice issued by the learned PCIT under Section 263 of the Act, a detailed submission was made on behalf of the assessee by pointing out the inquiries made by the Assessing Officer on the issue and the details and documents submitted by it during the course of assessment proceedings. It appears that the learned PCIT, however, overlooked the same and held the order passed by the Assessing Officer under Section 143(3) of the Act on the issue as erroneous and prejudicial to the interest of the Revenue on the ground that the Assessing Officer did not inquire into certain specific issues. In our opinion, these issues pointed out by the learned PCIT in his impugned order were not that material or relevant to examine the claim of the assessee for deduction on account of land vacation compensation charges, and since the factual position which the learned PCIT wanted the Assessing Officer to ascertain by making inquiry was clearly evident from the details and documents already filed by the assessee during the course of assessment proceedings including the agreement for vacating and handover, we are of the view that it is not a case where the Assessing Officer can be said to have passed the order under Section 143(3) of the Act without inquiries or verification which should have been made in the facts and circumstances of the case as envisaged in Explanation 2(a) to Section 263 of the Act. In our opinion, there was thus no error in the order of the Assessing Officer passed under Section 143(3) of the Act on this issue as alleged by the learned PCIT calling for revision under Section 263 of the Act. We accordingly cancel the impugned order passed by the learned PCIT under Section 263 of the Act to the extent it revises the order of the Assessing Officer passed under Section 143(3) of the Act on the issue of assessee’s claim for deduction on account of land vacation compensation charges. We, however, uphold the said order passed under Section 263 of the Act on the issue of the claim of the assessee

Texraj Realty Pvt Ltd Vs. PCIT AY : 2015-16 17 for credit of TDS of Rs.9,05,000/- as the same was wrongly allowed by the Assessing Officer in the assessment order passed under Section 143(3) of the Act as agreed even by the learned Counsel for the assessee at the time of hearing before us.

Order pronounced in the open Court on 15th July, 2022 at Ahmedabad.