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Income Tax Appellate Tribunal, “H”
Before: HON’BLE SH. G. S. PANNU, AM & HON’BLE SH. SANDEEP GOSAIN, JM
Kidderpore Holdings Ltd. ITO 1(2)(2) 527, AayakarBhavan, 216, Shah &NaharIndl बनाम/ Estate. Dr, E Moses Rd, M.K. Road, Vs. Worli, Mumbai Mumbai-400 020 Pin- "थायीलेखासं./जीआइआरसं./PAN No. AABCK0790M (अपीलाथ"/Appellant) (""थ" / Respondent) : अपीलाथ"कीओरसे/ Appellant by : Shri M. C. Omi Ningshen, DR ""थ"कीओरसे/Respondentby : ShriVijay Mehta, AR सुनवाईकीतारीख/ : 28.05.2018 Date of Hearing घोषणाकीतारीख / : 23.08.2018 Date of Pronouncement आदेश / O R D E R
Per Sandeep Gosain, Judicial Member:
The present Appeal filed by the revenueis against the order of Ld. CIT (Appeal) – 2, Mumbai dated 30.10.15 for AY 2012- 13 on the grounds mentioned herein below:-
1. "on the facts and in the circumstances of the case and in law, the Ld.CIT(A) has erred in not appreciating the fact that the assessee is engaged in the business of land development and construction and has constructed and sold commercial premises during the year under consideration."
2. "On the facts and in the circumstances of the case and in law, the Ld. CIT(A) was correct in not appreciating the fact that the assessee shows in the Balance Sheet, the construction expenditure incurred as the Capital Work in Progress."
"on the facts and in the circumstances of the case and in law, the Ld.CIT(A) has erred in not appreciating the fact that the assessee cannot escape its liability from offering its profits for taxation just because it has recorded its business activity in its books of account under different nomenclature."
4. "On the facts and in the circumstances of the case and in law, the Ld.CIT(A) has erred in not appreciating the fact that the assessee company had made major changes in the Articles of Association by attaching the space in building to be sold with the shares of the company, and the action on the part of Kidderpore Holdings Ltd. the assessee company is ultra vires of the Company's Act, 1956."
"On the facts and in the circumstances of the case and in law, the Ld.CIT(A) has erred in holding that taxing the income in the hands of the assessee would result in double taxation, when the Assessing Officer had established that the arrangement between Shreeniwas Cotton Mills Ltd. and the assessee was without any consideration and a sham arrangement, merely to enrich Shreeniwas Cotton Mills Ltd. at the cost of the assessee."
"On the facts and in the circumstances of the case and in law, the Ld.CIT(A) has erred in directing the Assessing Officer to delete the addition of Rs. 2,47,56,227/- on account of income from sale of LodhaSupremus Building without appreciating the fact that as per AIR information during the year under consideration the assessee company has sold units worth Rs. 41,63,59,354/- from which the assessee earned income of Rs. 2,47,56,227/-."
The appellant craves leave to add to, amend or withdraw the aforesaid grounds ofappeal.
Kidderpore Holdings Ltd.
The brief facts of the case are thatthe assessee is engaged in the business of land development and construction of real estate properties. The return of income for the year under consideration was filed on 29.09.12 declaring total loss at Rs. 1,52,974/-. Later on, the case was selected for scrutiny and after serving statutory notices and seeking reply of the assessee, assessment order u/s. 143(3) of the I.T. Act, 1961 was passed by the AO thereby making additions on account of income from sale of LodhaSupremus building and in this way the total income of the assessee was computed.
Aggrieved by the order of AO, assessee preferred appeal before Ld. CIT(A) and Ld. CIT(A) after considering the case of both the parties,partly allowed the appeal of the assessee.
Now before us, the revenue has preferred the present appeal by raising the above grounds.
Ground No. 1 to 6 3. These grounds raised by the revenuerelates to challenging the order of Ld. CIT(A)in directing the Assessing Officer to delete the addition of Rs. 2,47,56,227/- on account of income Kidderpore Holdings Ltd. from sale of LodhaSupremus Building, therefore we thought it fit to dispose of the same by this common order.
We have heard counsels for both the parties at length and we have also perused the material placed on record, judgment cited by both the parties as well as the orders passed by revenue authorities.
Before we decide the merits of the case, it is necessary to evaluate the orders passed by Ld. CIT(A). The Ld. CIT(A) has dealt with the above grounds raised by the revenue in para no. 3.1 to 3.11.4ofitsorder. The operative portion of the order of Ld. CIT(A) is contained in para no. 3.11.1 to 3.11.4 of its order and the same is reproduced below:-
Decision 3.11.1. I have gone through the issue, the appellant’s submission and paper book filed. The AR’s emphasized submission was that the income taxed by the AO in the appellant’s hand is already assessed and taxed in the hand of SNCML hence taxing the same again in the hand of the Appellant will result into double taxation of the said income.
Kidderpore Holdings Ltd. 3.11.2 The Appellant filed the complete set of audited financialstatement and order passed by ITSC u/s 245D (4) of the I T Act vide order vide S A No MH/MUCC-4/118 to 159/2012-13/IT dated 28 11 2014 The facts emerging from the audited financial statement and order of the ITSC are stated in following paragraphs (i) It is seen from the Balance sheet that the own funds of the assessee is Rs. 71,80,949/-. (ii) In the Balance sheet at liability side, the Appellant has shown "Contribution from Shareholder" (notes 3) at Rs. 57,82,28,767/- and at assets side the same amount is shown as "Capital Work-in-Progress" (note 7), which means that the work in progress has been carried out through the funds of the shareholders (i.e. SNCML) (iii) It was also seen from note 6 of the balance sheet that the Appellant has shown an amount 32,59,97,012/- as "Other Current Liabilities" and at the assets side at 13 under the head "Other Current Assets" the assessee has shown the amount of Rs. 32,81,92,677/- as "Contribution receivable from Shareholder", which mean that the liabilities of the Appellant are met by the funds received from the shareholders (i.e. SNCML) (iv) It was observed from the ITSC's order that 42 applicants case belonging to Lodha Group has been disposed off by the ITSC as shown in index of the order Kidderpore Holdings Ltd. passed u/s 245D(4) of the I.T. Act which at serial number 14 includes SNCML as applicant before the ITSC (page 2 of ITSC's order). (v) These 42 applicants are further divided into three categoriesbeing A, B and C Companies with high end projects are categorized as "A", companies with potential projects are categorized as "B" and holding, finance and infancy companies are categorized as "C" It was seen from the ITSC's order that SNCML was categorized in the list of "A" being company having projects (vi) At paragraph 11 1 on page 19 and 20 of the ITSC's order, they have mentioned the name of the applicant, projects developed by them and nature of project (i.e. residential or commercial). In the said list the name of SNCML is also mentioned at serial number 14 and details of the projects developed by the SNCML are given as under: Name of the Project Nature of project Applicant ShreeniwasCotton Supermus Commercial Mills Pvt. Ltd World crest High end residential World crest High end residential
(vii) At paragraph 13.1 on page 23 and 24 of the ITSC's order, they have stated the facts of project wise car parking offered by the various Applicant. In the said list, at serial number 16 the name of SNCML is mentioned wherein it has disclosed the car parking received from the project World crest and World One. The facts categorically stated by the ITSC is that the applicants is not in receipts of car parking money in case of commercial projects is recorded at paragraph 13.3 and 13.1 of ITSC's order. Since, LodhaSupremus is a commercial project, no car parking has been offered on this project. (viii) While dealing with the issue of On money in paragraph 14 of the ITSC's order, the Hon'ble ITSC, at sub-para 14 3, has stated the facts explained by the applicants that it has not charged any on money in respect of the commercial projects However, an amount ofRs. 1 Crore has been charged as on-money in respect of one of their commercial project Lodha. (ix) At paragraph 17.5 on page 37 and 38 of the ITSC's order, they have determined the project wise on money in cases of the various Applicants. In the said list, at serial number "B" under the head commercial project the name of SNCML is mentioned wherein the on- money in its case has been determined at Rs.
Kidderpore Holdings Ltd. 3,27,20,370/-which is also taxed in the hand of SNCML (refer page 14 of annexure of ITSC's order). (x) Finally, at paragraph 19.8 at page 44 of the ITSC's order, they have given a finding that 22% of on-money and car car-paking received shall be taxed as income of the Applicants which interalia includes SNCML. 3.11.3 The AR has scrutinised the order of the ITSC and above factshave been brought to my attention alongwith the disclosure made in the financial statement. In the light of above facts as recorded by the ITSC I have no hesitation in holding that the project "LodhaSupremus" is developed by the SNCML. All revenue pertaining to "LodhaSupremus" is recorded in the books of SNCML. Moreover, the receipts of on- money is also considered in the hand of the SNCML in the assessment year 201112. In the assessment year 2012-13, no on-money or car parking has been taxed in the hand of the Appellant. At page 14 of the annexure's to ITSC's order, they have worked out the income of the SNCML pursuant to settlement commission which are as under:
COMPUTATION OF INCOME AND TAX Shreeniwas Cotton Mills Amount (AY 2012- Limited - PAN: AAAIC9416R 13) Income offered in SOF 36,26,97,944/- Kidderpore Holdings Ltd. Addl income on account of 77,52,937/- foreign expenses Total 37,04,50,881/- Less: Reduction in Brought 15,98,17,321/- forward losses Taxable income 53,02,68,202/- Tax on total income 17,20,45,518/- Interest u/s 234A, 234B, 234C 2,45,15,795/- Tax liability after interest 19,65,61,314/- Less: Prepaid taxes 16,05,02,088/- Tax liability 3,60,59,226/- 3.11.4. In view of the above facts in the present case, it is clear that the assessment year 2012-13 in the case of SNCML was covered in the proceeding before the ITSC. The ITSC has already taxed the revenue from the project "LodhaSupremus" in the hand of SNCML as evident from the discussion in above paragraph. Thus, I am of the considered view that taxing the same income again in the hand of the Appellant will result into double taxation of the same income which is not permissible in view of the settled principle. I also find force in the submission of the AR that the Appellant was used as a SPV by SNCML for construction of LodhaSupremus which is more like a co-operative society carrying out the work for and on Kidderpore Holdings Ltd. behalf of its members out of the cost met by them. Therefore, the transactions entered into between the SNCML and Appellant are not sham transaction as alleged by the AO. Under such circumstances no profit could arise in the hand of SPV. Thus, I am of the view that the addition of profit made in the hand of the Appellant is unjustified; therefore, the addition made by the AO is deleted. These grounds of appeal are allowed.
It was observed from the records that the Appellant Company neither has resources nor the manpower and expertise to carry out theconstruction activity. For the construction of "LodhaSupremus" it hasmerely acted as a SPV for construction with the funds provided by its shareholders and the land owned by them Moreover, the occupation. right of the premises is linked with the shares of the Appellant which is admittedly held by the SNCML (ie its parent company) The Appellant even has noright to sell its premises As stated above, the Appellant has no employee to look after its business activity as there is no cost debited in the-financial statement on account of salary. However, the Appellant has claimed the loss of Rs. 1,52,974/, in. the return of income. As stated in detail in above stated paragraph, the Appellant Company has not done any activity except construction on behalf of Kidderpore Holdings Ltd. its shareholders. As held above, the Appellant has acted merely as a SPV for the construction of "LodhaSupremus" out of funds provided by the shareholders. It has not recorded any revenue in its audited financial statement as all the revenue pertaining to work carried out by the Appellant are recorded in the books of shareholders which is already taxed in the case of the SNCML by the ITSC; thus, under the circumstances, the Appellant is not allowed to claim the expenses in absence of any revenue offered by it. Therefore, the Appellants claim of losses for Rs. 1,52,974/- is disallowed.