ITO, GURGAON vs. M/S KEC-ASIAKOM UB (JV), GURGAON

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ITA 2326/DEL/2016Status: DisposedITAT Delhi21 November 2016AY 2011-124 pages

In favour of the assessee: the Revenue's appeal was dismissed. From the AI summary of this appeal.

AI SummaryDismissed

What did the Tribunal hold?

The Tribunal held that Section 40A(2)(b) of the Income-tax Act deals with disallowance of expenditure, not with the estimation of income. Therefore, the AO's action of making an addition to income under this section was incorrect.

What were the facts?

The assessee, a joint venture, sub-contracted a project to one of its partners. The Assessing Officer (AO) made an addition on the grounds that the assessee should have earned income from this sub-contracting, not just incurred expenses.

What were the issues?

Whether Section 40A(2)(b) can be invoked to estimate and add notional income to the assessee's total income.

Which sections of the Income-tax Act were involved?

Section 40A(2)(b)

AI-generated summary — verify with the full judgment below

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Income Tax Appellate Tribunal, DELHI BENCHES : SMC : NEW DELHI

Before: SHRI R.S. SYAL

For Appellant: Shri Prakash Sinha, Advocate
Hearing: 21.11.2016Pronounced: 21.11.2016

Date of Hearing : 21.11.2016 Date of Pronouncement : 21.11.2016 ORDER This appeal by the assessee relating to the assessment year 2011- 12 arises out of the order passed by the CIT (Appeals) on 16.02.2016 deleting the addition of Rs.48,20,118/- made by the AO u/s 40A(2)(b) of the Income-tax Act, 1961 (hereinafter also called ‘the Act’).

2.

Briefly stated, the facts of the case are that the assessee is a joint venture with the following three partners as joint ventures:-

i) KEC International Limited – 60 percent ii) Universal Construction Company – 25 percent iii) Unique Builders – 15 percent.

3.

The assessee received a contract worth Rs.56,96,05,620/- from Rail Vikas Nigam Limited (RVNL). This contract was sub-contracted to M/s KEC International Limited (KEC), having 60% share in joint venture in the assessee itself, for a sum of Rs.56,88,08,172/-. The AO held that the assessee ought to have earned income from such sub- contracting instead of giving it as such. He estimated income @ 4% of the contract value and made addition for the differential amount of Rs.2,27,84,225/- u/s 40A(2)(b) of the Act. The ld.CIT(A), relying on the judgment of the Hon’ble Delhi High Court in the case CIT vs. Oriental Structural Engineers Pvt. Ltd. (2015) 374 ITR 35 (Del), deleted the addition. The Revenue is aggrieved against such deletion.

4.

I have heard the ld. AR and perused the relevant material on record. None is present on behalf of the Revenue. In fact, there is no one to attend the proceedings from the side of the Revenue in all the cases fixed before the Bench today. The ld. AR insisted that the appeal be disposed of. I am agreeable with the contention of the ld. AR and, accordingly, proceeding to dispose of the instant appeal ex parte qua the Revenue.

5.

It is noticed that the AO made disallowance u/s 40A(2)(b) of the Act by opining that the assessee should have earned income from sub- contracting. At this stage, it is relevant to note the prescription of the relevant part of Section 40A(2), which is as under :-

`40A(2)(a) Where the assessee incurs any expenditure in respect of which payment has been or is to be made to any person referred to in clause (b) of this sub-section, and the Assessing Officer is of opinion that such expenditure is excessive or unreasonable having regard to the fair market value of the goods, services or facilities for which the payment is made or the legitimate needs of the business or profession of the assessee or the benefit derived by or accruing to him therefrom, so much of the expenditure as is so considered by him to be excessive or unreasonable shall not be allowed as a deduction.’

6.

On going through the mandate of the above provision, it is clear that the disallowance under this section is made in respect of the expenses incurred or payments made which are not deductible. This section has no application to income aspect of the assessee. As the AO has made disallowance u/s 40A(2)(b) in respect of income which the assessee in his opinion ought to have earned rather than certain expenses incurred, I am of the considered opinion that the provisions of this section are not attracted. I, therefore, uphold the impugned order on this score deleting the disallowance.

7.

In the result, the appeal of the Revenue is dismissed.

The order pronounced in the open court on 21.11.2016.

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