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Income Tax Appellate Tribunal, MUMBAI BENCHES “C”, MUMBAI
Before: Shri Joginder Singh & Shri Rajendra
आदेश / O R D E R Per Joginder Singh (Judicial Member) The Revenue as well as the assessee are aggrieved, therefore, appeal has been preferred by the Revenue whereas, the assessee has preferred cross objection against the impugned order dated 12/02/2014 of the First Appellate Authority, Mumbai.
C.O. No.21/Mum/2016 Om Shree Gurukrupa Properties & Developers Pvt. Ltd.
First, we shall take up the appeal of the Revenue, wherein, allowing relief of expenses to the extent of Rs.3,83,09,810/- on ad-hoc basis to 10% has been challenged without any justification more specifically when the assessee could not justify for such claim nor any evidence was filed by the assessee during assessment proceedings. The ld. DR, Shri Ganesh Bare, advanced arguments which are identical to the ground raised by further explaining that the assessee did not establish the nexus between the nature of expenses, claimed by the assessee and more specifically before the ld. Assessing Officer, the assessee admitted that it did not carry out any construction/business activities during the concerned year.
2. On the other hand, Shri Vijay Mehta, along with Shri Anuj Kishnadwala, defended the order of the Ld. Commissioner of Income Tax (Appeal) by contending that ad-hoc addition was made disallowing the expenditure. The crux of the argument is in support of the impugned order.
C.O. No.21/Mum/2016 Om Shree Gurukrupa Properties & Developers Pvt. Ltd.
2.1. We have considered the rival submissions and perused the material available on record. The facts, in brief, are that the assessee company is engaged in the business of real estate projects, land acquisition, etc, declared net taxable income at Rs.1,35,72,623/- on 30/09/2009 in its return. The assessee follows mercantile system of accounting as income from real estate activities. The assessment was framed u/s 143(1) of the Act. The case of the assessee was selected for scrutiny, therefore, the ld. Assessing Officer issued/served notice u/s 143(2) of the Act. The assessee attended the proceedings. The ld. Assessing Officer while going through the profit & loss account of the assessee for the year ending 31/03/2009 found that the assessee had shown sales amounting to Rs.17,75,000/- and claimed following major expenses:-
Sr. Particulars Amount (Rs.) No. 1 Works Completed 10,45,92,451.45 2 Material Purchase 4,62,65,579.00 3. Direct Remuneration 21,00,000.00 4. Commission & Brokerage 13,75,000.00 5. Contract Charges 80,30,499.00 6. Salary 99,000.00
C.O. No.21/Mum/2016 Om Shree Gurukrupa Properties & Developers Pvt. Ltd.
7. Land Development Cost 12,66,000.00 8. Labour Charges 1,89,950.00 Total 15,58,87,980.45 2.2. The ld. Assessing Officer asked the assessee to justify its claim. The assessee, vide reply dated 09/11/2011 claimed as under:-
The company is formed to undertake real estate projects and to engage in land acquisition and regularization dealings. • The company took its first project by acquiring a piece and parcel of Land which is full encroached by the slum dwellers in Asalfa area in Ghatkopar west for carrying out a redevelopment project. The said land is a declared slum (Gazette copy IS enclosed for your reference). • The following are the CTS Nos. of the land which are acquired: • Description of the property CTS No. 121 (in stock) CTS No. 93 CTS No. 92 &: 100 CTS No. 133 (in stock) CTS No. 134 (in stock) CTS No. 300 & 302 • After acquiring the said land the company started the activity of land
C.O. No.21/Mum/2016 Om Shree Gurukrupa Properties & Developers Pvt. Ltd.
Regularization and leveling, fencing, construction of toilets, drainage Work, constructing of boundary etc.
• MMRDA officials approached for road widening for metro rail purpose, hence we thought of selling the property, thus sold it to one M/s. Manas Realtors Pvt. Ltd.
2. Details of Expenses:
1. Opening WIP represents the work done on the land till the year 2007-08, which was accumulated under the said head now written off against the revenue.
2. Purchases: during the year the company purchased cement, steel etc. to carry on the work as aforesaid.
Commission Et: Brokerage: Paid to the various people towards acquiring and regularization of the said land. As such an encroached land of SRA cannot be executed without the support of local people.
Contract Charges: is the charges paid to the contractors for carrying out the said work.
Prof Fees: paid towards carrying out accountancy and other professional work.
6. Loans & Advances: given to one Mr. Gopal Gala, towards acquisition of Right in respect of a slum property situated in Ghatkopar.
Land Development Exps: are the exps. incurred in the year 2006-07 towards land leveling and other contractors exp's, which was treated as advances till 2007-08, it is written off during the previous year.
WIP: includes payment made towards acquisition of the following properties possessing of which is with the company
C.O. No.21/Mum/2016 Om Shree Gurukrupa Properties & Developers Pvt. Ltd. - CTS No. 121 Rs. 12,00,000 - CTS No. 133, 133 (1 to 4) Rs. 1,50,000 - CTSNo.134, 134(1 to 6) Rs. 1,75,100 Rs. 15,25,100
Indirect Income includes Scrap Sales and interest income on temporary loan given.”
2.3. The assessee was asked to produce details of plot-wise expenditure to ascertain the extent of work undertaken on plot no.90, 92,93,100,121,133,134,300 and 302 as necessary details were not forthcoming from the assessee, therefore, the Ward Inspector was deputed to make on site enquiries and genuineness of the claim under taken for aforementioned plots. The Ward Inspector, vide his reported dated 23/12/2011, reported as under:-
“4.3 The Ward Inspector, in its report dated 23-12-2011 reported as under:
"As directed, I visited the 010. The City Survey Officer, GhatkoparlKurla, Topiwala Building, Mulund (West), Mumbai to obtain the whereabouts of plots bearing CTS No. 90, 92, 93, 100 and 121 situated at Kirol Village, Tal. Kurla and plots bearing CTS No. 131, 133, 134 and 121 situated at Asalpha Village, Tal. Ghatkopar on 20.12.2011. The City Survey Officer deputed their officer Shri Pawar with regards to Village Kirol, Tal. Kurla and C.O. No.21/Mum/2016 Om Shree Gurukrupa Properties & Developers Pvt. Ltd.
Smt. Gaikwad with regards to Village Asalpha, Ghatkopar (West) to show me the exact position of plots with relation to the CTS Survey Nos. mentioned above.
Alongwith Shri Pawar from the City Survey Office, I visited Kirol Village, Tal Kuria on 21.12.2011. He brought alongwith him maps of the relevant CTS Nos and identified the plots. The plots bearing CTS Nos. 90, 92 and 93 were part of a huge slum colony known as Kaju Tekadi at Mumbai Pin Code No. 400084. On going through this area, it was seen it was lined with houses on both side of small roads. The said slum area was opposite the Shiv Sena Office, Ghatkopar (West). No construction was going on these plots. Enquiries revealed that it was taken over for redevelopment by a certain Manas Developers and the only recent construction activity was construction of 2 toilets in the past 2-3 years. Photographs of the plot are annexed for your ready reference.
Next alongwith Shri Pawar from the City Survey Office, I visited plot bearing CTS No. 121 which was identified by Shri Pawar. This area was called Parshiwadi situated at Mumbai -86. There was a Bhim temple on the premises. This area was also lined with slum houses. There was no construction activity on the said plot. There was a board on the said plot stating the said area belonged to Shri Saibaba Constructions Pvt. Ltd. Photographs of the plots are annexed for your ready reference.
On 22.12.2011, I visited the area Asalpha, Ghatkopar (West) to look into the plots bearing CTS Nos. 121, 131, 133 and 134 alongwith Smt. Gaikwad from the City Survey Office. Smt. Gaidwad had with her maps of these plots from the Survey office, Mulund and she identified the plots and explained about
C.O. No.21/Mum/2016 Om Shree Gurukrupa Properties & Developers Pvt. Ltd. the same. It was poined out by Smt. Gaikwad of the City Survey Office that plots bearing CTS No. 133 and 134 had been used up in the road-widening of the Andheri Kurla Road.
With regards to plot bearing CTS No. 131 at Asalpha village, Ghartkopar (West), it was reported that it was part of larger plot alongwith part of CTS Nos. 126, 127, 128, 129, 130, 132 and 133. On this plot there was a under-construction building where only the ground floor had been constructed. On enquiry with the person present on the plot, Mr. Arjun, he stated that this plot belonged to M/s. Vaastu Developers which was owned by Shri Nikhil Singh and the entire area covered 45 to 46 thousand sq. foot. He further informed that work had been stopped for nearly 6 months for want of funds and the construction activity had started 1 year prior to the stoppage of work. He further stated that this plot was handed over to Vaastu Devolopers above 6-7 years back by its previous owners and they had started construction work on the plot from the last 2 years. The address of the plot was stated as Asalpha Gaon, Tal. Kurla, Koli & Dzouza compound, behind Jagdamba pada, Jambli Pada. Photographs of the plot are annexed to the report.
Thereafter, Smt. Gaikwad of the City Survey Office identified plot bearing CTS No.
She stated that this plot was admeasuring 6322.20 sq. metres. This plot had buildings named, Ram Kutir, Ekvira Darshan and Ram Darshan which were reported to be constructed by builder, Shri Ram Joshi. On the starting point of the plot were 12 shops. On enquiry, it was reported that these shops belonged to Sulochana Bhavsar and had been rented out to them for a long time and no renovation was carried out for many years. At the end of the plot were some slum houses and there also no construction work had been C.O. No.21/Mum/2016 Om Shree Gurukrupa Properties & Developers Pvt. Ltd.
undertaken for a long time. Photographs to that effect and enclosed for your ready reference."
In the light of the above report of the Inspector, the ld. Assessing Officer drew inference that no construction activity was undertaken all these plots, therefore, he made a disallowance of 40% to 50% and in some cases upto 80% of the claimed expenditure.
2.4. On appeal, the Ld. Commissioner of Income Tax (Appeal) examined the factual matrix and concluded as under:-
“5.3 I have examined the various bills of cement, steel, sand and other bills related to construction activity and noticed that the same are in order. There is no error in the bills and payments are also through cheques. All these activities of doors and windows were done with iron, steel material and drainage was also repaired from drainage materials purchased and also from steel, cement and sand together. The AO himself contradicts that the bills produced for cement , steel, sand and other related materials are mainly used for construction of roads and other repair works and even further the AO slates that the appellant had constructed latrines in the area. On verification of the BMC's acquisition of land for road, it was clear that there was a petrol pump and service station and later the constructions activities was carried out on the site and also leveling of the land etc.
C.O. No.21/Mum/2016 Om Shree Gurukrupa Properties & Developers Pvt. Ltd.
5.4 Hence the appellant had carried out the work in slums purchased from the original owner internal activity for the development of slum like fencing, land leveling, drainage, petrol pump on the site office development of internal roads, latrines, doors and windows. Hence these are also constructed. On examination of the bins of the above, materials were purchased and contractors were engaged and contractor's returns were also submitted along with TDS certificates for the TDS deducted. For the purchase of various materials, appellant made payment in cheques and bills are produced which are in order. Considering the above facts and circumstances, there might be certain expenditures which the appellant might have claimed higher. Amount disallowed is restricted to only 10% claimed expenditure for the expenditure disallowed by AO which appears to be reasonable than 40% to 80% expenditure disallowed by the AO. The appellant's disallowance is restricted to Rs. 1,10,94,328/- instead ofRs.4,94,04,138/-.
In the result, the appeal is Partly allowed.” 2.5. If the observation made in the assessment order, leading to addition made to the total income, conclusion drawn in the impugned order, material available on record, assertions made by the ld. respective counsel, if kept in juxtaposition and analyzed, we find that there is a factual finding in the impugned order (para-5.3 at page-8) that various bills of cement, steel and other bills related to C.O. No.21/Mum/2016 Om Shree Gurukrupa Properties & Developers Pvt. Ltd.
construction activity were examined by the Ld. Commissioner of Income Tax (Appeal) and the same were found in order. The assessee carried out work in slums, purchased from original owners and internal activities for the development of the slump were also done. There is a further finding that purchasing of the material has been duly mentioned in the returns of the assessee along with TDS Certificate and the payments have been made through cheque (as claimed by the assessee before us), therefore, considering the totality of facts and claimed higher expenditure, the Ld. Commissioner of Income Tax (Appeal) restricted the disallowance to the extent of 10%. No contrary material was brought to our notice by either side and more specifically the Revenue, therefore, the ad-hoc addition made by the ld. Assessing Officer cannot stand on its own legs, consequently, we affirm the stand of the Ld. Commissioner of Income Tax (Appeal), thus, appeal of the Revenue is having no merit, therefore, dismissed.
3. So far as, the Cross objection of the assessee restricting the disallowance to the tune of 10% is C.O. No.21/Mum/2016 Om Shree Gurukrupa Properties & Developers Pvt. Ltd.
concerned, the assessee has also not produced any evidence to substantiate its claim before this Tribunal.
Even it was not explained as to how the order of the Ld. Commissioner of Income Tax (Appeal) is contrary to facts, therefore, considering the totality of facts, available on record, we find no merit in the cross objection of the assessee, therefore, we affirm the stand of the Ld. Commissioner of Income Tax (Appeal), resulting into dismissal of cross objection of the assessee.
Finally, the appeal of the Revenue as well as the cross objection of the assessee are dismissed.
This order was pronounced in the open in the presence of ld. representatives from both sides at the conclusion of the hearing on 24/05/2016.