Business Park Overseas Pvt. Ltd.,, New ... vs Assessee

I.T.A.No. 1403/Del/2013 (Assessment Year 2006-07) ACIT, CC-23, Vs. M/s. Business Park Overseas New Delhi (P) Ltd., M-11, Middle Circle, Connaught Circus, New Delhi

(Appellant) (Respondent)

Appellant by : Shri V. S. Rastogi, AR Respondent by : Smt. Anuradha Mishra, CIT DR

Date of hearing : 13.04.2015 Date of pronouncement : 24.04.2015

ORDER

PER T.S. KAPOOR, AM:

These are cross appeals filed by assessee and revenue against the order of Ld. CIT(A) dated 24.12.2012. The assessee has taken various grounds of appeal. In grounds No.1 & 2, the assessee had raised legal issue which during the proceedings before us, were not pressed. Similarly, 2 ITA No.1731, 1403/Del/2013

grounds No.6 & 7 were not pressed at the time of hearing before us. In vie o above, grounds No.1, 2, 6 & 7 are dismissed as not pressed.

2. Ld. A.R. has filed a synopsis explaining the facts and circumstances of the case and submitted that the case of the assessee is covered in its favour by the order of various benches of the Tribunal in the case of group companies of assessee itself. The Ld. A.R. explained the facts of the case and submitted that assessee was engaged in the business of development of land and it had been acquiring land on behalf of another group company. During the year under consideration, the assessee had made payments for purchase of land which was duly reimbursed by the company on whose behalf land was purchased. It was submitted that A.O. had made additions for making cash payments for purchase of such land which in fact was not the expenses of assessee as it had procured land on behalf of some other company and since assessee had not debited expenses in its P & L account disallowance u/s 40A(3) was not warranted. He further submitted that one of the additions made by A.O. was on account of the fact that assessee had made certain additional payments for purchase of such land which again was on behalf of another company and for which assessee was reimbursed and therefore, there was no reason for disallowance. Regarding another addition made by A.O. the Ld. A.R. stated that A.O. had made additions on the basis that assessee must have paid interest out of books on post dated cheques. The Ld. A.R. submitted that all these issues are covered in favour of assessee in the case of group companies of the assessee. Regarding grounds No.3, 3.1 and 3.2, Ld. A.R. invited our attention to the fact that the A.O. had disallowed an amount of Rs.5.72 lacs on account of additional payments made by the assessee for purchase of land. Ld. A.R. submitted that the 3 ITA No.1731, 1403/Del/2013

assessee had not claimed any amount on account of additional payments, therefore, no disallowance could have been made by A.O. It was submitted that on appeal, Ld. CIT(A) has allowed relief to the extent of Rs.5.36 lacs and confirmed the addition for the remaining amount of Rs.42,000/-. It was further submitted that the department is in appeal for the relief granted by Ld. CIT(A) which the department has taken in its grounds of appeal vide ground No.2. Explaining the facts of the case, Ld. A.R. submitted that the assessee is part of group companies of BPTP and was engaged in the business of development of land. It was submitted that the assessee had made payment for purchase of land on behalf of M/s. Countrywide Promoters Pvt. Ltd. in view of collaboration agreement entered into between these two companies entered into on 15th Sep., 2004. It was submitted that vide this agreement, the land was to be purchased on behalf of M/s. Countrywide Promoters Pvt. Ltd. and the assessee was to be remunerated by an amount of Rs.25,000/- per acre for the total land purchased on behalf of the said company. Ld. A.R. in this respect filed a copy of collaboration agreement and invited our attention to the relevant clauses of the said agreement. Ld. A.R. further submitted that initially vide this agreement the share of the assessee in the land was fixed @ 5% and the remuneration was fixed @ Rs.25,000/- per acre whereas vide appendix to the agreement entered into on 15.09.2004, 5% share as mentioned in the original agreement was reduced to 0% and the fee for purchase of land on behalf of M/s. Countrywide Promoters Pvt. Ltd. was increased to Rs.35,000/- per acre. Ld. A.R. further submitted that in similar circumstances in the group companies in the case of Westland Development Pvt. Ltd., similar addition was made and ITAT vide order dated 22.08.2014 had deleted such addition. In this 4 ITA No.1731, 1403/Del/2013

respect, our attention was invited to paper book pages 29-63 specifically page 62 where relevant findings of the tribunal were placed.

3. Coming to ground No.4 and 4.1, Ld. A.R. submitted that the A.O. had made disallowance of Rs.8,54,172/- u/s 40A(3) of the Act which were confirmed by Ld. CIT(A). Ld. A.R. submitted that since assessee had not booked any expenditure for purchase of land, this disallowance u/s 40A(3) was not warranted. He submitted that similar disallowance was made by the A.O. in another group company namely Westland Developments Pvt. Ltd. and the tribunal vide order dated 22.08.2014 had allowed relief under similar set of circumstances and in this respect, our attention was invited to paper book pages 29-63 where a copy of such order was placed. Our specific attention was invited to para 10.10 at page 58 of such paper book and in view of the above, it was submitted that the matter is covered in favour of assessee. Vide ground No.5, the assessee has challenged the addition sustained by Ld. CIT(A) amounting to Rs.55,000/- as income from other sources. Ld. A.R. submitted that the addition was sustained without confronting the appellant or any of the parties and submitted that merely on the basis of suspicion, the addition cannot be sustained.

4. Ld. D.R. on the other hand heavily relied upon the orders of authorities below and in respect of revenue's appeal, he submitted that Ld. CIT(A) has wrongly deleted the addition of Rs.5.36 lacs which the A.O. had made on account of additional payments. As regards ground No.1 in Revenue's appeal, Ld. D.R. submitted that the A.O. had held that assessee had made payments of interest on post dated cheques which were not recorded in the books of accounts, therefore, the A.O. had rightly made the addition and Ld. CIT(A) has not dealt the issue in its right perspective.

5 ITA No.1731, 1403/Del/2013 5. Ld. A.R. on the other hand submitted that ground No.1 of revenue's appeal is also covered in its favour in the case of group companies of assessee namely M/s. IAG Promoters and Developers Pvt. Ltd. wherein the Tribunal vide order dated 31.10.2014 has decided the issue in favour of assessee and in this respect, our attention was invited to paper book pages 64-68.

6. We have heard rival parties and have gone through the material placed on record. We first take up the appeal of assessee. We find that ground No.3 of assessee's appeal is duly covered in its favour by the order of Tribunal in the case of group company M/s. Westland Developers Pvt. Ltd. wherein under similar facts and circumstances, the Tribunal vide order dated 22.08.2014, vide para 13 at paper book page 62, it had deleted the similar addition. For the sake of convenience, the findings of Tribunal are reproduced below:

"13. We have heard the rival submissions and perused the material available 0.1 record. The case law relied upon by the parties has been taken into consideration. On a consideration of the same we are of the view that since in the facts of the present case the material issue is that the' said expenditure was never claimed as assessee's business expenditure the occasion to make a disallowance of the same does not arise. On this fact there is no dispute as admittedly the expenditure was not claimed as an expense by the assessee and consequently has not been routed through its P&L a/c. In the circumstances, the occasion to make an addition of the same by way of a disallowance in these peculiar facts and circumstances of the case does not arise. The reasoning and finding given while considering the arguments qua Ground No-4 would fully apply here also. The difference that here the entire amount is added U/S 37 as opposed to part of the expenditure disallowed u/s 40A(3) is not so material as the finding is arrived at taking cognizance of the material fact that herein also no such claim of expenditure has been made. The fact that the additional payments were warranted in order to avoid potential disputes amongst the claimants of the land holding which have been passed through to the 6 ITA No.1731, 1403/Del/2013

land holders from generation to generation wherein there may be informal arrangements of ownership and or the payments were for commercial expediency to facilitate peaceful possession and registration of the land holding; where by the time Registry was made the landholders felt a higher payment was necessitated due to increase in value are issues which are not required to be adduced in the present proceedings. GroundNo-3 on the facts available on record considering the judicial precedent referred to in detail while deciding Ground No-4 has to be decided in favour of the assessee."

7. We find that in the present case also, the assessee had not routed the additional payment through P & L account and the facts and circumstances in the present case are similar. Therefore respectfully following the above tribunal order, we allow grounds No.3, 3.1 and 3.2 of the assessee's appeal. Since part of disallowance was deleted by Ld. CIT(A) which the revenue has challenged in its appeal vide ground No.2, therefore, ground No.2 of the Revenue's appeal is dismissed.

8. Now, coming to ground No.4 in assessee's appeal, we find that this issue is also covered in favour of assessee vide Tribunal order dated 31.10.2014 placed at paper book pages 56-57. The relevant findings of Tribunal are contained in para 10.10 at pages 56-57 are reproduced below:

10.10. We have also taken ourselves through the judgement of the Jurisdictional High Court in the case of CIT vs Industrial Engineering Projects Pvt. Ltd. (cited supra) which has been relied upon before us for the proposition that reimbursement of expenses cannot be treated to be a Revenue receipt. How the judgement of the Apex Court in Tuticorin Alkali Chemicals & Fertilizers is applicable to the facts of the present case has not been set out in the order of the authorities nor has the Ld, DR been able to address the applicability of the said judgement to the issue at hand. We have taken ourselves through the said Judgement and seen that it proceeds on entirety different facts and circumstances and has applicability to the facts of the present case. Consequently, it is seen that the ratio of the judgements relied upon before the CIT(A) and also before us which have been discussed 7 ITA No.1731, 1403/Del/2013

in the earlier part of this order no arguments have been advanced by the Revenue so as to contend how they are not applicable to the case at hand, no distinguishing fact, circumstance or position of law has been relied upon so as to come to a contrary finding than the one arrived at. Accordingly on a consideration of the peculiar facts and circumstances of the case and the judgements relied upon considering the relevant provision of the Act namely Section 40A(3), we hold for the detailed reasons given hereinabove that Section 40A(3) of the Act has been wrongly invoked as admittedly no expenses relatable to the addition has been claimed and the assessee has successfully demonstrated that the payment were re-imbursement made by CWPPL. Accordingly Ground N0.4 is allowed."

9. We find that in the present case also, the assessee had made payment on behalf of country vide developers which was reimbursed to the assessee and it had not claimed any expenditure for these payments. In view of above, ground No.4 of assessee's appeal is also allowed.

10. Regarding ground No.5, Ld. A.R. was not so serious about this ground and has not pressed the same therefore, the same is dismissed as not pressed.

11. Now, coming to Revenue's appeal, we have already decided ground No.2 while adjudicating assessee's appeal. So far as ground No.1 is concerned, the same is covered in favour of assessee vide Tribunal order dated 31.10.2014 wherein under similar set of circumstances, in the case of group company namely M/s. IAG Promoters and Developers (P) Ltd., the Tribunal has allowed relief to the assessee. The relevant findings of the tribunal are contained in para 5 placed at paper book pages 66-67 of the paper book, which is reproduced below:

"5. We have heard the arguments of both the sides and perused relevant material placed before us. At the outset, the ground raised by the Revenue is misconceived because learned CIT(A) has not deleted the addition of t5.06.625/- but has only directed to recalculate the Interest. We have carefully gone through the order of the learned CIT(A) and also the submissions of both the parties and we do not 8 ITA No.1731, 1403/Del/2013

find any infirmity In the order of the learned C!T(A). After examining the loose papers seized at the time of search at the assessee's premises, it was noticed that Interest Is paid on the PDCs only during the period of extension of PDCs and, therefore, he directed the Assessing Officer to recompute the interest on PDCs at the time of extension of the PDCs. He has further observed that if it is not possible to work out the extension of PDCs In each case, then the Assessing Officer is directed to recompute interest on PDCs after six months from the date of Issue of the PDCs. Therefore, the ground of appeal of the Revenue that the CIT(A) deleted the addition of Rs.5,06.625/- made by the Assessing Officer on account of Interest on PDCs is factually incorrect and contrary to the order of the CIT(A). The CIT(A) directed to recalculate the interest on PDCS and there was a sound logic for such direction. His direction is based on material found and seized at the time of search. In view of the above, we do not find any justification to interfere with the order of learned CIT(A) in this regard and accordingly, we reject ground No.1 of the Revenue's appeal."

12. We find that in the present case, under similar facts and circumstances the assessing officer had made additions and Ld. CIT(A) has made similar directions to recalculate the interest. Therefore, respectfully following the above tribunal order, ground No.1 of Revenue's appeal is also dismissed.

13. In nutshell, appeal filed by Revenue is dismissed whereas appeal filed by assessee is partly allowed.

14. Order pronounced in the open court on 24th April, 2015.

Sd./- Sd./- ( G. GEORGE K.) (T.S. KAPOOR) JUDICIAL MEMBER ACCOUNTANT MEMBER Date: 24.04. 2015 Sp Copy forwarded to:- 1. The appellant 2. The respondent 3. The CIT 9 ITA No.1731, 1403/Del/2013

4. The CIT (A)-, New Delhi.

5. The DR, ITAT, Loknayak Bhawan, Khan Market, New Delhi.

True copy. By Order (ITAT, New Delhi).

S.No. Details Date Initials Designation 1 Draft dictated on 16/4 Sr. PS/PS 2 Draft placed before author 16/4 Sr. PS/PS Draft proposed & placed before the 3 JM/AM Second Member Draft discussed/approved by Second 4 AM/AM Member 5 Approved Draft comes to the Sr. PS/PS 24/4 Sr. PS/PS 6 Kept for pronouncement 24/4 Sr. PS/PS 7 File sent to Bench Clerk 24/4 Sr. PS/PS Date on which the file goes to Head 8 Clerk 9 Date on which file goes to A.R. 10 Date of Dispatch of order