M/S.Bhargavi Real Estates (P) Ltd.,, ... vs Department Of Income Tax

2. The assessee in the present case is a company which is engaged in the business of real estate. The return of income for the year under consideration was filed by it on 27.11.2006 declaring total income of Rs.20,19.030. The income so declared was in respect of three projects viz., Ganesh Millennium City, Ganesh City and Ganesh Pearl City undertaken by the assessee involving purchase of land, developing the same into plots and selling the plots. Against the sale proceeds of plots aggregating to Rs.6,26,54,163, various expenses were claimed by the assessee which inter alia included land development charges of Rs.48,00,863, commission of Rs.5,44,525 and payment against land of 2 ITA.No.1273/Hyd/2013 M/s. Bhargavi Real Estates (P) Ltd., Hyderabad

Rs.46,00,000. During the course of assessment proceedings, assessee was called upon by the A.O. to explain the exact nature of these expenses claimed by it and also to furnish the relevant details along with books of accounts and relevant vouchers/bills to establish that the same were incurred wholly and exclusively for the purpose of its business. In reply, it was submitted by the assessee that out of the total land development expenses of Rs.48,00,863, a sum of Rs.32,00,000 was spent towards development expenses in respect of Ganesh Millennium City Project and the said amount was paid to M/s. Manish Estates after deducting TDS. As regards the balance expenditure of Rs.16,00,863, it was submitted by the assessee that the same was incurred towards fencing, road cutting guards etc., in respect of Ganesh Vision City and Ganesh City Projects. As regards the cost of land, it was submitted by the assessee that a sum of Rs.30,00,000 was paid to the land owners of Ganesh Pearl City and a sum of Rs.16,00,000 was paid to the land owners of Ganesh Vision City as extra price. These payments were claimed to be made partly by cheque and partly by cash. As regards the commission expenses, it was submitted by the assessee that the payment on account of commission was made by cheque after deducting tax at source. Copy of relevant TDS certificate was also filed by the assessee in support.

2.1. The A.O. did not find merit in the explanation offered by the assessee in respect of its claim for land development charges, commission and payment towards land to be satisfactory. As regards the payment made towards land, he noted that the assessee could not produce the copies of relevant agreements for payment of extra compensation 3 ITA.No.1273/Hyd/2013 M/s. Bhargavi Real Estates (P) Ltd., Hyderabad

claimed to be paid to the land lords. He also noted that even the confirmations from the concerned land owners could not be furnished by the assessee. As regards the payment of Rs.32,00,000 claimed to be made by the assessee to M/s. Ganesh Estates towards development charges, the A.O. held that even though the said payment was made by cash after deducting the tax at source, the relevant vouchers/bills were not produced by the assessee to establish the exact nature of work done by M/s. Ganesh Estates. As regards the balance expenditure of Rs.16,00,863 claimed to be incurred by the assessee on fencing, road cutting, guards etc., the A.O. found that the same was supported only by self-made vouchers, which did not bear either the name or signature of the payee or even the relevant details to show the exact nature of work done. As regards the commission expenditure, the A.O. noted that there was a similar failure on the part of the assessee to discharge the onus to prove that the said expenditure was incurred wholly and exclusively for the purpose of his business. He, therefore, disallowed the expenses claimed by the assessee on account of land development, commission and payment towards land in the assessment completed under section 143(3) vide order dated 31.12.2008.

2.2. Against the order passed by the A.O. under section 143(3), assessee preferred an appeal before the Ld. CIT(A) disputing the disallowance made by the A.O. on account of expenditure claimed by it on land development, commission and payment towards land. During the course of appellate proceedings before the Ld. CIT(A), additional evidence was filed by the assessee in the form of affidavits from land lords who were paid the additional compensation by the assessee. The 4 ITA.No.1273/Hyd/2013 M/s. Bhargavi Real Estates (P) Ltd., Hyderabad

same was forwarded by the Ld. CIT(A) to the A.O. seeking his remand report and after confronting the remand report received from the A.O. to the assessee seeking its comments thereon, the Ld. CIT(A) held that the land development expenses of Rs.16,00,863 claimed to be incurred by the assessee for road cutting, fencing, guards etc., could reasonably allowed in the facts and circumstances of the case to the extent of 50%. Accordingly, disallowance made by the A.O. on this count was restricted by him to 50%. The disallowance of balance development expenditure of Rs.32,00,000 made by the A.O. however was deleted by the Ld. CIT(A) for the following reasons given in paragraph 8.2 of his order.

"8.2. I have carefully considered the remand report and the submissions of the appellant. It is an undisputed fact accepted by the Assessing Officer that the amount of Rs.32 lakhs was paid by the appellant to M/s. Ganesh Estates, which is a proprietary concern of Sri U. Rajendra Prasad, for the development of Ganesh Millennium City with an extent of 250 acres, but only has doubts over the services really rendered by Sri U. Rajendra Prasad to the appellant company. The appellant also submitted Form NO.16A evidencing TDS on the amount of Rs.32 lakhs paid to M/s. Ganesh Estates. An affidavit was filed by Sri U. Rajendra Prasad, wherein, he stated that he had entered into an agreement with the appellant during F.Y.2005-06 for carrying on the developmental works and construction of site office etc. and had received Rs.32 lakhs by way of account payee cheques in respect of the works executed by him and he stated that he was assessed with ITO, Ward 6(3), Hyderabad. As rightly argued by the appellant, no prudent business company will pay such a huge amount of Rs.32 lakhs to any other company including sister concern without any services being 5 ITA.No.1273/Hyd/2013 M/s. Bhargavi Real Estates (P) Ltd., Hyderabad

rendered by the recipient. If the A.O. had doubts over the services rendered by Sri U. Rajendra Prasad for Ganesh Millennium City, he should have caused independent enquiries to prove the same. In absence of such cogent evidence, reliance of the A.O. on mere surmises, doubting the services rendered cannot be sustained."

2.3. The disallowance made by the A.O. on account of commission was also deleted by the Ld. CIT(A) for the following reasons given in paragraph No. 9.2 of his order.

"9.2. I have carefully considered the remand report and the submissions of the appellant. As verified from the record, the appellant has submitted Form No.16A evidencing payment of commission to various persons and deducted TDS on the same. Hence, the expenses on account of commission payments amounting to Rs.5,44,525 is deleted."

2.4. As regards the expenditure of Rs.46,00,000 incurred on payment towards land as additional compensation to the land lords, the A.O. stated in the remand report that the said payments confirmed by the concerned land lords were partly made in cash to the extent of Rs.26,50,000. It was therefore suggested by the A.O. in the remand report that the said payments made in cash exceeding Rs.20,000 should be disallowed under section 40A(3) to the extent of 20% i.e., Rs.5,30,000. The Ld. CIT(A) however did not accept this suggestion of the A.O. made in the remand report and held that no disallowance under section 40A(3) was called for as the assessee had made cash payments in respect of projects located in remote villages where banking facilities were not existing. He held that the said payments thus were covered by Rule 8DD of the I.T. Rules and the disallowance under section 40A(3) was not called for. The Ld. CIT(A) thus allowed 6 ITA.No.1273/Hyd/2013 M/s. Bhargavi Real Estates (P) Ltd., Hyderabad

substantial relief to the assessee by deleting the various disallowances made by the A.O. and aggrieved by the order of the Ld. CIT(A), the Revenue has preferred this appeal before the Tribunal on the following grounds :

1. "The order of the CIT(A) is erroneous in law and facts of the case.

2. The Ld. CIT(A) erred in deleting the disallowance of land development charges of Rs.32 lakhs paid to M/s Ganesh Estates, a proprietary concern belonging to one of the director of the assessee company, even though the assessee had not discharged its onus to prove that the expenditure was incurred wholly and exclusively for the purpose of its business.

3. The Ld. CIT(A) erred in deleting the disallowance out of commission expenses of Rs.5,44,525/- even though the assessee had not discharged its onus to prove that the expenses were incurred for its business.

4. The Ld. CIT(A) has Ld. CIT(A) has erred in deleting disallowance made u/s. 40A(3) of I.T. Act amounting to Rs.5,30,000/- even though it was established by AO that the cash payments were made to persons who were having banking accounts and these payments were not covered by exception laid down in Rule 6DD of I.T. Rules.

5. Any other ground that may be argued at the time of hearing."

3. In this case, the appeal of the Revenue was fixed for hearing on various dates i.e., 08.01.2014, 29.04.2014, 18.08.2014 and 18.12.2014. However, nobody appeared on behalf of the assessee on these dates nor any application seeking adjournment was filed. The hearing therefore was finally fixed before the Tribunal on 05.05.2015 and a notice of the same was sent through the O/o Learned D.R. However still none has appeared on behalf of the assessee on 05.05.2015 despite the fact that notice of the said hearing sent through 7 ITA.No.1273/Hyd/2013 M/s. Bhargavi Real Estates (P) Ltd., Hyderabad

the department was duly served on the assessee, a proof of which is placed on record before us. This appeal of the Revenue is therefore being disposed of exparte qua the respondent-assessee after hearing the arguments of learned D.R. and perusing the relevant material on record.

4. Ground Nos. 1 and 5 raised by the Revenue in this appeal are general in nature seeking no specific decision from us. As regards the issue involved in ground No.2 relating to the claim of the assessee for land development charges of Rs.32,00,000 paid to M/s. Ganesh Estates, it is observed that the claim of the assessee for such development expenses was disallowed by the A.O. on the ground that the relevant details to show the exact nature of expenses incurred were not furnished by the assessee and the onus to prove that the said expenses were incurred in connection with the concerned projects of the assessee was not satisfactorily discharged. As rightly contended by the Learned D.R., this specific reason given by the A.O. for making the disallowance has been overlooked by the Ld. CIT(A) and the claim of the assessee for land development charges of Rs.32,00,000 is allowed by him only on the basis that the payment of such charges was made by the assessee to M/s. Ganesh Estates, by cheque after deducting tax at source. In our opinion, the mere fact that the relevant payment was made by the assessee to M/s. Ganesh Estates by cheque after deducting tax at source is not sufficient to allow the claim of the assessee for the said expenses and the onus in this regard is on the assessee to establish on evidence that the land development expenses were incurred wholly and exclusively for the purpose of its business. We therefore set aside the impugned order of the Ld. CIT(A) on 8 ITA.No.1273/Hyd/2013 M/s. Bhargavi Real Estates (P) Ltd., Hyderabad

this issue and restore the matter to the file of the A.O. for deciding the same afresh after giving the assessee one more opportunity to support and substantiate its claim for development charge of Rs.32,00,000 claimed to be paid to M/s. Ganesh Estates. Ground No.2 of the Revenue's appeal is treated as allowed for statistical purposes.

5. As regards the issue involved in ground No.3 relating to assessee's claim for commission expenses, it is observed that the Ld. CIT(A) has again erred in relying only on the fact that the amount of commission was paid by the assessee by cheque after deducting tax at source to allow the claim of the assessee without appreciating that it is for the assessee to establish on evidence that the commission expenses claimed by it were incurred wholly and exclusively for the purpose of its business. We therefore set aside the impugned order of the Ld. CIT(A) on this issue and restore the matter to the file of A.O. for deciding the same afresh after giving the assessee one more opportunity to support and substantiate its claim of commission expenses. Ground No.3 is also treated as allowed for statistical purposes.

6. As regards the issue involved in ground No.4 relating to the disallowance under section 40A(3) for payments made by the assessee to the land lords in cash exceeding the stipulated limit of Rs.20,000, it is observed that the payments made by the assessee to the land lords in cash were found to be covered by the Ld. CIT(A) by exceptional circumstances specified in Rule 8DD of I.T. Rules inasmuch as the same were made in respect of projects of the assessee located in remote villages where banking facilities were not in existence. At the time of hearing before us, the learned D.R. has not been able 9 ITA.No.1273/Hyd/2013 M/s. Bhargavi Real Estates (P) Ltd., Hyderabad

to dispute or controvert this finding recorded by the Ld. CIT(A) while allowing the relief to the assessee on this issue. We therefore find no justifiable reason to interfere with the order of the Ld. CIT(A) giving relief to the assessee on this issue and upholding the same, we dismiss ground No.4 of the Revenue's appeal.

7. In the result, appeal of the Revenue is treated as partly allowed for statistical purposes.

Order pronounced in the open Court on 08.05.2015.

Sd/- Sd/- (SAKTIJIT DEY) (P.M. JAGTAP) JUDICIAL MEMBER ACCOUNTANT MEMBER

Hyderabad, Dated 08th May, 2015.

VBP/-

Copy to

1. The DCIT, Circle 1(3), 4th Floor, Aayakar Bhavan, Hyderabad.

2. M/s. Bhargavi Real Estates (P) Ltd., 3-4-229, Sri Gaurav Kalyan Apartments, Kachiguda, Hyderabad.

3. CIT(A)-V, Hyderabad

4. CIT-1, Hyderabad.

5. D.R. I.T.A.T. "B" Bench, Hyderabad.