2010 (7) TMI 1037 - AT - Income Tax

Tribunal restores Revenue's additions for sales suppression, unaccounted profit, and disallowed deduction.

Income-tax Officer-19 (3) (1) Versus M/s. Diamond Investments & Properties,

The Tribunal allowed the Revenue's appeal, restoring the AO's additions and disallowances regarding the suppression of sale value of flats, unaccounted ... Addition on account of suppression of sale value to RPIPL - HELD THAT:- In the instant case the AO has brought on record that flats in the same building have been sold at a higher price than the sale price to RPIL and since the company has not paid the advance of ₹ 62 lakhs but only the directors of the company have paid such advance, we, therefore, are of the opinion that the CIT(A) was not justified in deleting the addition made by the AO. In this view of the matter, we set aside the order of the CIT(A) on this issue and restore that of the AO. This ground by the Revenue is accordingly allowed. Deleting the addition - unaccounted profit - compensation for surrender of tenancy rights - HELD THAT:- We find the AO had conclusively proved that the tenancy right in case of Shri Vinay Bhasin is a bogus one. We find the CIT(A) in a very brief and cryptic order deleted the addition without any sound reasoning. In our opinion, if any wrong has been done in the past the same cannot be perpetuated in the subsequent assessment years. Since no evidence whatsoever was furnished either before the AO or before the CIT(A) that Shri Vinay Bhasin was a tenant in the erstwhile ‘Mariam Villa’, therefore, in our opinion, the CIT(A) was not justified in deleting the addition made by the AO. We accordingly set aside the order of the CIT(A) and restore that of the AO. Disallowance of deduction - municipality taxes, maintenance charges etc - business expenditure - HELD THAT:- It is the settled proposition of law that for claiming any expenditure as business expenditure the onus is always on the assessee to substantiate with evidence to the satisfaction of the AO that such expenditure is wholly and exclusively for the purpose of business of the assessee. In the instant case the assessee has failed to discharge the onus cast on it. The learned CIT(A) without any proper evidence was simply carried away by the mere statement of the counsel which, in our opinion, is not proper. We, therefore, set aside order of the CIT(A) on this issue and restore that of the AO. The ground raised by the Revenue is accordingly allowed. In the result, the appeal filed by the Revenue is allowed. Issues Involved:1. Deletion of addition on account of suppression of sale value of flats.2. Deletion of addition towards unaccounted profit in respect of two flats allegedly allotted for tenancy rights.3. Deletion of disallowance of deduction made in respect of amounts paid to M/s. Arjun Centre.Issue-wise Detailed Analysis:1. Deletion of addition on account of suppression of sale value of flats:The Revenue contended that the CIT(A) erred in deleting the addition of Rs. 24,46,000 for suppression of sale value of flats sold to M/s. Raj Kiran Properties & Investments Pvt. Ltd. (RPIPL). The Assessing Officer (AO) found that the sale rate to RPIPL was significantly lower than the rates charged to other parties, such as Concord Shipping Ltd. (CSL) and Rochem India Pvt. Ltd. (RIPL). The AO suspected that the assessee obtained on-money from RPIPL, leading to the addition. However, the CIT(A) deleted the addition, stating that mere suspicion was insufficient and that no evidence was unearthed to show any on-money transaction. The CIT(A) also noted that RPIPL directors had paid an advance of Rs. 62 lakhs even before construction began, justifying the lower rate. The Tribunal disagreed with the CIT(A), stating that the AO provided concrete evidence of higher sale prices to other parties and that the advance payment by RPIPL directors did not justify the lower rate. The Tribunal restored the AO's addition, allowing the Revenue's ground.2. Deletion of addition towards unaccounted profit in respect of two flats allegedly allotted for tenancy rights:The Revenue challenged the CIT(A)'s deletion of Rs. 1,02,49,074 added by the AO for unaccounted profit related to two flats allotted to Shri Vinay Bhasin, allegedly for surrendering tenancy rights. The AO found no evidence to prove the tenancy of Shri Vinay Bhasin and deemed the tenancy rights bogus. The CIT(A) deleted the addition, relying on earlier assessments where the tenancy was accepted and the ITAT's affirmation of the genuineness of the tenancy rights. The Tribunal, however, found the CIT(A)'s order brief and lacking sound reasoning. It emphasized that no evidence was provided to substantiate the tenancy claim and restored the AO's addition, allowing the Revenue's ground.3. Deletion of disallowance of deduction made in respect of amounts paid to M/s. Arjun Centre:The Revenue contended that the CIT(A) erred in deleting the disallowance of Rs. 76,519 paid to M/s. Arjun Centre. The AO disallowed the amount as the assessee failed to establish its relation to the business. The CIT(A) deleted the disallowance, accepting the assessee's claim that the premises were used for business purposes. The Tribunal found no basis for the CIT(A)'s decision, emphasizing that the onus was on the assessee to substantiate the expenditure's business purpose. The Tribunal restored the AO's disallowance, allowing the Revenue's ground.Conclusion:The Tribunal allowed the Revenue's appeal on all grounds, restoring the AO's additions and disallowances. The judgment emphasized the need for concrete evidence and proper substantiation of claims by the assessee.