2018 (2) TMI 593 - AT - Income Tax

Tribunal rules joint venture not taxable as Association of Persons (AOP) due to lack of essential attributes

The Tribunal upheld the decision of the Ld. CIT(A) to delete the addition of profit made by the AO in a case involving a joint venture. It was determined ... Estimation of income of JV - Addition u/s. 40A(2)(b) - addition by computing the profit of the joint venture @4% of the gross receipts as the assessee - Held that:- In CIT vs. Oriental Structure Engineers Pvt. Ltd. [2015 (3) TMI 102 - DELHI HIGH COURT] has observed that in the case of JV of such kind Section 40A(2) is not applicable. There are other judicial findings in this regard arriving at the same conclusion which are reported as CIT vs. SMSL UANRCL (JV) [2015 (3) TMI 279 - BOMBAY HIGH COURT]. In all the above cases, it has been held that where the constituent participants make a JV to secure a contract, which is merely a pass through entity with minimal expenses, no tax liability cab be attributed by holding the subject entity JV as AOP. No net profit on % bases can be taxed as has been done in this case. Note that AR of the assessee in this case relied upon the order of the CIT(A) and DR relied upon the order of the AO. But the DR could not controvert the finding of the CIT(A) wherein he has followed the precedents of the Hon’ble High Court and Tribunal and Ld. DR also could not place any contrary decision before us. - Decided against revenue. Issues:1. Addition of profit by computing the profit of the joint venture.2. Tax liability of the joint venture as an Association of Persons (AOP).3. Permission to add, delete, or amend grounds of appeal.Issue 1: Addition of Profit by Computing the Profit of the Joint VentureThe case involved an appeal by the Revenue against the Order of the Ld. Commissioner of Income Tax (Appeals) concerning the addition of profit made by the Assessing Officer (AO) by computing the profit of the joint venture at 4% of the gross receipts. The AO invoked section 40A(2)(b) of the Income Tax Act, 1961, alleging excessive charges paid by the assessee to its constituents. The Ld. CIT(A) allowed the appeal of the assessee and deleted the addition, emphasizing that the joint venture was merely a pass-through entity with minimal expenses. The Tribunal upheld the decision of the Ld. CIT(A) based on the precedent set in the appellant's own case for the AY 2011-12 and other judicial findings, concluding that no tax liability could be attributed to the joint venture as an AOP. The Tribunal found that the Ld. CIT(A) had passed a well-reasoned order, upholding the deletion of the addition.Issue 2: Tax Liability of the Joint Venture as an Association of Persons (AOP)The question of whether the joint venture could be considered an Association of Persons (AOP) was central to the dispute. The Ld. CIT(A) extensively discussed the nature of the joint venture, citing previous cases and judicial findings to support the argument that joint ventures formed solely to secure contracts cannot be taxed as AOPs. The Tribunal concurred with the Ld. CIT(A)'s analysis, noting that the joint venture in question was formed for a specific contract and did not have its own workforce, funds, or fixed assets. The Tribunal emphasized that the joint venture acted as a conduit for payments between the participants and the client, with each participant independently executing its designated work. Ultimately, the Tribunal dismissed the Revenue's appeal, holding that the joint venture did not meet the criteria to be taxed as an AOP.Issue 3: Permission to Add, Delete, or Amend Grounds of AppealThe appellant sought permission to add, delete, or amend grounds of appeal before or at the time of the hearing. However, the judgment did not specifically address this issue as the focus was primarily on the substantive matters related to the addition of profit and the tax liability of the joint venture. The Tribunal's decision was based on the merits of the case and the legal principles governing the taxation of joint ventures, rather than procedural aspects related to the grounds of appeal.In conclusion, the Tribunal upheld the Ld. CIT(A)'s decision to delete the addition of profit made by the AO, ruling that the joint venture, being a pass-through entity with minimal expenses, could not be taxed as an AOP. The judgment relied on established legal precedents and interpretations to support the finding that the joint venture did not have the characteristics necessary to attract tax liability as an AOP.