2022 (1) TMI 475 - AT - Income Tax

Tribunal Decision: Revenue Appeal Dismissed, Assessee Appeals Allowed, Profit Estimation Arbitrary

The Income Tax Officer, Ward-11 (1) (3) Mumbai Versus M/s. Salient Traders Pvt. Ltd. And (Vice-Versa)

The Income Tax Officer, Ward-11 (1) (3) Mumbai Versus M/s. Salient Traders Pvt. Ltd. And (Vice-Versa) - TMI Issues Involved:1. Deletion of addition made on account of determination of net profit @8% of turnover.2. Rejection of books of accounts.3. Disallowance of various expenses including Apatra expenses, compensation for delay in project, rent expenses, and cost of construction.4. Disallowance u/s. 40(a)(ia) for non-deduction of TDS on rent expenses.5. Set off and carry forward of losses of earlier years.Issue-wise Detailed Analysis:1. Deletion of Addition Made on Account of Determination of Net Profit @8% of Turnover:The Revenue contested the deletion of the addition made by the Assessing Officer (AO) who determined the net profit at 8% of the turnover. The AO rejected the books of accounts and estimated the net profit based on the provisions of Section 44AD of the Income Tax Act, 1961, which the assessee argued was not applicable. The CIT(A) observed that the AO did not provide any evidence to support the 8% net profit rate and that the AO's general observation about the profitability of slum rehabilitation projects was not substantiated. The CIT(A) found that the AO had mixed up the issues related to payments to unauthorized and authorized slum dwellers and concluded that the rejection of books and estimation of net profit was arbitrary. The Tribunal upheld the CIT(A)'s decision, noting that the AO had accepted the assessee's method of accounting in subsequent years without making any additions.2. Rejection of Books of Accounts:The AO rejected the books of accounts under Section 145(3) of the Act, citing inconsistencies and unascertained liabilities. The CIT(A) disagreed, stating that the AO's observations were based on incorrect facts and that the books were audited with no discrepancies pointed out in the tax audit report. The Tribunal concurred with the CIT(A), noting that the AO had accepted the books in subsequent years and that the offer of disallowance by the assessee was to buy peace and avoid litigation, not an admission of discrepancies.3. Disallowance of Various Expenses:- Apatra Expenses and Compensation for Delay in Project: The AO disallowed these expenses, questioning their genuineness and timing. The CIT(A) found that these were based on agreements and consent terms of the Civil Court, making them ascertained liabilities. The Tribunal upheld this view, noting that the assessee had been making payments in subsequent years, proving the genuineness of the liabilities.- Rent Expenses: The AO disallowed these expenses under Section 40(a)(ia) for non-deduction of TDS. The CIT(A) and the Tribunal, relying on case law, held that these were not in the nature of rent but compensation for alternate accommodation, thus not attracting TDS provisions.- Cost of Construction: The AO questioned the genuineness and timing of these expenses. The CIT(A) found that the cost claimed was conservative and on the lower side, with actual costs reaching approximately Rs. 15 crores in subsequent years. The Tribunal agreed, noting that the assessee had not received the full sale consideration but had offered it for taxation, following the matching principle of income and expenditure.4. Disallowance u/s. 40(a)(ia) for Non-Deduction of TDS on Rent Expenses:The AO disallowed rent expenses for non-deduction of TDS. The CIT(A), relying on Tribunal decisions, held that the payments were compensation for alternate accommodation, not rent, and thus not subject to TDS. The Tribunal upheld this decision, confirming that no disallowance under Section 40(a)(ia) was warranted.5. Set Off and Carry Forward of Losses of Earlier Years:The AO denied the set-off of losses from earlier years due to the conversion of returned loss into assessed income by estimating net profit. The Tribunal, having deleted the additions for A.Y. 2012-13, held that the assessee was eligible to carry forward and set off losses as per law. For A.Y. 2014-15, the Tribunal dismissed the ground regarding the change in shareholding as it was not emanating from the AO's order and confirmed the eligibility for set-off of losses.Conclusion:The Tribunal dismissed the Revenue's appeal for A.Y. 2012-13, allowed the assessee's appeal for A.Y. 2013-14, and partly allowed the appeal for A.Y. 2014-15. The order was pronounced on 23/12/2021.