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2020 (11) TMI 942 - AT - Income TaxExcess rent paid to the related party - Scope of the term Relative - Disallowance invoking the provision of section 40A(2)(b) - Whether expenditure incurred by the assessee is purely for the purpose of business and payment of Rent has not been found to be excessive or unreasonable? - HELD THAT:- As assessee has contended that the recipient at Serial No.(1) and (3) namely Alka Bajaj and Preeti Bajaj are sister-in-law of the assessee and therefore do not fall in the definition of relative as provided u/s 2(41). This fact is not disputed by the Revenue and therefore, the payment to these two persons would not fall in the ambit of provisions of section 40A(2) when the transaction is not with the relative of the assessee as provided u/s 40A(2)(b)(i) -There is no dispute that the definition of the term “relative” provided u/s 2(41) of the Income Tax Act. Therefore the sister-in-laws of the assessee are not included in the said definition of relative u/s 2(41) of the Income Tax Act. Since this definition provided u/s 56(2) is only for the said clause of section 56(2) therefore, the same cannot be applied in respect of provisions of section 40A(2) when a general definition of term “relative” is provided u/s 2(41) of the Act. Hence, the provisions of section 40A(2) cannot be invoked in respect of transaction of payment of rent to Alka Bajaj and Preeti Bajaj who are not falling in the definition in term of ‘relative’ provided u/s 2(41) . Excess /unreasonable payment to the specified person - Quantum of rent cannot be considered in absolute terms as to whether it is excess or unreasonable without considering the rate of rent paid by the assessee in terms of per square feet or per square meter. Further the comparison of the rent paid by the assessee is also depends upon various factors being the locality of the each property if the same are not situated at one place and therefore there cannot be a standard criteria of fair market rent to be applied for all the properties without considering the criteria such as locality, nature of property and other advantage or disadvantage attached to a particular property. Hence, the fair market rent required to be determined by considering all these factors and by bringing on record the comparable cases for each of the property as per their location, category and advantage or disadvantage attached to them. The AO failed to conduct the minimum enquiry to ascertain the fair market rent of these properties. Once the transaction of payment of rent is not found to be bogus or ingenuine then the disallowance of the expenditure u/s 40A(2)(b) is not warranted in the absence of a definite finding that the payment made by the assessee is excessive or unreasonable in comparison to the fair market rent. When the AO has not conducted any enquiry to determine the fair market rent so as to hold that the payment made by the assessee on account godown/shop rent is excessive or unreasonable, the disallowance made by the AO is contrary to the provisions of section 40A(2) - Decided in favour of assessee.
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