2025 (5) TMI 456 - AT - Income Tax

Disallowance of deduction made u/s 80IA - non-filing of the audit report in Form 10CCB relevant agreements and assessee is a works contractor not engaged in development maintenance of infrastructure facility - CIT(A) confirmed the above disallowance made by the Assessing Officer on the ground that the assessee has not furnished prescribed audit report in Form 10CCB - HELD THAT - As before us it was the claim of the assessee that Form 10CCB was filed during the course of assessment proceedings the agreements were also produced but the Assessing Officer as well as Ld. CIT(A) has not accepted this fact and therefore the disallowance made by the Assessing Officer was confirmed by CIT(A). We find that Ld. AR of the assessee produced an affidavit duly sworn in by the Chief Financial Officer of the assessee company stating that Form 10CCB was filed during the course of assessment proceedings and the same is still available in the original assessment case records. It is also the contention of the assessee that this fact was revealed when the assessee sought permission of inspection of original assessment case records which was called at the direction of this Tribunal. We find in the affidavit that the assessee also claimed that the relevant agreements/documents were also handed over to the Assessing Officer physically as well as in Pen Drive. We deem it appropriate to set-aside the order passed by CIT(A) with regard to ground no.4 only i.e. in respect of disallowance of deduction claimed by the assessee u/s 80IA and remand the matter back to him with a direction to decide this limited issue only afresh as per fact and law after providing reasonable opportunity of hearing to the assessee. Thus this ground no.4 raised by the assessee stands partly allowed for statistical purposes. Addition u/s 2(22)(e) - HELD THAT - In the catena of judgements referred by Ld. Counsel for the assessee as well as in the impugned order the ratio laid down by the Hon ble Apex Court in the case of Gopal And Sons (HUF) 2017 (1) TMI 331 - SUPREME COURT has not been considered. Under these given facts and circumstances we deem it appropriate to remit back the issue of addition for deemed dividend u/s 2(22)(e) of the IT Act back to the file of CIT(A) who shall examine the facts in the light of above judgement of Hon ble Apex Court in the case of Gopal And Sons (HUF) (supra) and shall also conduct necessary enquiry to examine about the application of alleged funds received by the company. Before parting we also notice that one of the ground raised by the assessee is that the transaction between the two companies i.e. one which gave the alleged some and one which received the alleged sum are in the nature of business transactions however as to whether the company which has given the loan is into lending business or not this aspect also needs to be considered by Ld. CIT(A) while carrying out the proceedings of examination of the issue of addition for deemed dividend u/s 2(22)(e) of the IT Act. Agricultural income - We find that similar claim of agricultural income was allowed in earlier years and the ownership of substantial agricultural land was also accepted accordingly we do not find any infirmity in the order passed by Ld. CIT(A) wherein he allowed the relief of Rs. 3, 00, 000/-. Thus this ground no.2 raised by the Revenue is dismissed. Addition on account of various expenses - HELD THAT - We find that the AO has made ad-hoc/estimated disallowance and no specific instance was pointed out and accordingly Ld. CIT(A) gave relief by estimating the reasonable disallowance and therefore we do not find any infirmity in the order passed by Ld. CIT(A) wherein he has restricted the addition of Rs. 35, 00, 000/- to Rs. 20, 00, 000/- thereby allowing relief of Rs. 15, 00, 000/- to the assessee on account of various expenses made on ad-hoc basis. Thus the ground no.3 raised by the Revenue is dismissed.

Summary

Several core legal questions were considered by the Tribunal in this matter arising from cross appeals filed by both the assessee and the Revenue against the order of the Commissioner of Income-tax (Appeals) for the assessment year 2013-14. The principal issues deliberated were:

1. Whether the disallowance of Rs. 5,12,194/- under section 40A(3) of the Income Tax Act was justified, considering the evidence submitted by the assessee.

2. The correctness of treating agricultural income of Rs. 6,00,000/- as cash credit under section 68 and the extent of addition warranted.

3. The validity of disallowance of other expenses amounting to Rs. 35,00,000/- and the reasonableness of the quantum of disallowance.

4. The entitlement of the assessee to claim deduction under section 80IA of the Income Tax Act, particularly in light of the absence or non-consideration of prescribed audit report in Form 10CCB and relevant agreements.

5. The applicability of deemed dividend provisions under section 2(22)(e) of the Income Tax Act on the loan transactions between the assessee company and its sister concern, and the correctness of the addition of Rs. 49,59,14,779/- as deemed dividend.

6. The justification for allowing relief of Rs. 3,00,000/- in respect of agricultural income by the CIT(A) and the adequacy of supporting evidence.

7. The appropriateness of restricting the addition on account of disallowance of expenses to Rs. 20,00,000/- by the CIT(A) despite the Assessing Officer's higher disallowance.

These issues were addressed in the context of the facts, statutory provisions, and judicial precedents.

Issue-wise Detailed Analysis

Disallowance under Section 40A(3)

This issue pertained to the disallowance of Rs. 5,12,194/- made by the Assessing Officer under section 40A(3) for certain payments. The assessee contended that vouchers amounting to Rs. 3,42,800/- were submitted during appellate proceedings to substantiate the payments. However, the Commissioner of Income-tax (Appeals) confirmed the disallowance, and the assessee chose not to press this ground before the Tribunal. Consequently, this issue was dismissed as not pressed.

Treatment of Agricultural Income under Section 68

The Assessing Officer treated agricultural income of Rs. 6,00,000/- as unexplained cash credit under section 68, making an addition accordingly. The CIT(A) reduced this addition to Rs. 3,00,000/- after considering the assessee's submissions regarding ownership of agricultural land and prior acceptance of agricultural income in preceding years. The assessee did not press this ground before the Tribunal, and the Revenue challenged the relief granted by CIT(A). The Tribunal upheld the CIT(A)'s order, noting that the assessee's ownership of cultivable agricultural land and prior acceptance of agricultural income were established, and the partial relief was justified in the interest of justice.

Disallowance of Other Expenses

The Assessing Officer disallowed Rs. 35,00,000/- on account of "other expenses" due to lack of satisfactory details and disproportionate increase relative to turnover. The CIT(A) reduced this disallowance to Rs. 20,00,000/- after considering that the expenses were incurred across various locations with difficulties in documentation, and by drawing analogy to disallowances in related entities. The Revenue challenged the reduction, but the Tribunal found no infirmity in the CIT(A)'s order, as the Assessing Officer's disallowance was ad-hoc and the appellate authority reasonably restricted the disallowance to a fair quantum.

Deduction under Section 80IA

This was a pivotal issue. The assessee claimed a deduction of Rs. 2,73,36,424/- under section 80IA as a developer of infrastructure facilities. The Assessing Officer disallowed the deduction on multiple grounds: the assessee was a works contractor rather than a developer; non-filing of return under section 139(1) rendering the claim ineligible under section 80AC; non-filing of prescribed audit report in Form 10CCB; and non-submission of relevant agreements.

The CIT(A) confirmed the disallowance primarily on the ground of non-filing of Form 10CCB and absence of agreements. The assessee contended before the Tribunal that Form 10CCB was indeed filed during assessment proceedings and was part of the original assessment records, as revealed upon inspection directed by the Tribunal. An affidavit sworn by the Chief Financial Officer attested to the filing of Form 10CCB and submission of agreements both physically and electronically (via Pen Drive). The assessee also relied on prior orders of the Income Tax Settlement Commission allowing similar deductions for preceding years.

The Revenue argued that since Form 10CCB was not considered by the Assessing Officer or CIT(A), the disallowance was justified and urged confirmation of the order. The Tribunal, after considering the affidavit and the facts, found it appropriate to set aside the CIT(A)'s order on this limited issue and remand the matter for fresh adjudication. The CIT(A) was directed to provide a reasonable opportunity of hearing, examine the newly produced evidence, and decide the issue in accordance with law without undue adjournments. This approach was taken without delving into the substantive merits of the claim, emphasizing procedural fairness and proper consideration of evidence.

Deemed Dividend under Section 2(22)(e)

The Assessing Officer treated a loan of Rs. 60,45,43,526/- taken by the assessee from its sister concern as deemed dividend under section 2(22)(e), limited to the accumulated profits of the lender company amounting to Rs. 49,59,14,779/-. This addition was deleted by the CIT(A), who relied on a jurisdictional High Court decision where similar additions were disallowed. The Revenue challenged this deletion before the Tribunal.

The Tribunal noted that while the CIT(A) relied on the High Court decision, the Revenue relied on a recent Supreme Court judgment which held that advances or loans from a closely held company to a shareholder or a concern in which the shareholder holds substantial interest are to be treated as deemed dividend under section 2(22)(e). The Supreme Court's ruling was binding and had not been considered in the CIT(A)'s order.

The Tribunal remanded the issue to the CIT(A) for fresh examination in light of the Supreme Court judgment. The CIT(A) was directed to conduct necessary inquiries regarding the nature of the loan, the application of funds, and whether the lender company was engaged in lending business, as these facts bear on the applicability of section 2(22)(e). The assessee was to be given a proper and fair opportunity to present its case. This approach reflects the principle that the latest binding judicial pronouncements must be applied and that factual inquiries are essential before concluding on the deemed dividend issue.

Relief on Agricultural Income

The Revenue challenged the CIT(A)'s allowance of Rs. 3,00,000/- as agricultural income relief. The CIT(A) had accepted the claim partially based on prior acceptance of agricultural income in earlier years and ownership of agricultural land. The Tribunal found no infirmity in this approach and dismissed the Revenue's ground.

Restriction of Disallowance of Expenses

The Revenue also challenged the CIT(A)'s reduction of disallowance from Rs. 35,00,000/- to Rs. 20,00,000/-. The CIT(A) had reasoned that the Assessing Officer's disallowance was ad-hoc and that a reasonable restriction was appropriate, considering the nature of the business and prior disallowances in related entities. The Tribunal upheld this reasoning and dismissed the Revenue's appeal on this ground.

Significant Holdings

Regarding the deduction under section 80IA, the Tribunal held:

"Considering the totality of the facts and without going into the merits of the case, we deem it appropriate to set-aside the order passed by Ld. CIT(A) with regard to ground no.4 only i.e. in respect of disallowance of deduction claimed by the assessee u/s 80IA of the IT Act and remand the matter back to him with a direction to decide this limited issue only, afresh, as per fact and law, after providing reasonable opportunity of hearing to the assessee."

On the deemed dividend issue under section 2(22)(e), the Tribunal emphasized the binding nature of the Supreme Court's decision and remanded the matter for fresh consideration:

"Under these given facts and circumstances, we deem it appropriate to remit back the issue of addition for deemed dividend u/s 2(22)(e) of the IT Act back to the file of Ld. CIT(A) who shall examine the facts in the light of above judgement of Hon'ble Apex Court in the case of Gopal And Sons (HUF) (supra) and shall also conduct necessary enquiry to examine about the application of alleged funds received by the company... a proper and fair opportunity shall be granted and the issue to be decided in accordance with law."

The Tribunal also upheld the CIT(A)'s partial relief on agricultural income and reduction in disallowance of expenses, recognizing the reasonableness and factual basis of these decisions.

In conclusion, the Tribunal partly allowed the appeals for statistical purposes, remanding critical issues for fresh adjudication with directions to consider relevant evidence and binding judicial precedents, while dismissing other grounds not pressed or found lacking merit.