2025 (6) TMI 1949 - AT - Income Tax

Disallowance on account of material expense and on account of plot development expense - Addition made as some of the parties did not respond to the notice of the AO - MOU entered into by the assessee with RNTC the assessee was not obliged to incur these expenses AND RNTC had claimed expenses in their books of account for common work such as development of common amenities club house road construction etc. and that as per the development agreement the role of the assessee was to execute those work on behalf of RNTC - CIT(A) deleted addition - HELD THAT - From the perusal of ledger account of RNTC brought on record in the paper-book it is found that the assessee had debited the account of RNTC in respect of Garden Expense Common Amenity Expense Club House Preparing Expense and Road Construction Labour. Thus the common expenditure for the development of common facilities such as road common amenities garden clubhouse etc. was borne by RNTC and not by the assessee company. Therefore the finding as given by the AO in this respect is not found correct. The assessee had brought on record supplementary agreement between the assessee and RNTC which was not considered by the AO. As per the supplementary agreement certain expenses such as construction including compound wall land filling and levelling as per the customer requirement of individual plots was to be incurred by the assessee for which it was entitled to charge Rs. 100/- per sq. meter from the respective plot owners. The ledger account of the administrative and development income brought on record in the paper-book reflects the party-wise details of income received from various parties towards development charges. Against this income the assessee had incurred total expenses of Rs. 4, 51, 00, 181/- (Rs.1, 91, 00, 181/- for material purchased as per the Schedule S-14 Rs. 2.62 Crores towards plot development expense as per Schedule S-15). The assessee had accordingly earned net income of Rs. 46 Lakhs out of administrative and development income. In view of these facts the disallowance of material expense and plot development expenses as made by the AO was totally misconceived. Merely because some of the parties did not respond to the notice of the AO the entire expenditure cannot be held as non-genuine. It is found that the Ld. CIT(A) had correctly appreciated the facts of the case and thereafter had rightly allowed the relief to the assessee. We do not find anything wrong with the findings as given by the Ld. CIT(A) in respect of these two additions. The ground nos.1 2 taken by the Revenue are dismissed. Disallowance of commission/brokerage expense - DR submitted that this brokerage was paid to four parties at varying rates from Rs. 50/- per sq. yard to Rs. 200/- per sq. yard of plot area sold - DR further submitted that as per the development agreement RNTC was the actual owner of the land and therefore commission paid was to be claimed as deduction by RNTC and not by the assessee - whether the assessee was required to pay any commission at all in these transactions? - HELD THAT - As per the development agreement the entire land owned by the assessee was purchased by RNTC. If so there was no question of payment of any commission for the sale of land as made by the assessee. Expenditure incurred as per clause-7 of the agreement was for registration of new members and not for the sale of plot of land which was already sold by the assessee to RNTC as per the development agreement. Since the ownership of the land was vested with RNTC the commission for sale of individual plots was to be borne by the RNTC and not by the assessee. Under the circumstances we do not find any justification for claim of expenditure of commission/brokerage towards sale of land. The contention of the assessee that this commission was in essence discount towards bulk purchase of land is self-contradictory and cannot be held as correct. If it was discount the same was required to be deducted from the sale consideration of land and there was no requirement for deduction of any TDS on such discount. The action of the AO in disallowing the commission expense and reducing the same from the capitalized closing stock of land is upheld. The ground taken by the Revenue is allowed.

Summary

The core legal questions considered by the Tribunal in this appeal pertain to the correctness of the disallowance of certain expenses claimed by the assessee in the assessment year 2011-12 under the Income Tax Act, 1961. Specifically, the issues are:

1. Whether the disallowance of Rs. 1,52,90,000/- on account of material expenses debited in the books of the assessee but allegedly paid by the co-developer (Ravi (Hansol) NTC) was justified.

2. Whether the disallowance of Rs. 2,40,00,000/- on account of plot development expenses, similarly debited but claimed to have been paid by the co-developer, was correct.

3. Whether the disallowance of Rs. 30,30,000/- on account of commission/brokerage expenses paid for sale of plots was warranted, considering the terms of the development agreement and the nature of the transactions.

Issue-wise Detailed Analysis:

Issues 1 and 2: Disallowance of Material Expenses and Plot Development Expenses

Relevant Legal Framework and Precedents: The assessment was conducted under Section 143(3) of the Income Tax Act, 1961, which empowers the Assessing Officer (AO) to examine the correctness of claimed expenses. The principle of allowability of expenses requires that the expenses must be incurred wholly and exclusively for the purpose of business. Further, the genuineness and correctness of the expenses claimed are subject to verification and corroboration by documentary evidence and third-party confirmations.

Court's Interpretation and Reasoning: The AO disallowed the material expenses of Rs. 1,52,90,000/- and plot development expenses of Rs. 2.60 Crores on the ground that, per the Memorandum of Understanding (MOU) dated 27.12.2008 between the assessee and Ravi (Hansol) NTC (RNTC), these expenses were to be borne by RNTC and not by the assessee. The AO's reasoning was that the assessee had debited these expenses in its books despite the MOU's stipulation that RNTC would pay for development of common amenities, roads, club house, etc.

However, the Tribunal noted that the assessee had produced a supplementary development agreement dated 29.01.2009, which was not considered by the AO. This supplementary agreement authorized the assessee to incur certain expenses for individual plot owners, including construction of compound walls, land filling, and leveling as per customer requirements, for which the assessee was entitled to charge Rs. 100/- per sq. meter from the respective plot owners.

The Tribunal observed that the assessee had disclosed administrative and development income of Rs. 4,90,18,400/- from plot owners, which was supported by ledger accounts and party-wise details. Against this income, the assessee incurred expenses aggregating to Rs. 4,51,00,181/-, including the material and plot development expenses in question, resulting in a net income of approximately Rs. 46 Lakhs.

Further, the Tribunal found that the common development expenses for amenities such as roads, gardens, and club house amounting to Rs. 2,23,42,961/- were borne by RNTC, as reflected in the ledger accounts, thereby negating the AO's presumption that the assessee had borne these costs.

The genuineness of the expenses was also supported by confirmations from most parties in response to notices under Sections 133(6) and 131 of the Act, except for a few non-respondents, which was insufficient to discredit the entire expenditure.

Application of Law to Facts: The Tribunal applied the principle that expenses legitimately incurred in the course of business and supported by documentary evidence and corroboration should be allowed. The supplementary agreement and the income-expenditure matching on administrative and development charges demonstrated the validity of the expenses.

Treatment of Competing Arguments: While the Revenue relied on the primary MOU and the AO's findings to argue that these expenses were not incurred by the assessee, the assessee's reliance on the supplementary agreement and detailed accounting records was found more persuasive. The Tribunal held that the AO's disallowance was based on an incomplete appreciation of facts and documents.

Conclusions: The Tribunal upheld the CIT(A)'s order deleting the disallowance of Rs. 1,52,90,000/- on material expenses and Rs. 2.60 Crores on plot development expenses, dismissing the Revenue's grounds 1 and 2.

Issue 3: Disallowance of Commission/Brokerage Expense of Rs. 30,30,000/-

Relevant Legal Framework and Precedents: Deductibility of commission or brokerage expenses depends on their genuineness, necessity, and whether they were incurred wholly and exclusively for business purposes. The terms of the development agreement and the ownership of the land are critical to determining whether such expenses are allowable.

Court's Interpretation and Reasoning: The AO disallowed the commission expense on the basis that the commission rates varied widely (Rs. 50/- to Rs. 200/- per sq. yard), the commission amounted to approximately 31% of the sale consideration, which was abnormally high, and that since RNTC was the actual owner of the land, any commission related to sale should be borne by RNTC and not the assessee. The AO also questioned the genuineness of the payments, noting that some recipients were family members or buyers themselves.

The assessee contended that the commission was payable under Clause 7 of the development agreement, which allowed the assessee to appoint agents to register new members and incur related expenses such as advertising and promotion. The assessee argued that these payments were not commission on sale of land but expenses related to registration and promotion activities.

The Tribunal examined Clause 7, which permitted the assessee to launch schemes, develop and construct according to its choice, advertise, and appoint agents to register new members at its own expense. The Tribunal held that the commission payments related to registration of members and promotional activities, not to the sale of land, which had already been sold to RNTC.

However, the Tribunal found that since the ownership of the land had vested with RNTC, the commission for sale of individual plots should be borne by RNTC, not the assessee. The Tribunal rejected the assessee's contention that the commission represented a discount on bulk purchase, noting that if it were a discount, it should have been deducted from sale consideration and no TDS would be applicable. Further, the development agreement did not provide for any discount.

Application of Law to Facts: The Tribunal applied the principle that expenses must be incurred in the course of business and must be allowable under the terms of the agreement. Since the land was sold to RNTC, and the commission related to sale of plots by RNTC, the expense was not allowable to the assessee.

Treatment of Competing Arguments: The Tribunal rejected the assessee's argument based on Clause 7 as the clause pertained to promotional activities and registration of new members, not to payment of commission on land sales. The Tribunal also found the AO's concerns regarding the rate and recipients of commission to be valid.

Conclusions: The Tribunal upheld the AO's disallowance of Rs. 30,30,000/- commission expense and reversed the CIT(A)'s deletion of this addition, allowing the Revenue's ground 3.

Significant Holdings:

On the disallowance of material and plot development expenses, the Tribunal stated:

"The disallowance was made on wrong presumption and without correctly appreciating the facts of the case and the supplementary development agreement. In fact, the expenditure incurred by the assessee was also verified by the AO in the course of assessment by issue of notice/summon under Section 133(6)/131 of the Act and most of the parties, barring few, has confirmed the transactions."

On the commission expense, the Tribunal held:

"Since the ownership of the land was vested with RNTC, the commission for sale of individual plots was to be borne by the RNTC and not by the assessee. Under the circumstances, we do not find any justification for claim of expenditure of commission/brokerage of Rs. 30.30 Lakhs towards sale of land... The contention of the assessee that this commission was, in essence, discount towards bulk purchase of land is self-contradictory and cannot be held as correct."

Core principles established include the necessity to consider all agreements and supplementary documents to correctly determine the nature and party responsible for expenses, and that expenses must be consistent with the terms of the agreement and supported by evidence to be allowable. The Tribunal emphasized that mere non-response by some parties to verification notices does not invalidate the genuineness of expenses confirmed by others.

Final determinations on each issue are:

• Disallowance of material expenses of Rs. 1,52,90,000/- and plot development expenses of Rs. 2.60 Crores was not justified and was rightly deleted by the CIT(A); the Tribunal upheld this deletion.
• Disallowance of commission/brokerage expenses of Rs. 30,30,000/- was justified as per the terms of the development agreement and facts; the Tribunal reversed the CIT(A)'s deletion and upheld the AO's disallowance.