2012 (9) TMI 611 - AT - Income Tax

Genuineness of amounts payable to land owners - Revenue contended that this claim was later on made by the assessee only after it was found that the claim of deduction u/s 80IB initially raised by the assessee was not sustainable in law - whereas assessee contended that land on which flats were constructed was not sold to the assessee company, there was only an agreement to build flats on the land and as per the agreement, the consideration for the ultimate transfer of land was to be paid in progression to the sale proceeds of the flats constructed by the assessee - Held that - Arguments of assessee are relevant in determining the nature of transactions. It is also to be seen that as per the agreement the land owner had a fifty per cent share in the profits of the project. These matters have not been considered by the Ao. The CIT(Appeals), even though might have appreciated these facts, have not brought out the same in his order. Since both the authorities have discussed only half truth, hence matter is remitted back to the file of the AO Dis-allowance u/s 40(a)(ia) - non-deduction of TDS u/s 194C - Held that - Both the authorities have not examined whether such services were required in the business carried on by the assessee. Matter remitted back to the Assessing Officer for fresh consideration of the issues.

Summary

Issues involved:
- Disallowance of payments to Mr. Alphones Liguouri
- Disallowance under section 40(a)(ia)
- Provision made towards amounts payable to landowners
- Deduction under section 80IB

Disallowance of payments to Mr. Alphones Liguouri:
- The appeal by the assessee for the assessment year 2005-06 raised issues regarding disallowance of payments to Mr. Alphones Liguouri and disallowance under section 40(a)(ia). The disallowance of Rs. 7,95,892 was made as it was deemed not genuinely payable. The second issue was about disallowance of Rs. 2,11,482 under section 40(a)(ia) due to alleged non-deduction of TDS under section 194C. The Assessing Officer disallowed the provisions made for service charges to Mr. Alphones Liguouri and consultancy charges to another individual. The Commissioner of Income-tax(Appeals) upheld the disallowances. The Tribunal found that the lower authorities did not properly consider the necessity of the services provided by Mr. Alphones Liguouri to the assessee's business, and remitted the issue back to the Assessing Officer for fresh consideration.

Disallowance under section 40(a)(ia):
- The disallowance under section 40(a)(ia) was a part of the appeal filed by the assessee for the assessment year 2005-06. The disallowance of Rs. 2,11,482 was made due to alleged non-deduction of TDS under section 194C. The case of the assessee was that TDS was indeed deducted under section 194C, and hence, there was no ground for disallowance. The Tribunal found that the lower authorities did not reach a conclusive finding on this disallowance issue and remitted it back to the Assessing Officer for fresh consideration.

Provision made towards amounts payable to landowners:
- The appeals by both the assessee and the Revenue for the assessment years 2005-06 and 2006-07 involved a provision made by the assessee towards amounts payable to landowners. The Revenue challenged the deduction allowed by the Commissioner of Income-tax(Appeals) for this provision, claiming it was made after the claim under section 80IB was found unsustainable. The Tribunal observed that the lower authorities did not present the complete facts, especially regarding the nature of transactions between the assessee, landowners, and flat buyers. The Tribunal set aside the orders of the lower authorities on this issue and remitted it back to the Assessing Officer for fresh consideration.

Deduction under section 80IB:
- The deduction under section 80IB was initially claimed by the assessee for the assessment years 2005-06 and 2006-07 but was later withdrawn after a survey revealed non-compliance with the conditions. The assessee then made a fresh claim for a deduction against the provision for payments to landowners. The Tribunal found that both the Assessing Officer and the Commissioner of Income-tax(Appeals) did not consider all relevant facts and remitted the issue back to the Assessing Officer for a fresh assessment.

In conclusion, the Tribunal set aside the orders of the lower authorities on all issues raised in the appeals and remitted them back to the Assessing Officer for a fresh and thorough consideration based on the complete facts and evidence provided. The Tribunal emphasized the importance of understanding the nature of transactions and giving the assessee a fair opportunity to present their case.