2025 (7) TMI 121 - AT - Income Tax

Disallowance on interest - Nature of interest paid on refund of amount towards cancellation of Booking or property - Interest being penal in nature or not - AO concluded that interest paid on refund to the allottees is penal in nature and not allowable as deduction u/s 37(1) - HELD THAT - In our considered opinion the same is merely a contractual obligation pursuant to which the assessee had made payment of interest. The modus operandi adopted by the assessee together with the nature of transactions thereon have been duly explained hereinabove. There is absolutely no infringement of law made by the assessee. The payment of interest had arose on account of contractual obligations with the parties whether oral or written and is inextricably linked with the business of the assessee and hence the same is merely compensatory in nature which has been duly deleted by the ld CIT(A) on which we do not find any infirmity. Accordingly the ground 1 raised by the revenue is dismissed. Addition on IBMS and sinking fund - AO observed that once an amount has been charged form the customers it is an income of the assessee and same cannot be transferred to liabilities in the balance sheet thus brought to tax the sum as income of the assessee - CIT(A) considered the receipt of these charges from the customers to be in the nature of security deposit which are transferable to the account of the new purchaser of the shop - HELD THAT - It is not in dispute that the charges on account of IBMS and sinking fund have been collected by the assessee from its customers to whom shops of the mall have been sold. No doubt the assessee has to maintain the entire mall in which it would be entitled to collect the charges from the customers/ shop owners. However no details were filed by the assessee with regard to these security deposits received which were either refunded back to the shop owners on any point of time or getting adjusted towards future contingencies as stated by the ld AR. All said and done as stated these are the receipts in the normal course of business by the assessee from its customers. If the shop owner paid the security deposit to the assessee the same shall have to be refunded back by the assessee to the concerned shop owner in the event of the said shop getting transferred to a new customer. In that scenario it would be justified on the part of the assessee to reflect the receipts as a liability in the balance sheet. But in absence of any details from the side of the assessee as and when these security deposit either got refunded/ adjusted it partakes the character of income in the year of receipt. Hence we uphold the action of the ld AO in this regard and allow ground No. 2 raised by the revenue before us. Addition on account of suppressed sale at Meerut Mall project - AO noted that during the year the assessee had sold the shops at Meerut Mall to different customers at different rates - AO calculated the cost of each shop on dividing the total cost incurred in construction of Meerut Project by the total area of the Mall and arrived at the cost of Rs 2772.54 per sq ft. - CIT(A) observed that the assessee has constructed the total area of 211239 sq ft of shopping mall of which 23954 sq ft is sold during the year under consideration and balance 187284 sq ft area is shown as closing stock - HELD THAT - None of the factual findings given by the ld CIT(A) could be controverted by the revenue with cogent evidence before us. Either way it is only an estimated addition made by the ld AO which have no legs to stand in the facts and circumstances of the instant case. Hence we do not find any infirmity in the order of the ld CIT(A). Accordingly ground No. 3 raised by the revenue is dismissed. Addition on account of unaccounted sales - HELD THAT - This issue is no longer res integra in view of the decision of this Tribunal in assessee s own case 2023 (6) TMI 803 - ITAT DELHI wherein as held addition has been made totally based on conjecture and surmises. Addition on account of transaction recorded outside books as per seized documents - AO made a value of all the notings in the slip pad in the sum as income on substantive basis in the hands of the assessee and on protective basis in the hands of Mr. Rajat Gupta - HELD THAT - We hold that the burden u/s 132(4A) read with Section 292C of the Act had been duly shifted by the assessee to the income tax department right from the time of search which fact also stood corroborated by an affidavit. CIT(A) had noted in his findings that the some of the names mentioned in the slip pad like Mohitji Shri Ram Hari Ram are the persons who were assessed by the same ld AO and that no corresponding action has been taken in their case by the very same ld AO based on the said seized documents Annexure A-2 and no addition has been made in their hands. Thus we do not find any infirmity in the order of the CIT(A) qua this issue. We hold that there cannot be any case of making any addition either substantive or protective either in the hands of the assessee company or in the hands of Rajat Gupta qua this seized document. Hence ground raised by the revenue is dismissed. Late payment of employees contribution towards PF ESI contribution - HELD THAT - This issue is settled against the assessee by the recent decision of Hon ble Supreme Court in the case of Checkmate Services Pvt. Ltd 2022 (10) TMI 617 - SUPREME COURT (LB) Respectfully following the same the ground No. 2 raised by the assessee is dismissed. Addition on the basis of seized documents vide Annexure A-2 - undisclosed investment - a diary was seized vide Annexure A-2 wherein in pages 1 to 8 of the diary certain transactions were recorded which was commercial in nature and the amounts written were in coded form - HELD THAT - AR placed on record copy of the Tribunal in assessee s own case for AYs 2005- 06 2006-07 and 2007-08 2023 (6) TMI 803 - ITAT DELHI respectively wherein the same issue has been considered and Tribunal had deleted the addition made on account of undisclosed investment. Respectfully following the same the Ground No. 1 raised by the assessee is hereby allowed. Disallowance u/s 14A read with Rule 8D of the Income Tax Rules - HELD THAT - CIT(A) in principle upheld the application of the computation mechanism provided in Rule 8D(2) of the Rules but directed the ld AO to consider only those investments which had actually yielded exempt income to the assessee. Accordingly he arrived at the disallowance figure of Rs. 1, 41, 139/- but stated that assessee had already disallowed the same in the return of income and hence there is no need for further disallowance. No contrary findings or factual errors were brought by the revenue before us with cogent evidences. Either way the law is very well settled that only those investments which had actually yielded exempt income to the assessee should be reckoned for the purpose of computing the disallowance of expenses u/s 14A of the Act read with Rule 8D(2) of the Rules. Hence we do not find any infirmity in the order of the ld CIT(A) and accordingly Ground no. 7 raised by the revenue is dismissed.

Summary

1. ISSUES PRESENTED and CONSIDERED

The core legal questions considered by the Appellate Tribunal (AT) in this batch of appeals for assessment years (AY) 2008-09, 2009-10, and 2010-11 involved the following issues:

• Whether the disallowance of interest on cancellation of booking amounts, claimed as part of construction cost, was justified or whether such interest payments were compensatory and allowable under the Income Tax Act.
• Whether amounts collected as IBMS (Interest Bearing Maintenance Security) and sinking fund from customers should be treated as income or as security deposits/liabilities.
• Whether additions on account of alleged suppressed sales at the Meerut Mall project, based on estimated sales values and cost per square foot, were justified.
• Whether additions on account of unaccounted sales, based on seized documents and letters claiming sales incentives, were sustainable.
• Whether additions based on transactions recorded outside books of account in seized slip pads, amounting to substantial sums, were justified, particularly when the assessee claimed the documents belonged to a third party.
• Whether disallowance of late payment of employees' contribution towards PF & ESI was justified.
• Whether disallowance under section 14A of the Income Tax Act read with Rule 8D of the Income Tax Rules, relating to expenses incurred to earn exempt income, was correctly computed.

2. ISSUE-WISE DETAILED ANALYSIS

Interest on Cancellation of Booking (Ground No. 1 for AY 2008-09)

Legal Framework and Precedents: Section 37(1) of the Income Tax Act allows deduction of any expenditure (not being capital expenditure or personal expenses) incurred wholly and exclusively for the purpose of business. Penal interest or fines are generally disallowed.

Court's Interpretation and Reasoning: The AO disallowed Rs. 69,26,040/- as penal interest for delay in allotment refunds, treating it as a penalty. The assessee contended that the interest was contractual and compensatory, forming part of the construction cost and hence allowable.

Key Evidence and Findings: The assessee explained the modus operandi: funds received from allottees were invested in construction; if allottees withdrew, refunds with interest were paid, reflecting the cost of time difference and financial cost incurred.

Application of Law to Facts: The Tribunal found no infringement of law and held the payment as contractual and compensatory, linked to business operations.

Treatment of Competing Arguments: The AO's view of penal nature was rejected as the payments were not punitive but compensatory.

Conclusion: The disallowance was rightly deleted by the CIT(A), and the ground raised by the revenue was dismissed.

IBMS and Sinking Fund (Ground No. 2 for AY 2008-09)

Legal Framework: Amounts collected from customers that are refundable or held as security deposits are liabilities, not income. Income arises when the amount is non-refundable or retained.

Court's Interpretation and Reasoning: The AO treated Rs. 35,93,236/- collected as IBMS and sinking fund as income, since these were charged from customers and not created from the assessee's own funds.

Key Evidence and Findings: The assessee claimed these amounts were security deposits to meet future liabilities and refundable on transfer of shops. However, no details of refund or adjustment were furnished.

Application of Law to Facts: The Tribunal held that in absence of evidence of refund or adjustment, the amounts had the character of income in the year of receipt.

Treatment of Competing Arguments: The CIT(A) considered these as security deposits and deleted the addition, but the Tribunal reversed this, upholding the AO's addition.

Conclusion: The addition was upheld, and the ground was allowed in favor of the revenue.

Suppressed Sale at Meerut Mall Project (Ground No. 3 for AY 2008-09)

Legal Framework: Income tax assessments based on estimated sales must be supported by cogent evidence; mere assumptions or averaging sale rates ignoring commercial realities are not sustainable.

Court's Interpretation and Reasoning: The AO estimated suppression by applying uniform rates per square foot, ignoring location and market factors.

Key Evidence and Findings: The CIT(A) observed that the assessee sold 23,954 sq ft out of 211,239 sq ft constructed, with profit margins evident from accounts. He held that the AO's "one size fits all" approach lacked commercial logic.

Application of Law to Facts: The Tribunal found no cogent evidence to counter the CIT(A)'s findings and held the addition as an estimate without basis.

Treatment of Competing Arguments: The revenue failed to controvert the CIT(A)'s findings with evidence.

Conclusion: The addition was rightly deleted; ground dismissed.

Unaccounted Sales Based on Seized Documents (Ground No. 4 for AY 2008-09)

Legal Framework: Additions on unaccounted sales require concrete evidence, not mere reliance on letters or documents without corroboration.

Court's Interpretation and Reasoning: The AO relied on a letter by a former employee claiming sales incentives, and seized documents to estimate unaccounted sales and profits.

Key Evidence and Findings: The CIT(A) noted that similar additions were deleted in earlier years due to lack of evidence and that no incriminating material was found during search.

Application of Law to Facts: The Tribunal followed its earlier decisions holding that additions based on conjecture and surmise cannot be sustained.

Treatment of Competing Arguments: The revenue's reliance on the letter was rejected as uncorroborated.

Conclusion: Addition deleted; ground dismissed.

Transactions Recorded Outside Books (Slip Pad Entries) (Ground No. 5 for AY 2008-09)

Legal Framework: Under Section 132(4A) and Section 292C of the Income Tax Act, presumption arises that seized documents belong to the searched person, but this is a rebuttable presumption.

Court's Interpretation and Reasoning: The AO made an addition of Rs. 7,75,92,000/- based on slip pad entries seized during search, alleging undisclosed transactions. The assessee claimed the slip pad belonged to a third party, Mr. Saudagar Shah, who dealt in paintings and had filed an affidavit owning the documents.

Key Evidence and Findings: The assessee filed Mr. Saudagar Shah's income tax returns, audit reports, and affidavit. The AO and Investigation Wing did not verify the affidavit or conduct independent enquiries despite having the address and time to do so before Mr. Shah's death.

Application of Law to Facts: The CIT(A) held that the presumption was rebutted and the burden shifted to the AO, who failed to produce contrary evidence. The Tribunal upheld this finding, noting that the affidavit was not tested and that no corresponding additions were made in the cases of other persons named in the slip pad.

Treatment of Competing Arguments: The AO's argument that the slip pad entries did not tally with Mr. Shah's accounts was rejected as illogical, since the slip pad could contain various types of entries beyond sales and purchases.

Conclusion: The addition was deleted; ground dismissed.

Late Payment of Employees' Contribution to PF & ESI (Assessee's Ground No. 2 for AY 2008-09)

Legal Framework: The Supreme Court has held that disallowance for late payment of statutory dues is justified.

Court's Interpretation and Reasoning: The Tribunal followed the Supreme Court decision in Checkmate Services Pvt. Ltd. vs CIT and dismissed the ground raised by the assessee.

Conclusion: Disallowance upheld; ground dismissed.

Addition Based on Seized Diary Entries (Assessee's Ground No. 1 for AY 2008-09)

Legal Framework: Additions based on seized documents require corroboration and must satisfy the burden of proof.

Court's Interpretation and Reasoning: The AO made an addition of Rs. 6,80,000/- based on diary entries interpreted as loan and interest transactions. The Tribunal relied on its earlier decisions deleting similar additions.

Conclusion: Addition deleted; ground allowed.

Disallowance under Section 14A read with Rule 8D (Ground No. 7 for AY 2010-11)

Legal Framework: Disallowance under Section 14A is for expenditure incurred to earn exempt income. Rule 8D provides methods for computation.

Court's Interpretation and Reasoning: The AO made a disallowance of Rs. 30,18,514/-, but the CIT(A) restricted it to Rs. 1,41,139/- considering only investments yielding exempt income.

Application of Law to Facts: The Tribunal upheld the CIT(A)'s approach, noting settled law that only expenses relating to exempt income should be disallowed.

Conclusion: Disallowance reduced and upheld accordingly; ground dismissed.

General Grounds (Grounds No. 6, 7, 8, 9, 10, 11)

These were general in nature and did not require specific adjudication.

3. SIGNIFICANT HOLDINGS

"There is absolutely no infringement of law made by the assessee. The payment of interest had arose on account of contractual obligations with the parties, whether oral or written and is inextricably linked with the business of the assessee and hence the same is merely compensatory in nature."

"In absence of any details from the side of the assessee as and when these security deposit either got refunded/ adjusted, it partakes the character of income in the year of receipt."

"The assumption of the AO, by relying on the principle of 'one size fit all' is beyond any commercial logic and has no legs to stand at all."

"Additions based on conjecture and surmises cannot be sustained."

"The presumption under Section 132(4A) read with Section 292C is rebuttable. The appellant shifted the onus at the very first opportunity on 22.05.2009 during the post search proceedings before the ADI by stating that the slip pad belongs to Mr. Saudagar Shah, but the AO/ADI however did not discharge the same."

"The affidavit filed by Mr. Saudagar Shah was never put to test/ examination/ cross examination by the department. In the absence of such examination, contents of the affidavit had to be construed as true and correct and cannot be rejected at once."

"Only those investments which had actually yielded exempt income to the assessee should be reckoned for the purpose of computing the disallowance of expenses u/s 14A of the Act read with Rule 8D(2) of the Rules."

Final determinations:

• The disallowance of interest on cancellation of booking was deleted as the interest was compensatory and contractual.
• The addition on account of IBMS and sinking fund was upheld as income in absence of evidence of refund or adjustment.
• Additions on suppressed sales and unaccounted sales based on estimates and uncorroborated seized documents were deleted.
• Additions based on seized slip pad entries were deleted upon the assessee rebutting the presumption of ownership with affidavit and supporting documents, and failure of the AO to verify the same.
• Disallowance for late payment of PF & ESI was upheld following Supreme Court precedent.
• Disallowance under section 14A read with Rule 8D was restricted to expenses relating to actual exempt income.