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M/s Vidyasagar Enterprises LLP (Formerly Vidyasagar Investments Private Limited) Versus The Pr. Comm. of Income Tax -13

2015 (12) TMI 462 - ITAT MUMBAI

Revision u/s 263 - CIT held that the AO has failed to verify the correctness of loss declared by the assessee company in the construction project - Held that:- AO after discussions made additions u/s 40(a)(ia) of the Act with respect to payment made directly by the buyer M/s Silverline Enterprise to M/s Sarovar Developers Private Limited on behalf of the assessee company being out of court settlement amount without deduction of TDS which was considered by the AO as having paid towards the develo .....

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circumstances surrounding this project which is the sole project undertaken by the assessee company, while framing the assessment order dated 01-03-2013 u/s 143(3) of the Act.

The AO accepted the loss sustained by the assessee company in this project to be allowed to be set off against other income of the assessee after application of mind and considering relevant material on record which was one of the plausible view taken by the AO which view cannot be considered as an erroneous vi .....

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countant Member This appeal by the assessee company is directed against the Order by the Principal Commissioner of Income Tax-13, Mumbai (Hereinafter called "the CIT ) dated 26th March 2015 passed u/s 263 of Income Tax Act,1961 (Hereinafter called "the Act") for the assessment year 2010-11. 2. The Brief facts of the case are that the assessee company case was selected for scrutiny and the assessment order dated 01st March 2013 was passed by the Assessing Officer (Hereinafter calle .....

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on 7th July 2009. The records reveal that while the cost of construction is ₹ 12,054 per sq. meter, the selling price is ₹ 10,832.38 per sq. meter. ii) The creditworthiness of the purchaser M/s Silverline Enterprise is not verified by the Assessing Officer by analysis of bank account statements and ledger accounts of this party. 4. The assessee company replied before the CIT in proceedings u/s 263 of the Act as under: - There was a dispute between the assessee company and the develop .....

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d observed that the Assessing Officer has not examined these two issues as per the CIT show cause notice dated 13th March 2015, in the course of assessment proceedings and they have important bearing on the assessment of the correct income of the assessee company. The CIT held that the AO has failed to verify the correctness of loss declared by the assessee company in the construction project.The CIT held that the assessee company has shown cost of construction of housing projects at Plot No. 91 .....

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377; 1,70,07,861/-, the assessee company has shown gross total income only of ₹ 3,40,927/- and after claim of TDS of ₹ 27,54,028/, assessee company has claimed refund of ₹ 22,90,571/-. These facts reveals that on account of loss in respect of housing project, the actual effect of rental income and interest income of ₹ 1,70,07,861/- has been negated. The AO has not investigated the facts from this angle nor has he made any enquiry from the purchasing party. The AO has also .....

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O. has cross summoned M/s Silverline Enterprise, verified entire deal and collected the entire information including creditworthiness of M/s. Silverline Enterprise which must be on record. The CIT called for and examined the assessment records and observed that the AO has issued two notices u/s 133(6) of the Act calling for details from M/s. Silverline Enterprise which notices were duly served but there are no evidence on record of compliances of these notices and hence, creditworthiness of M/s .....

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filed appeal before us. 7. The assessee company submitted before us that the assessee company has only one project at Gandhinagar, Gujarat and the assessee company purchased land from the M/s Sarovar Developers Pvt. Ltd. vide agreement dated 25-01-2008 for ₹ 1,16,49,300/- (inclusive of the registration charges and stamp duty). The assessee company submitted that it entered into development agreement with M/s Sarovar Developers Pvt. Ltd. for ₹ 6,75,60,000/- vide agreement dated 25-01 .....

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t which was registered as Suit no. C.S.No. 144 of 2009. Due to delays in getting the requisite clearances and the suit filed against the assessee company, the afore-stated project was struck and there was delay in the project whereby the costs escalated and the assessee company start looking for the buyer to sell the entire project and finally got the buyer M/s Silverline Enterprise to sell the entire project for ₹ 7,98,00,000. The said buyer mediated between the assessee company and M/s S .....

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ar Developers Pvt. Ltd. for which the necessary orders were passed by Hon ble Add. Sen. C.J.Gandhinagar on 20th May 2009 in suit no. R.C.S No. 144 of 09 disposing of the suit as withdrawn. The assessee company submitted that the sale agreement dated 07th July 2009 was entered into between M/s. Silverline Enterprise and the assessee company whereas the developer M/s Sarovar Developers Pvt. Ltd. became the confirming party and balance payment was received from the said Buyer Silverline Enterprise .....

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nt proceedings u/s 143(3) of the Act, there was discussions at length by the AO about this project which is the only one project undertaken by the assessee company and the Revenue has all the details about this project before it while framing original assessment order dated 01.03.2013 u/s 143(3) of the Act. The assessee company drew our attention to the para 2 & 3 of the assessment order u/s 143(3) of the Act dated 01-03-2013 which are reproduced below and reads as under wherein the project .....

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Gandhinagar, Gujarat for development to M/s.Sarovar Developers Pvt. Ltd. vide development agreement dtd. 25.1.2008. Sarovar developers Pvt. Ltd. had agreed to construct a building for the assessee as per approved plans for a consideration of ₹ 6,75,60,000/ -. The assessee had paid ₹ 6,05,60,000/ - to the contractor and ₹ 70 Lacs remained outstanding. Thereafter a dispute arose between, the assessee and the contractor regarding obtaining B.U.(Building Usage) permission for the .....

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der: 3.2 Reply dated.11.2.2013: "As regards to the payment of ₹ 75,00,000/- to M/s. Sarovar Developers Pvt. Ltd. by M/s. Silver Enterprises, the payment was not paid towards construction but the said payment is the settlement amount as per the out of court settlement succeeding the suit No. 144/209 filed by M/s. Sarovar Developers Pvt. Ltd. Ltd. in the court of 5th Additional senior Civil judge, Gandhinagar, Gujrat,. The relevant papers have already been submitted and are on your reco .....

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kind attention to the Clause No. 3(c) on Page no. 6 of Development Agreement dated 25.01.2008 which reads as under - (Copy of Relevant page enclosed marked as Annexure-1). "Balance amount of ₹ 70,00,000/- (Rupees Seventy Lacs only) within 10 days from getting Building Use permission / Occupation Certificate from the concern authorities without any omission, delay or default for any reason". Since the Developer has not obtained the Business Use Permission (BUP)/ Occupation certifi .....

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by the buyer as mentioned in the sale deed is as per out of court settlement in-order to get sale deal through by withdrawing the suit filed by the developer. Further the payment of ₹ 75,00,000/- was a settlement amount which can further be confirmed from the cancellation deed which is already on your record and not a contractual payment. We are enclosing herewith the relevant part of the cancellation deed marked as Annexure-2. The said amount of ₹ 75,00,000/- was neither paid by the .....

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al through. In view of the above, there seems no reasons to disallow the expenses u/s. 40(a)(ia) of the Income Tax Act, 1961. Without prejudice to the above The real sales consideration received by the assessee company is ₹ 7,23,00,000/- (Rs.7,98,00,000/-less ₹ 75,00,000/-) and not ₹ 7,98,00,000/-. The Sum of ₹ 75,00,000/- lakh paid by M/s. Silverline Enterprises - the buyer of the said property directly to M/s. Sarovar Developers Pvt. Ltd - the developer is towards out o .....

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two options - l)to account for the net amount of ₹ 7,23,00,000/- as sale value of the said property 2) to account for the gross sale and show the short receipt of ₹ 75,00,000/- towards expenses and the best possible account head was development charges. The assessee is correctly accounted as per the second option. In view of the above there is no reason that the said amount of ₹ 75,00,000/- be disallowed u/s. 40(a)(ia) of The Income Tax Act, 1961." 3.3 Assessee's reply .....

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194C. In its letter dtd.1l.2.2013 the assessee has clearly stated that it has deducted tax at source on payment of ₹ 6,05,60,000/ -.Thus the contention that ₹ 75 lacs is not part of this contract consideration is factually incorrect. Although the dispute arisen with the contractor was settled out of court the essence of payment is the original development contract for construction of building. As the assessee failed to pay the balance contractual consideration of ₹ 70 lacs to t .....

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nding contractual consideration from assessee and no further obstacle by contractor against sale of building. Hence it cannot be said that payment was made for out of court settlement and not towards construction. Once it is established that the payment has been made for construction work it attracts provisions of section 194C. 3.4 Moreover it is mentioned in the Settlement Agreement that payment of ₹ 75,00,000/ - was towards the development of the said property." The relevant clause .....

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ue to circumstances beyond control of both B.U. permission has not been received. Hence, it is agreed between the first party and the second party that tile first party will pay ₹ 75,00,000/- including interest as a full and final settlement towards the development towards the development of the said property." 3.5 From the above it can be seen that out of ₹ 75,00,000/- debited by the assessee an amount of ₹ 70,00,000/ - pertains to the balance consideration payable as per .....

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as not been made by the assessee company but paid by the buyer directly to M/s. Sarovar Developers Pvt. Ltd. to defend its stand of not effecting TDS is not tenable, The buyer, M/ s. Silverline Enterprise purchased the building so constructed from the assessee for total consideration of ₹ 7,98,00,000/ - vide agreement dtd.7.7.2009.Out of the agreed total consideration Silverline Enterprise paid ₹ 75,00,000/ - to M/s. Sarovar Developers Pvt. Ltd on behalf of and at the behest of asses .....

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the Second Party towards full and final payment of all their dues/outstanding including interest for delayed payment etc. under the said Development Agreement." b) Agreement dtd.7.7.2009 "Thereafter the confirming party (M/s. Sarovar Developers Pvt. Ltd) had filed suit No. 144/2009 before 5th Addl. Senior Civil Judge, Gandhinagar Against Vidyasagar Investments Pvt. Ltd., for recovering the balance development charges and as per the instruction of Vendor(Vidyasagar Investments Pvt. Ltd .....

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of section 194C. Hence the assessee cannot escape the responsibility cast upon it under section 194C on the ground that the payment was made by M/s. Silverline Enterprise when it was paid on the specific instruction of the assessee company. Applicability of Section 194C 3.8 Without prejudice to the above the provisions of section 194C and applicability in the instant case is discussed as under: Section 194C. lays down that " Any person responsible for paying any sum to any resident (hereaft .....

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an individual or a Hindu undivided family; (ii) two per cent where the payment is being made or credit is being given to a person other than an individual or a Hindu undivided family, Of such sum as income-tax on income comprised therein." 3.9 On plain reading of the section it is understood that a person responsible for paying any sum to any resident for carrying out any work in pursuance of a contract between the contractor and a specified person, he has to deduct tax at the time of cred .....

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t TDS on such payment under section 194C. Although the payment of ₹ 75,00,000/- has been made by M/s. Silverline Enterprise the same has been made on behalf of the assessee under the development agreement. Hence payment made by Silver Line does not alter the nature of expenditure in the hands of the assessee. For the assessee it was payment made for development of property i.e. for construction of building. Even if Silverline Enterprises had paid to the assessee the amount of ₹ 75 la .....

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at source u/s.194C, on the said payment. Hence the expenditure of ₹ 75,00,000/-is hereby disallowed u/s. 40(a)(ia) of the Income Tax Act, 1961 and added back to the total income of the assessee. I am satisfied that this is a fit case for initiating penalty u/s 271(1)(c). Penalty proceedings u/s. 271(1)(c) of the Income Tax Act, 1961 are initiated for furnishing inaccurate particulars of Income." Thus, the assessee company submitted that the AO had before it all the relevant details ab .....

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assessment proceedings and accordingly loss was allowed by the AO. The assessee company also submitted that the additions of ₹ 75,00,000/- made by the AO in the assessment order dated 01.03.2013 u/s 143(3) of the Act on account of failure of the assessee company to deduct TDS on payment of out of court settlement amount directly by M/s Silverline Enterprise to M/s Sarovar Developers Private Limited on behalf of the assessee company has already been deleted by Hon ble Mumbai Tribunal in ITA .....

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f this project after due application of mind and considering all relevant material which was on records and is part of assessment records. The assessee company submitted that proceedings u/s 263 of the Act are bad in law as the AO has already accepted the cost of construction of the project and consequent loss incurred by the assessee company after due application of mind and allowed the loss to the assessee company in original assessment proceedings u/s 143(3) of the Act which culminated into o .....

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neous nor prejudicial to the interest of revenue and the orders dated 26th March 2015 passed u/s 263 of the Act by CIT are bad in law and liable to be set aside 8. The Ld. DR on the other hand relied upon the orders dated 26th March 2015 u/s 263 of the Act of the CIT and submitted that the cost of construction of the project needs to be verified as held by the CIT in his orders dated 26th March 2015 u/s 263 of the Act. The Ld. DR relied upon decision of Hon ble Supreme Court in Malabar Industria .....

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hence the assessment orders dated 01-03-2013 u/s 143(3) of the Act is erroneous and prejudicial to the interest of Revenue which has been rightly set aside by the CIT with directions to consider these matter afresh and frame fresh assessment order. The Ld. DR contended that so far as observation of CIT to verify credit worthiness of Buyer is concerned, the same is not pressed before the Tribunal. 9. We have considered the rival contentions, perused the material on record and case laws relied upo .....

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/s Sarovar Developers Private Limited to file suit against the assessee company for recovery of their dues in the court of Hon. Principal Civil Judge of Gandhinagar, Gujarat which was registered as suit no. C.S.No. 144 of 2009 and it is mainly the delay in receipt of clearances and subsequent court litigations which escalated costs and consequent losses suffered by the assessee company. The assessee company has submitted that then it decided to sell the entire project which was struck due to abo .....

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entered into deed of cancellation as well deed of rectification both dated 20th May 2009 with M/s Sarovar Developers Pvt. Ltd.. The said Buyer M/s Silverline Enterprise paid ₹ 75,00,000/- directly to M/s. Sarovar Developers Pvt. Ltd. being the out of court settlement amount and the suit was withdrawn by M/s Sarovar Developers Pvt. Ltd. for which the orders were passed by Hon ble Add. Sen. C.J.Gandhinagar on 20th May 2009 in suit no. R.C.S No. 144 of 09 disposing of the suit as withdrawn. .....

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account extra ordinary expenses of interest and settlement amount, which loss was claimed as business loss by the assessee company in the return of income filed with Revenue. We have also observed that there are discussions in the order of assessment dated 1-3-2013 u/s 143(3) of the Act passed by AO whereby the details about this project are discussed by the AO. Reference to para 2 & 3 of the assessment order u/s 143(3) of the Act dated 01-03-2013 which are reproduced below establish that t .....

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Gujarat for development to M/s.Sarovar Developers Pvt. Ltd. vide development agreement dtd. 25.1.2008. Sarovar developers Pvt. Ltd. had agreed to construct a building for the assessee as per approved plans for a consideration of ₹ 6,75,60,000/ -. The assessee had paid ₹ 6,05,60,000/ - to the contractor and ₹ 70 Lacs remained outstanding. Thereafter a dispute arose between, the assessee and the contractor regarding obtaining B.U.(Building Usage) permission for the said building. .....

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dated.11.2.2013: "As regards to the payment of ₹ 75,00,000/- to M/s. Sarovar Developers Pvt. Ltd. by M/s. Silver Enterprises, the payment was not paid towards construction but the said payment is the settlement amount as per the out of court settlement succeeding the suit No. 144/209 filed by M/s. Sarovar Developers Pvt. Ltd. Ltd. in the court of 5th Additional senior Civil judge, Gandhinagar, Gujrat,. The relevant papers have already been submitted and are on your records. The said .....

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to the Clause No. 3(c) on Page no. 6 of Development Agreement dated 25.01.2008 which reads as under - (Copy of Relevant page enclosed marked as Annexure-1). "Balance amount of ₹ 70,00,000/- (Rupees Seventy Lacs only) within 10 days from getting Building Use permission / Occupation Certificate from the concern authorities without any omission, delay or default for any reason". Since the Developer has not obtained the Business Use Permission (BUP)/ Occupation certificate (OC) from .....

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s mentioned in the sale deed is as per out of court settlement in-order to get sale deal through by withdrawing the suit filed by the developer. Further the payment of ₹ 75,00,000/- was a settlement amount which can further be confirmed from the cancellation deed which is already on your record and not a contractual payment. We are enclosing herewith the relevant part of the cancellation deed marked as Annexure-2. The said amount of ₹ 75,00,000/- was neither paid by the assessee comp .....

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view of the above, there seems no reasons to disallow the expenses u/s. 40(a)(ia) of the Income Tax Act, 1961. Without prejudice to the above The real sales consideration received by the assessee company is ₹ 7,23,00,000/- (Rs.7,98,00,000/-less ₹ 75,00,000/-) and not ₹ 7,98,00,000/-. The Sum of ₹ 75,00,000/- lakh paid by M/s. Silverline Enterprises - the buyer of the said property directly to M/s. Sarovar Developers Pvt. Ltd - the developer is towards out of court settle .....

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l)to account for the net amount of ₹ 7,23,00,000/- as sale value of the said property 2) to account for the gross sale and show the short receipt of ₹ 75,00,000/- towards expenses and the best possible account head was development charges. The assessee is correctly accounted as per the second option. In view of the above there is no reason that the said amount of ₹ 75,00,000/- be disallowed u/s. 40(a)(ia) of The Income Tax Act, 1961." 3.3 Assessee's reply has been peru .....

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etter dtd.1l.2.2013 the assessee has clearly stated that it has deducted tax at source on payment of ₹ 6,05,60,000/ -.Thus the contention that ₹ 75 lacs is not part of this contract consideration is factually incorrect. Although the dispute arisen with the contractor was settled out of court the essence of payment is the original development contract for construction of building. As the assessee failed to pay the balance contractual consideration of ₹ 70 lacs to the contractor .....

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ual consideration from assessee and no further obstacle by contractor against sale of building. Hence it cannot be said that payment was made for out of court settlement and not towards construction. Once it is established that the payment has been made for construction work it attracts provisions of section 194C. 3.4 Moreover it is mentioned in the Settlement Agreement that payment of ₹ 75,00,000/ - was towards the development of the said property." The relevant clause at page 4 of t .....

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ances beyond control of both B.U. permission has not been received. Hence, it is agreed between the first party and the second party that tile first party will pay ₹ 75,00,000/- including interest as a full and final settlement towards the development towards the development of the said property." 3.5 From the above it can be seen that out of ₹ 75,00,000/- debited by the assessee an amount of ₹ 70,00,000/ - pertains to the balance consideration payable as per original cont .....

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de by the assessee company but paid by the buyer directly to M/s. Sarovar Developers Pvt. Ltd. to defend its stand of not effecting TDS is not tenable, The buyer, M/ s. Silverline Enterprise purchased the building so constructed from the assessee for total consideration of ₹ 7,98,00,000/ - vide agreement dtd.7.7.2009.Out of the agreed total consideration Silverline Enterprise paid ₹ 75,00,000/ - to M/s. Sarovar Developers Pvt. Ltd on behalf of and at the behest of assessee towards de .....

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rty towards full and final payment of all their dues/outstanding including interest for delayed payment etc. under the said Development Agreement." b) Agreement dtd.7.7.2009 "Thereafter the confirming party (M/s. Sarovar Developers Pvt. Ltd) had filed suit No. 144/2009 before 5th Addl. Senior Civil Judge, Gandhinagar Against Vidyasagar Investments Pvt. Ltd., for recovering the balance development charges and as per the instruction of Vendor(Vidyasagar Investments Pvt. Ltd.) remaining d .....

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C. Hence the assessee cannot escape the responsibility cast upon it under section 194C on the ground that the payment was made by M/s. Silverline Enterprise when it was paid on the specific instruction of the assessee company. Applicability of Section 194C 3.8 Without prejudice to the above the provisions of section 194C and applicability in the instant case is discussed as under: Section 194C. lays down that " Any person responsible for paying any sum to any resident (hereafter in this sec .....

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or a Hindu undivided family; (ii) two per cent where the payment is being made or credit is being given to a person other than an individual or a Hindu undivided family, Of such sum as income-tax on income comprised therein." 3.9 On plain reading of the section it is understood that a person responsible for paying any sum to any resident for carrying out any work in pursuance of a contract between the contractor and a specified person, he has to deduct tax at the time of crediting of such .....

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payment under section 194C. Although the payment of ₹ 75,00,000/- has been made by M/s. Silverline Enterprise the same has been made on behalf of the assessee under the development agreement. Hence payment made by Silver Line does not alter the nature of expenditure in the hands of the assessee. For the assessee it was payment made for development of property i.e. for construction of building. Even if Silverline Enterprises had paid to the assessee the amount of ₹ 75 lacs then also, .....

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194C, on the said payment. Hence the expenditure of ₹ 75,00,000/-is hereby disallowed u/s. 40(a)(ia) of the Income Tax Act, 1961 and added back to the total income of the assessee. I am satisfied that this is a fit case for initiating penalty u/s 271(1)(c). Penalty proceedings u/s. 271(1)(c) of the Income Tax Act, 1961 are initiated for furnishing inaccurate particulars of Income." The AO after discussions made additions of ₹ 75,00,000/-u/s 40(a)(ia) of the Act with respect to p .....

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