M/s. Gitanjali Promoters Pvt. Ltd., New Delhi V. ACIT, New Delhi

ITA 5398/DEL/2014

• Counselvise Citation: [2020] 110 COUNSELVISE.COM (IT) 6535 (ITAT-DELHI)
• Duration Of Justice: 5 year(s) 11 month(s) 1 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 08-09-2020
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Assessment Year: 2010-2011
• Appeal Filed On: 07-10-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: MSNOUGHT SUNITA SINGH
• Assessee Lawyers: AJAY BHAGWANI
• Keywords: Search and seizure
• Section: 40A(3); 153A; 2

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH: C NEW DELHI SHRI K. NARASIMHA CHARY, JUDICIAL MEMBER AND SHRI B.R.R. KUMAR, ACCOUNTANT MEMBER ITA NO. 5398 /DEL/ 2014 ASSESSMENT YEAR: 2010-11 GEETHANJALI PROMOTERS PVT. LTD, M-11, MIDDLE CIRCLE, CONNAUGHT CIRCUS, NEW DELHI-110001 AA BCG 0237D VS ACIT, CENTRAL CIRCLE -23, NEW DELHI. ASSESSEE BY SH. AJAY BHAGWANI, CA REVENUE BY MSNOUGHT SUNITA SINGH, CIT DR ORDER PER K. NARASIMHA CHARY, JM: AGGRIEVED BY THE ORDER DATED 27/6/2014 IN APPEAL NO . 161/2013-14/1312 PASSED BY THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS)-XXXIII, NEW DELHI (LD. CIT(A) ), FOR THE ASSESSMENT YEAR 2010-11, M/S GEETHANJALIPROMOTERS P RIVATE LIMITED (THE ASSESSEE) FILED THIS APPEAL IN RESPE CT OF THE ADDITIONS MADE ON ACCOUNT OF THE INTEREST ON THE PO ST DATED CHEQUES IN CASH OUTSIDE THE BOOKS OF ACCOUNTS AND A LSO RS. 2 DATE OF HEARING 07.09.2020 DATE OF PRONOUNCEMENT 08 .09.2020 2 LACS UNDER SECTION 40 A (3) OF THE INCOME TAX ACT, 1961 (FOR SHORT THE ACT). DURING THE COURSE OF ARGUMENTS, L D. AR, HOWEVER, NOT PRESSED THE GROUND RELATING TO THE INT EREST ON PDCS AND PROCEEDED TO ARGUE ONLY THE GROUND RELATIN G TO THE ADDITION OF RS. 2 LACS UNDER SECTION 40A(3) OF THE ACT. 2. BRIEF FACTS OF THE CASE IN THIS RESPECT ARE THAT THERE WAS A SEARCH AND SEIZURE OPERATION AT THE VARIOUS PREMISE S IS OF BPTP LTD AND ITS GROUP CONCERNS AND ASSOCIATED PERS ONS, WITH WHICH THE ASSESSEE IS ALSO ASSOCIATED, ON 7/12/2010 AND CONCLUDED ON 5/02/2011. PURSUANT TO THE NOTICE ISSU ED UNDER SECTION 153A OF THE ACT ON 11/01/2012, ASSESSEE FIL ED RETURN OF INCOME ON 30/01/2012 DECLARING A TOTAL LOSS OF RS. 7, 651/-. DURING THE COURSE OF ASSESSMENT, AMONG OTHER THINGS , LEARNED ASSESSING OFFICER NOTICED THAT THE ASSESSEE COMPANY HAD ACQUIRED VARIOUS LANDS FROM FARMERS; AND THAT ON PE RUSAL OF THE DETAILS OF PAYMENTS MADE BY THE ASSESSEE COMPANY FO R ACQUIRING THE LAND FROM FARMERS/VILLAGERS, THE ASSE SSEE MADE PAYMENTS OF TOTAL SALE CONSIDERATION OF RS. 2 LACS IN CASH IN CONTRAVENTION OF SECTION 40A(3) OF THE ACT. ASSESSE E SUBMITTED THAT THE LAND WAS NOT PURCHASED AS STOCK IN TRADE; THAT THE TRANSACTION WAS THE REIMBURSEMENT TO THE ASSESSEE B Y M/S COUNTRYWIDE PROMOTERS PRIVATE LIMITED (CWPPL); THAT THERE IS NO INCOME ELEMENT INVOLVED IN THIS TRANSACTION; THA T NO EXPENDITURE INCURRED ON PURCHASE IN CASH WAS DEBITE D TO THE P&L ACCOUNT OF THE ASSESSEE AND, THEREFORE, THE ASS ESSEE NEVER CLAIMED THE SAME; AND THAT THE REIMBURSEMENT OF COST 3 FOR THE PURCHASE OF LAND AND PAYMENT OF RS. 35,000/ -PER ACRE FARM SEPARATE THE CONSTITUENTS OF THE COLLABORATION AGREEMENT. 3. LEARNED ASSESSING OFFICER, WHILE FOLLOWING THE D ECISION OF THE LD. CIT(A) IN THE CASE OF BUSINESS PARK PROM OTERS PRIVATE LIMITED IN APPEAL NO. 521/2009-10/309 BY OR DER DATED 24/12/2012 HELD THAT SUCH PAYMENT IN CONTRAVENTION OF SECTION 40A(3) OF THE ACT HAS TO BE DISALLOWED, AND ACCORDI NGLY HE DISALLOWED IT AND ADDED IT BACK TO THE INCOME OF TH E ASSESSEE. 4. WHEN THE ASSESSEE PREFERRED APPEAL BEFORE THE LD . CIT(A), THE LD. CIT(A) ALSO PLACED RELIANCE ON HIS DECISION IN THE CASE OF BUSINESS PARK PROMOTERS PRIVATE LIMITED FOR THE ASSESSMENT YEAR 2006-07 AND CONFIRMED THE ADDITION. ASSESSEE IS THEREFORE BEFORE US IN THIS APPEAL. 5. LD. AR SUBMITTED THAT BOTH THE AUTHORITIES BELOW BASED THEIR FINDINGS ON THE DECISION OF THE LD. CIT(A) IN THE CASE OF BUSINESS PARKPROMOTERS PRIVATE LIMITED FOR THE ASSE SSMENT YEAR 2006-07 AND A COORDINATE BENCH OF THIS TRIBUNA L WHILE FOLLOWING THE DECISION OF ANOTHER COORDINATE BENCH IN THE CASE OF WESTLAND DEVELOPERS PVT. LTD VS. ACIT IN ITA NO. 1752 /DEL/ 2013 ORDER DATED 22/08/2014 HELD THE ISSUE IN FAVOU R OF THE ASSESSEE IN BUSINESS PARK PROMOTERS PRIVATE LIMITED FOR THE ASSESSMENT YEAR 2006-07 AND THEREFORE THE VERY BASI S FOR THE ADDITION IS NOT AVAILABLE FOR THE REVENUE TO RELY U PON. HE FURTHER SUBMITTED THAT THE DECISION OF BUSINESS PAR K PROMOTERS PRIVATE LIMITED (SUPRA) AND WESTLAND DEVELOPERS PVT . LTD 4 (SUPRA) OF THE COORDINATE BENCHES OF THIS TRIBUNAL ARE FOLLOWED SUBSEQUENTLY IN A NUMBER OF SIMILARLY PLACED MATTER S. 6. LD. DR PLACED RELIANCE ON THE ORDERS OF THE AUTH ORITIES BELOW ON THIS ASPECT, BUT DOES NOT DISPUTE THE SUBM ISSIONS MADE BY THE LD. AR AS TO THE TRIBUNAL HOLDING THE I SSUE AGAINST THE REVENUE IN WESTLAND DEVELOPERS PVT. LTD (SUPRA) AND BUSINESS PARK PROMOTERS PRIVATE LIMITED (SUPRA) . 7. IT IS THEREFORE, CLEAR THAT A CONSISTENT VIEW HA S BEEN TAKEN BY THE TRIBUNAL IN A NUMBER OF MATTERS UNDER SIMILAR FACTS IN FAVOUR OF THE ASSESSEE AND THE REVENUE IS NOT DISPUTING THE SAME. IN THE ABSENCE OF ANY CHANGE IN THE FACTS OR LAW, IT IS NOT POSSIBLE FOR US TO TAKE A DIFFERE NT VIEW OR TO DISTURB THE CONSISTENT VIEW TAKEN BY THE TRIBUNAL. WITH THIS VIEW OF THE MATTER WE HOLD THE ISSUE IN FAVOUR OF T HE ASSESSEE AND DIRECT THE LEARNED ASSESSING OFFICER TO DELETE THE ADDITION ON ACCOUNT OF SECTION 40A(3) OF THE ACT. 8. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED . ORDER PRONOUNCED IN THE OPEN COURT ON 08 .09.2020. SD/- SD/- (B.R.R. KUMAR) (K.NARASIMHA CHARY) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 08 .09.2020. AS