Remarkable Estates Pvt. Ltd., New Delhi V. ACIT, New Delhi

ITA 768/DEL/2015

• Counselvise Citation: [2018] 126 COUNSELVISE.COM (IT) 3329 (ITAT-DELHI)
• Duration Of Justice: 3 year(s) 1 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 09-03-2018
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: F
• Assessment Year: 2006-2007
• Appeal Filed On: 09-02-2015
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: PARMITA TRIPATHI
• Assessee Lawyers: AJAY BHAGWANI
• Keywords: Search and seizure
• Section: 40A(3); 37

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCHES: F , NEW DELHI BEFORE SHRI RAJENDRA, ACCOUNTANT MEMBER AND SMT. BEENA A PILLAI, JUDICIAL MEMBER ITA NO. 768 /DEL/201 5 AY: 200 6 - 07 REMARKABLE ESTATES P LTD. M 11, MIDDLE CIRCLE CONNAUGHT CIRCUS NEW DELHI 110 001 PAN: AA ACR5555N VS . A CIT CENTRAL CIRCLE 2 3, E - 2 ARA CENTRE, JHANDEWALAN EXTENSION NEW DELHI 110 055 (APPELLANT) (RESPONDENT) APPELLANT BY : SH. AJAY BHAGWANI, C.A. RESPONDENT BY : SMT. PARMITA TRIPATHI , CIT, DR DATE OF HEARING : 06.03.2018 DATE OF PRONOUNCEMEN T : 09 .03.2018 ORDER PER BEENA A PILLAI, JUDICIAL MEMBER T HE PRESENT APPEAL HAS BEEN FILED BY THE ASSESSEE AGAINST ORDER DATED 31/10/14 PASSED BY LD.CIT(A) - 33, NEW DELHI FOR ASSESSMENT YEAR 2006 - 07 ON THE FOLLOWING GROUNDS OF APPEAL: 1. THAT THE ORDERS PASSED BY THE ASSESSING OFFICER AND COMMISSIONER OF INCOME TAX (APPEALS) - XXXIII, NEW DELHI ARE BAD IN LAW AND VOID AB - INITIO. 2. THAT THE C IT(A) ERRED IN UTILIZING THE MATERIAL SEIZED IN THE COURSE OF SEARCH ON BPTP GROUP OF CASES (EXCLUD ING APPELLANT) ON 15.11.2007 WHICH DID NOT BELONG TO THE APPELLANT. ITA NO. 768/DEL/2015 AY: 2006 - 07 REMARKABLE ESTATES P LTD. VS. ACIT 2 2.1. THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW THE CIT(A) HAS ERRED IN HOLDING THAT WHEREVER THE DATE OF PDCS ARE EXTENDED, INTEREST IS TO BE TAKEN TO HAVE BEEN PAID @ 1 5% P.A IN CASH OUTSIDE THE BOOKS OF ACCOUNT AND IS TO BE TREATED AS UNDISCLOSED INCOME. 2.2. THAT NO ENQUIRIES WERE MADE FROM ANY OF THE ALLEGED RECIPIENTS OF THE INTEREST AND NONE WAS CONFRONTED WITH THE RELEVANT DOCUMENT(S). 2.3 . T HAT THE ADDITION WA S UNWARRANTED BEING BASED MERELY ON SURMISES AND CONJECTURES WITHOUT PROOF AND CORROBORATION BY INDEPENDENT EVIDENCE. 3. T HAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW THE CIT(A) ERRED IN NOT ACCEPTING THE APPELLANT'S CONTENTION THAT ADDITIONA L PAYMENTS HAVING NOT BEEN CLAIMED AS DEDUCTION BY APPELLANT, NO DISALLOWANCE COULD HAVE BEEN MADE IN THE HANDS OF THE APPELLANT. 3.1. THAT WITHOUT PREJUDICE THE CIT(A) ERRED IN UPHOLDING THE DISALLOWANCE OF ADDITIONAL PAYMENTS MADE TO THE RECIPIENTS WHO WERE NOT THE OWNERS OF LAND AND TO THE PAYMENT MADE IN CASH. 3.2. T HAT WITHOUT PREJUDICE THE C IT (A) ERRED IN NOT HIMSELF QUANTIFYING TH E ADDITION TO BE MADE. 4. THAT ON THE FACTS AND CIRCUMSTANCE OF THE CASE AND IN LAW THE CIT(A) ERRED IN SUSTAINING THE DISALLOWANCE OF RS.72, 000 / - U/S 40A(3) OF THE IT ACT DESPITE THE FACT THAT NO DEDUCTION IN RESPECT OF SAID SUM WAS CLAIMED IN THE COMPUTATION OF INCOME FROM BUSINESS. 4.1THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE CIT{A} ERRED IN CONFIRMING THE DISALLOWANCE U/ S 40A{3} OF RS.72,000/ - DESPITE THE FACT THAT SIMILAR DISALLOWANCE MADE UNDER SIMILAR CIRCUMSTANCES WAS DELETED BY ITAT VIDE ORDER DATED 22.08.2014 IN ITA NO.1752/DE L/L 2013 IN CASE OF M/S WESTLAND DEVELOPER PVT. LTD FOR THE AY 2006 - 07 BEING A GROUP COMPANY COPY OF WHICH ORDER WAS FILED BEFORE THE CIT{A} AND WHOSE FACTS WERE AKIN TO THE FACTS OF THE APPELLANT COMPANY. ITA NO. 768/DEL/2015 AY: 2006 - 07 REMARKABLE ESTATES P LTD. VS. ACIT 3 THE APPELLANT CRAVES PERMISSION TO ADD, AMEND, ALTER OR VARY ALL OR ANY GROUNDS OF APPEAL ON OR BEFORE THE DATE OF HEARING OF THE APPEAL. 2. BRIEF FACTS OF THE CASE ARE AS UNDER: A SEARCH AND SEIZURE OPERATION WAS CARRIED OUT IN VARIOUS PREMISES OF M/S. BPTP LTD AND ITS GROUP COMPANIES AND ASSOCIATED PERSONS . DURING THE COURSE OF ASSESSMENT PROCEEDINGS, LD.AO NOTICED THAT ASSESSEE ACQUIRE D LANDS FROM FARMERS. FURTHER, ON PERUSAL OF DETAILS OF PAYMENTS MADE BY ASSESSEE FOR ACQUIRING LAND FROM FARMERS/VILLAGERS, LD.A.O. NOTICED THAT ASSESSEE MADE PART PAYMENT OF TOTAL SALE CONSIDERATION IN CASH AS UNDER. SALE DEED NO. & DT. NAME OF VENDOR A MOUNT OF CASH PAYMENT RS. 8645 & 15.9.2005 AMARPAL 50000 7365 & 25.8.2005 MAHENDRA 210000 7366 & 25.08.2005 SUKHPAL 100000 TOTAL CASH PAID 3,60,000 THUS OUT OF TOTAL SALE CONSIDERATION OF RS.9,98,48,571/ - A SUM OF RS.3,60,000/ - WAS PAID IN CASH, WHICH IS IN CONTRAVENTION OF S.40A(3) OF THE ACT . ACCORDINGLY, VIDE ORDER SHEET ENTRY DT. 28.2.2013, ASSESSEE W AS ASKED TO EXPLAIN AS TO WHY THE PROVISIONS OF S.40A(3) MAY NOT BE APPLIED TO THE EXPENDITURE INCURRED BY IT IN CASH , FOR ACQUIRING LAND FROM FARMERS/VILLAGERS AND THE SAME MAY NOT BE DISALLOWED AS PROVIDED IN THE SAID SECTION. ITA NO. 768/DEL/2015 AY: 2006 - 07 REMARKABLE ESTATES P LTD. VS. ACIT 4 LD.AO AFTER CONSIDERING SUBMISSIONS BY ASSESSEE HELD THAT CONTRAVENTION OF S.40A(3) IS NOT COVERED BY THE EXCEPTIONS REFERRED TO IN RULE 6DD. HENCE, 20% I.E. RS.72,000/ - PAID IN CASH FOR ACQUIRING LAND IS IN CONTRAVENTION OF S.40A(3), IS DISALLOWED AND ADDED BACK TO THE INCOME OF ASSESSEE COMPANY. (ADDITION RS.72,000/ - ). 2.1. AGGRIEVED BY THE ADDITION MADE BY LD. AO ASSESSEE PREFERRED APPEAL BEFORE LD. CIT (A). BEFORE LD. CIT (A) ASSESSEE SUBMITTED AS UNDER: 5.1 THE ASSESSEE COMPANY ENTERED INTO A COLLABORATION AGREEMENT WITH M/S. COUNTRYWIDE PROMOTERS PVT. LTD. (HEREINAFTER REFERRED TO AS 'CWPPL'') . COPY PLACED AT PAGE 30 - 42 OF PAPER BOOK. AS PER THIS AGREEMENT, CWPPL WERE TO DEVELOP/CONSTRUCT AN INTEGRATED TOWNSHIP AND AGREED TO REIMBURSE ASSESSEE ALL COSTS AND EXPENSES INCURRED BY THE ASSESSEE WITH RESPECT TO ITS ACQUISITION OF CONCERNED LAND. THE COLLABORATOR AGREED TO MAKE PAYMENT TO THE ASSESSEE BY WAY OF CONSOLIDATED FEE TO BE CALCULATED @ RS. 35,000/ - PER ACRE OF THE LAND PAYABLE ON RECEIPT OF LICENSE. IT WAS ALSO AGREED THAT COLLABORATOR SHALL SHARE 100% OF BUILT UP AREA OVER THE SAID LAND. 5 .2 DURING THE YEAR UNDER CONSIDERATION, THE ASSESSEE PURCHASED LAND PURSUANT TO COLLABORATION AGREEMENT AND OUT OF TOTAL AMOUNT PAID FOR PURCHASE OF LAND, A SUM OF RS.3,60,000 / - WAS PAID IN CASH EXCEEDING RS.20,000 / - . IT IS A MATTER OF RECORD THAT THE ENTI RE SUM SO PAID FOR THE ACQUISITION OF LAND WAS REIMBURSED TO THE ASSESSEE BY CWPPL. THE ASSESSEE RECEIVED FEES CALCULATED @ RS. 35,000 / - PER ACRE WHICH WAS DULY RECORDED IN THE BOOKS OF ACCOUNT OF THE ASSESSEE AS ITS INCOME. THUS THE ONLY INCOME WHICH AROS E TO THE ASSESSEE WAS THE SAID FEE RECEIVED FROM CWPPL . ON THESE FACTS THE ASSESSING OFFICER CALLED UPON THE ASSESSEE TO EXPLAIN WHY DISALLOWANCE OF THE SAID SUM PAID IN CASH SHOULD NOT BE MADE U/S ITA NO. 768/DEL/2015 AY: 2006 - 07 REMARKABLE ESTATES P LTD. VS. ACIT 5 40A(3) OF THE IT ACT. (COPY OF ACCOUNT WITH COUNTRYWIDE P ROMOTERS IS PLACED AT PAGES 51 OF PAPER BOOK) 5.3 A DETAILED SUBMISSION WAS FILED VIDE LETTER DATED 04.03.2013, A COPY OF WHICH IS AT PAGE NO. 22 - 29 OF THE PAPER BOOK. THE CRUX OF THE SUBMISSION WAS : SECTION 40A(3) APPLIES WHERE THE ASSESSEE HAS INCU RRED ANY EXPENDITURE IN A SUM EXCEEDING RS. 20,000/ - OTHERWISE THAN BY CROSSED CHEQUE/DEMAND DRAFT. IN THE PRESENT CASE THE SUM PAID TOWARDS PURCHASE OF THE LAND WAS NOT EXPENDITURE IN THE HANDS OF THE ASSESSEE AND WAS NOT CLAIMED AS DEDUCTION. THE L AND PURCHASED WAS NOT A STOCK - IN - TRADE IN THE HANDS OF ASSESSEE. THE ENTIRE EXPENDITURE INCURRED ON PURCHASE OF LAND WAS REIMBURSED TO THE ASSESSEE BY M / S. COUNTRY WIDE PROMOTERS PVT. LTD. (CWPPL). IT IS SETTLED PROPOSITION THAT REIMBURSEMENT UNDER NO CIRCUMSTANCES CAN BE REGARDED AS A REVENUE RECEIPT. THE AMOUNT PAID IN CASH WAS NOT DEBITED TO THE PROFIT & LOSS A/C AND WAS NOT CLAIMED AS AN EXPENDITURE . 2.2. BASED ON THE ABOVE SUBMISSIONS BY ASS ESSEE LD. CIT (A) DECIDED THE ISSUE BY OBSERVING AS UNDER: 7.3. I HAVE CONSIDERED THE ASSESSMENT ORDER , WRITTEN SUBMISSION S AND ARGUMENTS OF LD.AR ON THIS ISSUE. THE FACTS AND CIRCUMSTANCES ARE SIMILAR TO VARIOUS CASES OF BPTP GROUP FOR DISALLOWANCE OF ADDITIONAL PAYMENT. I HAVE DECIDED VARIOUS APPEALS IN BPTP GROUP OF CASES. THE FINDINGS IN ONE OF APPEAL NAMELY M/S BUSINESS PARK PROMOTER P LTD. (APPEAL NO.521/2009 - 10/309 DATED 24.12.2012) FOR ASSESSMENT YEAR 2006 - 07 IS AS UNDER. I HAVE CONSIDERED TH E ASSESSMENT ORDER , ARGUMENT OF LD. AR. TO DECIDE THE ISSUE OF DISALLOWABILITY U/S 40A (3) POINTED OUT BY LEARNED AR. IT IS PROPER TO EXAMINE THE TERMS OF COLLABORATION AGREEMENT AND ITA NO. 768/DEL/2015 AY: 2006 - 07 REMARKABLE ESTATES P LTD. VS. ACIT 6 FACTS OF THE CASE. THE APPELLANT PURCHASES THE LAND FROM VARIOUS FARMERS/ LAND OWNERS IN ITS OWN NAME BY ENTERING INTO SALE DEED. REGISTRATION IS DONE IN THE NAME OF APPELLANT. THE PAYMENT IS MADE BY APPELLANT. AS PER THE COLLABORATION AGREEMENT, THE APPELLANT COMPANY WOULD ACQUIRE THE LAND AND TRANSFER 100% OF ITS DEVE LOPMENT RIGHT TO M / S CWPPL. THE APPELLANT COMPANY IS SHOWN AS OWNER OF THE LAND. IN LIEU OF TRANSFERRING THE DEVELOPMENT RIGHT, THE APPELLANT COMPANY GETS COST OF LAND PLUS RS. 35,000 PER ACRE FOR CWPPL. THIS BEING THE CASE, WHAT IS TRANSFERRED IS THE DEVE LOPMENT RIGHT, THE OWNERSHIP REMAINS WITH APPELLANT. THEREFORE, IT IS DIFFICULT TO ACCEPT THE LD. AR'S CONTENTION THAT THE COST OF LAND IS REIMBURSED BY CWPPL. IF THE LAND WOULD HAVE BEEN SOLD TO CWPPL, VIEW MIGHT HAVE BEEN THAT THE APPELLANT IS ONLY WORKI NG AS AN AGENT OF CWPPL AND EXPENDITURE PERTAINS TO CWPPL AND THE APPELLANT IS ONLY RECEIVING THE COST OF LAND AS REIMBURSEMENT OF EXPENDITURE. I AGREE WITH THE FINDING OF A.0. THAT OWNERSHIP CONTINUES WITH THE APPELLANT AND ONLY DEVELOPMENTAL RIGHT IS TRA NSFERRED TO CWPPL. IN THAT SCENARIO, THE APPELLANT COMPANY CAN BE SAFELY TERMED AS ENGAGED IN THE BUSINESS OF DEVELOPMENT OF REAL ESTATE. WHAT HE RECEIVES I.E. COST OF LAND AND RS. 35,000 PER ACRE IN RECEIPT IN ITS HAND FOR THE TRANSFER OF DEVELOPMENT RIGH T AND THE PAYMENT FOR PURCHASE F LAND IS ITS EXPENDITURE. ON THESE FACTS, IN MY OPINION THE PAYMENT MADE TO LAND OWNER IS EXPENSE IN APPELLANTS HAND AND ENTIRE RECEIPTS INCLUDING COST OF LAND PLUS RS. 35,000 PER ACRE IS REVENUE RECEIPT IN ITS HAND. AS COST OF LAND IS AN EXPENDITURE IN APPELLANT'S HAND, SECTION 40A(3) IS APPLICABLE, AS THE EXPENDITURE HAS BEEN INCURRED. THIS EXPENDITURE IS NOT CLAIMED EXPLICITLY IN ITS PROFIT & LOSS ALE AS THE RECEIPT AND PAYMENT TO THE SAME EXTENT GETS SQUARED UP TO THE EXT ENT OF COST OF LAND. THIS ACCOUNTING TREATMENT CANNOT OVERRIDE THE TRUE NATURE OF TRANSACTION. IT IS SETTLED LAW THAT THE PROVISION OF INCOME TAX ACT WOULD PREVAIL OVER THE SYSTEM OF ACCOUNTING. RELIANCE IS PLACED ON HON'BLE SUPREME COURT DECISION IN THE C ASE OF TUTICORIN ALKALIE S CHEMICALS AND FERTILIZERS LTD. VS CIT, (1997) 227ITR 0172. 7.3.1 IN VIEW OF THE ABOVE POSITION JUDICIAL PRONOUNCEMENT RELIED UPON BY LD. AR ON ALL THREE COUNTS ARE NOT APPLICABLE NAMELY. ITA NO. 768/DEL/2015 AY: 2006 - 07 REMARKABLE ESTATES P LTD. VS. ACIT 7 1. EXPENDITURE IS NOT INCURRED BY APPELLA NT, THEREFORE SECTION 40A (3) DOES NOT APPLY. 2. SUCH PAYMENT IS NOT CLAIMED AS EXPENDITURE IN ITS PROFIT & LOSS A /C . AS THERE IS NO CLAIM OF EXPENDITURE, SEC 40A (3) DOES NOT APPLY. 3. WRITTEN AGREEMENT OF COLLABORATION AGREEMENT CANNOT BE OVERTAKEN BY ORAL EVIDENCE. IT MAY BE STATED THAT TERMS OF COLLABORATION AGREEMENT HAS NOT BE OVERRIDDEN BY A O . HE HAS ONLY ANALYZED THE TERMS OF THE AGREEMENT, AND BY ANALYZING THE TERM OF AGREEMENT, HE HAS GIVEN THE FINDING THAT APPELLANT IS IN THE BUSINESS OF ACQU IRING LAND AND ITS DEVELOPMENT THROUGH CWPPL AND THEREFORE, PAYMENT MADE TO FARMER/SELLER OF LAND IS AN EXPENDITURE IN APPLICANT'S HAND. ACCORDINGLY SECTION 40A (3) IS APPLICABLE. AFTER CONSIDERING ENTIRE FACTS AND CIRCUMSTANCES OF THE CASE, I UPHOLD THE ADDITION MADE BY ASSESSING OFFICER; THEREFORE, THIS GROUND OF APPEAL IS HEREBY DISMISSED. SIMILAR ADDITION WAS UPHELD IN MANY CASES OF BPTP GROUP INCLUDING M / S WEST LAND DEVELOPERS (P) LTD, LD. AR HAS RELIED UPON THE DECISION OF HON'BLE ITAT, DELHI IN THE CASE OF ITS GROUP CONCERNS NAMELY WEST LAND DEVELOPERS PVT. LTD VS. ACIT IN ITA NO.1752 / DE1 / 20 3 DT.31.1 0.2014. HON'BLE ITAT HAS DELETED THE ADDITION FOR DISALLOWANCE U/S 40A(3) AND ADDITIONAL PAYMENT U/S 37 ON THE GROUND THAT SUCH PAYMENT MADE WAS NEVER CLAIMED AS EXPENSE BY THE ASSESSEE. LD. AR ARGUED THAT THE FACTS ARE SIMILAR IN THIS ALSO. I HAVE CONSIDERED THE APPLICABILITY OF THE ORDER OF HON'BLE IT AT IN ABOVE CITED CASE IN EARLIER GROUND OF ADDITIONAL PAYMENT AND DECIDED THAT DISALLOWANCE U / S 40A (3) CANNOT BE DELETED RESPECTFULLY DISAGREEING WITH THE DECISION OF HO N BLE ITAT, ON ACCOUNT OF NONCLAIM OF EXPENSE IN THE PROFIT AND LOSS ACCOUNT ITA NO. 768/DEL/2015 AY: 2006 - 07 REMARKABLE ESTATES P LTD. VS. ACIT 8 ACCORDINGLY, RELYING ON MY DECISION IN THE CASE OF M / S BUSINESS PARK PROMOTERS PVT. LTD, REPRODUCED EARLIER, THE ADDITION ON ACCOUNT OF DISALLOWANCE U/S 40A(3) IS CONFIRMED. THESE GROUNDS OF APPEAL ARE DISMISSED. 3. AGGRIEVED BY THE ORDER OF LD.CIT (A), ASSESSEE IS IN APPEAL BEFORE US NOW. 3.1. AT THE OUTSET LD.AR SUBMITTED THAT GROUND NUMBERS 1, 2, 2.1, 2.2, 2.3, 3, 3.1, 3.2 AND 5 ARE NOT PRESSED. 3.2. HENCE THE SAME ARE DISMISSED AS NOT PRESSED . 3. 3 . LD.AR SUBMITTED THAT THIS ISSUE NOW STANDS SQUARELY COVERED BY VARIOUS ORDERS OF THIS T RIBUNAL FORMING PART OF BPTP GROUP. HE SUBMITTED THAT THE DECISION RE LIED UPON BY LD. CIT (A) IN THE CASE OF B USINESS PARK P ROMOTERS PVT.LTD., FOR ASSESSMENT YEAR 2006 - 07 HAS ALSO BEEN DECIDED BY THIS TRIBUNAL IN ITA NO. 1768/DEL/2013 AND 1503/DEL/2013 VIDE ORDER DATED 29/04/15. HE SUBMITTED THAT THIS T RIBUNAL WHILE DECIDIN G THE CASE OF M/S COUNTRYWIDE PROMOTERS PVT. LTD., HAS LISTED ALL THE DECISIONS OF THIS TRIBUNAL WHEREIN THIS ISSUE HAS BEEN DEALT WITH WHICH IS PLACED AT PAGE 67 - 101 OF PAPER BOOK. LD.AR PLACED RELIANCE UPON PAGE 94 - 97 WHEREIN THE ISSUE HAS BEEN DECIDED. 3.3. WHEREAS LD. D R PLACED RELIANCE UPON THE ORDERS OF AUTHORITIES BELOW. 4. WE HAVE PERUSED THE SUBMISSIONS ADVANCED BY BOTH THE SIDES IN THE LIGHT OF THE RECORDS PLACED BEFORE US. WE HAVE ALSO REFERRED TO ITA NO. 768/DEL/2015 AY: 2006 - 07 REMARKABLE ESTATES P LTD. VS. ACIT 9 THE ORDER PASSED BY THIS T RIBUNAL IN THE CASE OF M/S COUNTRYWIDE P ROMOTERS PVT. LTD. (SUPRA). IT IS OBSERVED THAT THE DETAILS OF ALL THE DECISIONS WHEREIN THIS ISSUE HAS BEEN CONSIDERED BY THIS T RIBUNAL HAS BEEN LISTED. IT IS ALSO OBSERVED THAT THE DECISION RELIED UPON BY LD. CIT (A) TO DISALLOW THE CLAI M OF THE ASSESSEE HAS ALSO BEEN DECIDED BY THIS T RIBUNAL IN ASSESSEE S FAVOUR IN ITA NO. 1768/DEL/2013 AND 1530/DEL/2013 FOR ASSESSMENT YEAR 2006 - 07. A REFERENCE OF THIS DECISION HAS BEEN FOUND AT PAGE 96 OF THE ORDER IN THE PAPER BOOK. 4.1. IT IS OBSERVE D THAT THIS TRIBUNAL HAS DECIDED THIS ISSUE IN THE CASE OF M/S COUNTRYWIDE PROMOTERS PVT. LTD. BY FOLLOWING THE OTHER DECISIONS INCLUDING BUSINESS PARK PROMOTERS PVT.LTD., (SUPRA) FOR ASSESSMENT YEAR 2006 - 07 AS UNDER: 10.4. WE HAVE CONSIDERED SUBMISSIONS MADE BY THE PARTIES AND PERUSED MATERIAL MADE AVAILABLE ON RECORD. IN WESTLAND DEVELOPERS P LTD. (SUPRA) ON IDENTICAL FACTS IT WAS HELD AS UNDER. 10.10. WE HAVE ALSO TAKEN OURSELVES THROUGH THE JUDGEMENT OF THE JURISDICTIONAL HIGH COURT IN CIT VS. INDUSTRIAL ENGINEERING PROJECTS P . LTD. (CITED SUPRA) WHICH HAS BEEN RELIED UPON BEFORE US FOR THE PROPOSITION THAT REIMBURSEMENT OF EXPENSES CANNOT BE TREATED TO BE REVENUE RECEIPT. HOW THE JUDGEMENT OF THE APEX COURT IN TUTICORIN ALKALI CHEMICALS & FERTILIZERS IS APPLICABLE TO THE FACTS OF THE PRESENT CASE HAS NOT BEEN SET OUT IN THE ORDER OF THE AUTHORITIES NOR HAS THE LD. DR BEEN ABLE TO ADDRESS THE APPLICABILITY OF THE SAID JUDGEMENT TO THE ISSUE AT HAND. WE HAVE TAKEN OURSELVES THROUGH THE SAI D ITA NO. 768/DEL/2015 AY: 2006 - 07 REMARKABLE ESTATES P LTD. VS. ACIT 10 JUDGEMENT AND SEEN THAT IT PROCEEDS ON ENTIRETY DIFFERENT FACTS AND CIRCUMSTANCES AND HAS NO APPLICABILITY TO THE FACTS OF THE PRESENT CASE. CONSEQUENTLY, IT IS SEEN THAT FROM THE RATIO OF THE JUDGEMENTS RELIED UPON BEFORE THE CIT(A) AND ALSO BEFORE US W HICH HAVE BEEN DISCUSSED IN THE EARLIER PART OF THIS ORDER NO ARGUMENTS HAVE BEEN ADVANCED BY THE REVENUE SO AS TO CONTEND HOW THEY ARE NOT APPLICABLE TO THE CASE AT HAND, NO DISTINGUISHING FACT, CIRCUMSTANCE OR POSITION OF LAW HAS BEEN RELIED UPON SO AS T O COME TO A CONTRARY FINDING THAN THE ONE ARRIVED AT. ACCORDINGLY ON A CONSIDERATION OF THE PECULIAR FACTS AND CIRCUMSTANCES OF THE CASE AND THE JUDGEMENTS RELIED UPON CONSIDERING THE RELEVANT PROVISION OF THE ACT NAMELY SECTION 40A(3), WE HOLD FOR THE DET AILED REASONS GIVEN HEREINABOVE THAT SECTION 40A(3) OF THE ACT HAS BEEN WRONGLY INVOKED AS ADMITTEDLY' NO EXPENSES RELATABLE TO THE ADDITION HAS BEEN CLAIMED AND THE ASSESSEE HAS SUCCESSFULLY DEMONSTRATED THAT THE PAYMENT WERE REIMBURSEMENT MADE BY CWPPL. ACCORDINGLY GROUND NO.4 IS ALLOWED. ' 10.5. AS FACTS OF CASE OF ASSESSEE ARE SIMILAR AND IDENTICAL TO THE VARIOUS CASES DECIDED BY COORDINATE BENCHES OF TRIBUNAL, NEW DELHI DETAILS OF WHICH ARE GIVEN ABOVE WHERE SIMILAR DISALLOWANCE BY FOLLOWING THE ORD ER IN CASE OF M/S WESTLAND DEVELOPERS P LTD. (SUPRA) AS AFORESAID IS DELETED BY VARIOUS COORDINATE BENCHES OF THE TRIBUNAL, NEW DELHI, THE GROUND NO.5 IS ALLOWED AND DISALLOWANCE OF CASH PAYMENT MADE U/S 40A(3) IS DELETED AS ASSESSEE HAS NOT CLAIMED ANY DE DUCTION IN RESPECT OF CASH PAYMENT MADE. ITA NO. 768/DEL/2015 AY: 2006 - 07 REMARKABLE ESTATES P LTD. VS. ACIT 11 4.2. AS FACTS OF THE PRESENT ASSESSEE BEFORE US ARE SIMILAR TO THE FACTS REITERA TED IN THE DECISION OF THIS TRIBUNAL IN THE CASE OF M/S. COUNTRYWIDE P ROMOTERS PVT. LTD. AND VARIOUS OTHER CASES DECIDED BY C OORDINATE B ENCHES OF THIS T RIBUNAL , WHEREIN SIMILAR DISALLOWANCE HAS BEEN DELETED BY FOLLOWING THE CASE OF M/S WESTLAND D EVELOPERS PVT. LTD IN ITA NO. 1752/DEL/2013 VIDE ORDER DATED 22/08/14 FOR ASSESSMENT YEAR 2006 - 07, THIS GROUND RAISED BY ASSESSEE IS ALLOWED. 5. IN THE RESULT APPEAL FILED BY THE ASSESSEE STANDS PARTLY ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 0 9 . 0 3 . 2 0 1 8 . S D / - S D / - (R AJENDRA ) (BEENA A PILLAI) ACCOUNTANTMEMBER JUDICIAL MEMBER DT. 0 9 . 0 3 . 2018 M V ITA NO. 768/DEL/2015 AY: 2006 - 07 REMARKABLE ESTATES P LTD. VS. ACIT 12 COPY FORWARDED TO: - 1 . APPELLANT 2 . RESPONDENT 3 . CIT 4 . CIT(A) 5 . DR, ITAT - TRUE COPY - BY ORDER, ASSISTANT REGISTRAR ITAT DELHI BENCHES