An ad hoc disallowance for alleged bogus creditors is invalid if the taxpayer provides complete supporting evidence to prove the genuineness of the transactions.

Issue

Can an Assessing Officer make a substantial ad hoc disallowance for alleged bogus creditors if the taxpayer provides comprehensive documentary evidence, including invoices, bank statements, and TDS records, to prove the genuineness of the transactions?

Facts

The assessee, a construction company, had outstanding balances for various sundry creditors.
The Assessing Officer (AO) sent notices to these creditors, and many of them came back unserved. Based on this, the AO made a 50% ad hoc addition to the assessee’s income, treating half of the expenditure as bogus.
The assessee, however, produced a full and comprehensive set of documents to prove the transactions. This included ledger accounts, bills and invoices, bank statements showing that the payments were made, and Form 16A showing that the required Tax Deducted at Source (TDS) had been deposited with the government.

Decision

The court ruled in favour of the assessee.

It held that since the assessee had provided complete and comprehensive evidence to substantiate the payments and the business purpose of the contracts, the AO’s ad hoc addition, which was based on mere suspicion, was erroneous and legally unsustainable. The addition was therefore directed to be deleted.

Key Takeways

Hard Evidence Trumps Suspicion: Comprehensive documentary evidence, such as invoices, bank payment records, and TDS compliance records, is very strong proof of a genuine transaction. It cannot be overturned by an AO’s suspicion, especially an ad hoc one that is not based on any specific finding.
Ad Hoc Additions are Generally Invalid: Making a disallowance of a flat percentage (like 50%) without pointing to any specific defects in the evidence provided by the assessee is an arbitrary method of assessment that is not upheld by the courts.
The Onus Shifts to the AO: Once the assessee provides the primary evidence to support their claim, the onus shifts to the Assessing Officer. The AO must then bring on record concrete and specific proof to show that the transaction is a sham. The fact that a notice is returned unserved can be a starting point for an inquiry, but it is not a conclusion in itself.

A difference between the book balance of two parties is not a valid reason for an addition to income if that difference is fully and satisfactorily explained by reconciling items like TDS and retention money.

Issue

Can an addition be made to a taxpayer’s income for a difference between their books of account and a creditor’s confirmation, if that difference can be fully explained by standard accounting and business items like Tax Deducted at Source (TDS) and retention money?

Facts

The Assessing Officer (AO) noticed that the balance shown as due to two parties in the assessee’s books did not perfectly match the confirmations received from those parties. Based on this difference, the AO made an addition to the assessee’s income. The assessee, in the appeal, submitted a reconciliation statement. This statement clearly showed that the difference was not due to any unaccounted transaction, but was made up of two items: TDS that had been deducted by the assessee and retention money that was being held back as per the terms of the contract.

Decision

The court ruled in favour of the assessee. It held that since the difference in the book balance had been fully and satisfactorily reconciled by the assessee, there was no basis for making any addition to the income.

Key Takeways

Reconciliation is the Key: Mismatches between the books of a debtor and a creditor are a common and normal occurrence in business. A proper reconciliation statement is the correct accounting tool to explain and resolve these differences.
TDS and Retention Money are Valid Reconciling Items: It is standard business practice for a payer’s books to show the full gross amount of an expense, while the payee’s confirmation might only show the net amount they have actually received after TDS, or the amount they are currently entitled to receive after excluding any retention money. These are perfectly valid reconciling items.

Temporary site installation expenses that are necessary for the operation of a business are a deductible revenue expenditure in the year in which they are incurred.

Issue

How should temporary site installation expenses, which are incurred for a specific construction project, be treated for tax purposes—should they be deferred and claimed over the life of the project, or should they be claimed as an expense in the year they are incurred?

Facts

An assessee, a construction company, had incurred temporary site installation expenses. For its own internal accounting purposes, it chose to allocate these expenses over a period of four years in order to better match the expenses with the project’s revenue.

Decision

The court ruled in favour of the assessee, clarifying the correct legal position. It held that since these expenses were necessities for the operation of the business, they were a revenue expenditure. As such, they should be allowed as a deduction in the year in which they were incurred.

Key Takeways

Revenue vs. Deferred Revenue Expenditure: Expenses that are necessary for the day-to-day operation of a project, even if they are for a temporary site setup, are generally considered to be revenue expenses and are deductible in the year the liability for them is incurred.
Tax Treatment Can Differ from the Accounting Treatment: A company might choose to defer certain expenses in its books of account for the purpose of presenting a smoother profit trend (the matching principle). However, for income tax purposes, the allowability of an expense is determined by the provisions of the Income-tax Act, which generally allows revenue expenses in the year they are incurred under the mercantile system.

A provisional expense that is booked on an accrual basis is a deductible expense if the taxpayer has correctly deducted and deposited the TDS on it.

Issue

Can a business expenditure be disallowed under Section 40(a)(ia) of the Income-tax Act, 1961, simply because it has been booked as a “provisional expense,” even if the taxpayer has fully complied with the TDS provisions on that amount?

Facts

The assessee, who followed the mercantile system of accounting, had booked certain provisional expenses on an accrual basis at the end of the year. This is often done when the service has been received but the final bill has not yet arrived.
The assessee had duly deducted the applicable TDS on this provision and had deposited it with the government within the prescribed time. They also furnished the TDS certificates (Form 16A) as proof of this compliance.
The Assessing Officer (AO) disallowed these expenses under Section 40(a)(ia), likely on the grounds that the expenses were merely “provisional.”

Decisin

The court ruled in favour of the assessee. It held that since the assessee had booked the expenses on a valid accrual basis and, more importantly, had fully complied with the TDS provisions by deducting and depositing the tax, there was no violation of Section 40(a)(ia). The addition was therefore directed to be deleted.

Key Takeways

The Purpose of Section 40(a)(ia) is to Enforce TDS: The primary purpose of this section is to ensure TDS compliance. It is a penal provision that is triggered by the failure to deduct or pay TDS. It is not meant to be a tool to disallow an expense simply because it is labeled as “provisional” in the books of account.
TDS Compliance Cures the Defect: The moment the TDS has been correctly deducted and deposited with the government, the primary condition of the section is met, and no disallowance can be made. The revenue’s interest has been protected.

A disallowance for excess cash payments under Section 40A(3) is invalid if a factual verification by the AO themselves proves that no single payment exceeded the statutory limit.

Issue

Can a disallowance for excess cash payments be legally sustained under Section 40A(3) of the Income-tax Act, 1961, if a factual verification of the bills and vouchers shows that no single payment to any party on any given day exceeded the prescribed limit?

Facts

The Assessing Officer (AO) initially made a disallowance under Section 40A(3), alleging that the assessee had made cash payments that were in excess of the prescribed limit (which was ₹20,000 at the time).
However, during remand proceedings, the assessee produced the full list of persons to whom payments were made, along with all the supporting bills and vouchers.
After examining this evidence, the AO themselves gave a categorical finding in their remand report that no cash payment exceeding ₹20,000 was made to a single party during the entire financial year.

Decision

The court ruled in favour of the assessee, upholding the Commissioner (Appeals)’s direction to delete the addition. Since the AO’s own detailed verification proved that there was no factual violation of the provisions of Section 40A(3), the disallowance had no legal basis and was correctly deleted.

Key Takeways

Section 40A(3) is Transaction-Specific: The disallowance under this section is triggered only if a payment, or an aggregate of payments made to a single person in a single day, exceeds the prescribed limit. It is not a general ban on the use of cash in a business.
Facts are Stubborn Things: The AO’s own factual finding in the remand report, which was made after a detailed examination of the evidence, completely demolished the basis of the original addition. An addition cannot be sustained when it is factually incorrect.

A loss that is incurred on account of business assets becoming dormant and unusable due to the closure of project sites is an allowable revenue loss, not a capital loss.

Issue

Is the loss incurred by a business on account of its assets (like temporary structures and small equipment) becoming dormant and unusable due to the closure of its project sites a non-deductible capital loss, or is it an allowable revenue loss?

Facts

The assessee, a construction company, had debited an amount in its accounts for assets (like temporary structures and small equipment) that had become dormant and unusable because various project sites had been permanently closed.
The assessee had incorrectly labeled this loss as “amortization expenses” in its books.
The Assessing Officer (AO) seized on this and disallowed the claim, arguing that it was a capital loss, which is generally not deductible as a business expense.

Decision

The court ruled in favour of the assessee.

It held that while the assessee had used the wrong accounting head (“amortization”), the true nature of the amount was a revenue loss. The assets were small and had become unusable as a direct and incidental consequence of the business’s normal operations (i.e., the closure of completed or abandoned project sites).
Since it was a revenue loss that was directly related to the business, it was a valid deduction from the profit and loss account.

Key Takeways

Substance Over Form: The court correctly looked at the true nature of the expense, not the label that the assessee had given it in their books. A simple mislabeling in the books of account does not change the inherent character of an expenditure or a loss for the purpose of its tax treatment.
A Loss Incidental to Business is a Revenue Loss: A loss that is incurred as a direct and incidental result of carrying on a business is generally considered to be a revenue loss and is deductible. The loss of value of temporary assets upon the closure of a project site is a classic example of such a loss.

An assessee’s consistent and systematic method of accounting for its work-in-progress (WIP) must be accepted by the Assessing Officer if it does not distort the profits.

Issue

Can an Assessing Officer (AO) reject a construction company’s consistent and balanced method of accounting for the increase or decrease in its work-in-progress (WIP)?

Facts

The assessee, a construction company, had a consistent method of accounting for its WIP. An increase in the WIP related to consumed items was debited to the Profit & Loss account as a revenue expenditure for the year. Conversely, if there was a decrease in WIP, it would be credited to the P&L account as a profit.
The Assessing Officer (AO) disallowed the claim for an increase in WIP. The AO’s view was that this expenditure could not be recognized until the sub-contractor had completed their activity and had raised a final bill, making the amount “payable.”

Decision

The court ruled in favour of the assessee.

It held that since the assessee was consistently following this method of accounting—a method that was balanced and correctly reflected both profits (on a decrease in WIP) and expenses (on an increase in WIP) in their tax returns—the AO was not justified in disturbing it.
The addition was therefore deleted.

Key Takeways

Consistency in Accounting is a Key Principle: A taxpayer has the right to choose a recognized method of accounting. As long as they apply that method consistently from year to year and it does not result in a distortion of the true profits of the business, the tax department cannot arbitrarily reject it or force a change.
The Goal is the Correct Computation of Profit: The assessee’s method was found to be acceptable because it was balanced. It recognized both the positive and the negative impacts of the change in the value of WIP on the Profit & Loss account. This showed that it was a valid method for arriving at the correct profit for the year.

IN THE ITAT DELHI BENCH ‘A’

ACIT

ACC India (P.) Ltd.

Mahavir Singh, Vice President
and AMITABH SHUKLA, Accountant Member

IT Appeal Nos. 650 (DELHI) OF 2020 & 4907 (DELHI) OF 2024
C.O. NO. 72 (DELHI) OF 2023
[Assessment year 2015-16]

SEPTEMBER 24, 2025

K. Sampath and V. Rajakumar, Advs. for the Appellant. Ajay Kumar Arora, Sr. DR for the Respondent.

ORDER

Mahavir Singh, Vice President.- The appeal filed by the Revenue and Cross Objection by the Assessee are directed against the order passed by the Ld. CIT (Appeals)-I, New Delhi dated 20.11.2019 for A.Y. 2015-16. The assessee also filed a penalty appeal for the assessment year 2015-16.

2. Since these appeals and Cross Objection are inter-connected, hence, the same were heard together and disposed of by this common order for the sake of convenience.

3. First we deal with Revenue’s appeal No. 650/Del/2020, wherein, following grounds have been raised by the Revenue:

“1. On the facts and in the circumstances of the case, the Ld. CIT(A) has erred in deleting the addition of Rs. 4,05,31,291/-made on account of bogus expenses debited in the books of account by allowing the additional evidence in disregard to the Rule 46A of the I.T. Rule, 1962 as the case of the company is not covered under any of the circumstances as enumerated in Rule 46A of the I.T. Rules, 1962.

2. On the facts and in the circumstances of the case, the Ld. CIT(A) has erred in deleting the addition of Rs. 6,39,401/- made on account of difference in book balance of Mr. Manoj Kumar Jha and Sh. Bam Ram Mandal by allowing the additional evidence in disregard to the Rule 46A of the I.T. Rule, 1962 as the case of the company is not covered under any of the circumstances as enumerated in Rule 46A of the I.T. Rules, 1962.

3.On the facts and in the circumstances of the case, the Ld. CIT(A) has erred in deleting the addition of Rs. 17,74,720/-made on account of temporary site installation by allowing the additional evidence in disregard to the Rule 46A of the I.T. Rule 1962 as the case of the company is not covered under any of the circumstances as enumerated in Rule 46A of the I.T. Rules, 1962.

4. On the facts and in the circumstances of the case, the Ld. CIT(A) has erred in deleting the addition of 60,16,153/- made on account of provisional expenses by allowing the additional evidence in disregard to the Rule 46A of the I.T. Rules, 1962 as the case of the company is not covered under any of the circumstances as enumerated in Rule 46A of the I.T. Rules, 1962.

5. On the facts and in the circumstances of the case, the Ld. CIT(A) has erred in deleting the addition of Rs,90,109/- made under Rule 40A(3) of the Act by allowing the additional evidence in disregard to the Rule 46A of the I.T. Rule 1962 as the case of the company is not covered under any of the circumstances as enumerated in Rule 46A of the I.T. Rules, 1962.

6. On the facts and in the circumstances of the case, the Ld. CIT(A) has erred in not appreciating the ratio of judgment of Hon’ble Allahabad High Court in the case of Bimal Kumar Anant Kumar v. CIT 28 ITR 278 wherein the Hon’ble Court has held that application under Rule 46A must be made for admission of additional evidences with reasons showing the purposes of the additional evidences and also reasons for not producing it earlier.”

4. Brief facts of the case are that the assessee had e-filed the return of income on 30.09.2015 declaring total income of Rs. 6,50,60,960/-. The case was selected for scrutiny under CASS. The assessment was completed u/s 143(3) of the Income Tax Act, 1961 vide order dated 21.12.2017 and income was assessed at income of Rs.12,19,73,790/-. Against the above order, assessee preferred the appeal before the Ld. CIT(A), who vide his impugned order dated 16.02.2023 has deleted the additions made by AO. Aggrieved with the order of the Ld. CIT(A), Revenue is in appeal before the Tribunal.

5. On perusal of the grounds of appeal, it is noted that in each ground the Revenue has mentioned that in deleting each addition, the Ld. CIT(A) has allowed the additional evidence in disregard to the Rule 46A of the I.T. Rules, 1962 (herein after ‘the rules) as the case of the company is not covered under any of the circumstances as enumerated in Rule 46A of the Rules. Hence, we first will deal with this plea of the Revenue. It is noted that during the appellate proceedings before the Ld. CIT(A) Ld. AR has submitted a paper book containing the balance confirmations and also the details of reconciliation statement of Manoj Kumar Jha and Bam Bam Mandal, Amortisation expenses, work in progress, pre-paid expenses, temporary site installation, provisional expenses and cash payment. Before the Ld. CIT(A), Ld. AR has explained that most of the details were submitted before the AO at the time of assessment. However, the paper book was forwarded to the AO vide letter dated 14.3.2019 and AO had examined the details and submitted her report thereon on 16.5.2019, which was duly considered by the Ld. CIT(A) and held that the present case is covered under Rule 46A(1) of the Rules, hence, it was rightly admitted under Rule 46A of the Rules, hence, this plea of the revenue raised in each ground is not sustainable and deserve to be rejected. We hold and direct accordingly.

6. On the first issue of bogus expenses, we have heard both the parties and perused the records. On the issue of disallowance of Rs. 4,05,31,291/- on account of bogus expenses debited in the books is concerned, we find that ld. CIT(A) noted that during the assessment proceedings, the AO has sent Notices u/s 133(6) to 45 parties, out of that only 4 parties have responded and rest of the parties either not responded or the notices have returned undelivered and the AO has made additions of Rs. 4,05,31,291/- being 50% of total outstanding with these creditors on adhoc basis as bogus in spite of the facts that the assessee company has given the complete copy of account and bills/invoices of these creditors, verified the entries appearing in the bank statement of the company regarding payments made to these creditors, copies of Form 16A Issued to these creditors and also explained that the addresses of these creditors are as per the bills provided by them. In the assessment order the AO has observed that work done by persons in the projects of the company are not in the vicinity of the project site of the company and thus are bogus and non-genuine. In this regard Ld. AR has argued that this observation of the AO does not hold good as the person who supplies labour and machinery at one place can obviously supply labour and machinery in other places also and he need not be located in the nearby areas of the project. In any case this observation of the DCIT does not hold good in today’s hi-tech system. Ld. CIT(A) carefully considered the facts of the case and noted that due to lack of opportunities; many young persons from Eastern part of India migrate to other parts of India and wok in construction sectors, farming sectors and other industries. The contractors organize young workers from their native place, make arrangements for their travel and provide them food, jobs & accommodation near the place of their work. This is a very common practice in Eastern part of India. This cannot be a ground to treat the expenses as bogus. During the remand proceedings, the AO has made necessary verifications. In the remand report, the AO has observed as under: “The confirmation of accounts viz-a-viz bills and ledger accounts of expenses claimed were verified on test check basis and nothing adverse was noticed in this regard.” In the remand report the AO has reported that the assessee company submitted confirmations along with supporting documents of all the entities with whom the appellant company have made transactions during the F.Y. 2014-15. In the remand report the AO has stated that the assessee company was required to furnish the copy of agreement made with the sub-contractors to whom the sub-contracts were given during the F.Y. 2014-15 i.e. projects located in Kolkata, Mumbai, Noida and during the remand proceeding, the assessee company has produced all such details before the AO. During the remand proceedings, the AO has verified the confirmation of accounts viz-a-viz bills and ledger accounts of expenses claimed on test check basis. In this regard nothing adverse has been noticed by the AO. Considering the facts of the case, Ld. CIT(A) correctly noted that AO has erroneously made the addition of Rs. 4,05,31,291/- being 50% of total outstanding with the creditors on adhoc basis. Accordingly, the addition of Rs. 4,05,31,291/- on this account was rightly been deleted. In view of the aforesaid factual matrix, we do not find any infirmity in the finding of the ld. CIT(A) on this issue, therefore, we uphold the same and reject the issue in dispute raised by the Revenue.

7. The next issue on the issue of disallowance of Rs. 6,39,401/- on account of difference in book balance of Mr. Manoj Kumar Jha and Sh. Bam Bam Mandal is concerned, we find that Ld. CIT(A) noted that on perusal of the details (Page number: 26 and 50 & 51 of the paper book), it was found that the difference is due to TDS and retention money. In the remand report the AO has reported that on perusal of reconciliation statement furnished by the assessee company the same is found correct. The AO has reported that during the course of assessment proceedings, the assessee company has furnished ledger account of both the entities which contained TDS and Retention Money and in confirmation these entities have mentioned only the amount which they have actually received or receivable during the year. In the remand report, the AO has given categorical finding that reconciliation statement furnished by the appellant company is found to be correct. Considering the observation of the AO in the remand report and the facts of the case, the AO was directed to delete the addition of Rs. 6,39,401/- on account of difference in book balance of Mr. Manoj Kr. Jha and Shri Bam Bam Mandal, hence, this ground was correctly decided in favour of the assessee. In view of the aforesaid factual matrix, we do not find any infirmity in the finding of the ld. CIT(A) on this issue, therefore, we uphold the same and reject the issue in dispute raised by the Revenue.

8. The next issue on the disallowance of Rs. 17,74,720/- made on account of temporary site installation is concerned, we note that in the remand report the AO has stated that after giving various opportunities for furnishing of the details claimed by the appellant company regarding Temporary Site Installation. The assessee company did not file any details viz-a-viz working of the same during the course of assessment proceedings. The assessee company has furnished the same before the CIT(A). In the remand report the AO has also stated that on perusal of the same, it is noticed that assessee company incurred total expenses under the head Temporary Site installation (Pre-Paid Expenses) during the F.Y. 2013-14 amounting to Rs. 53,24,161/- which was further allocated to the onward F.Ys and out of such expenses, the amount of Rs. 17,74,720/- has been allocated to the F.Y. 2014-15 relevant to A.Y. 2015-16. The AO has also reported that the assessee company also furnished the ledger account of such expenses. As regards the allowability of expenses, the AO has reported that on going through the facts and nature of business of the assessee company, the said expenses are necessities for operation of business but it is not possible to verify the exact expenses debited by the appellant company for the assessment year in question. Ld. CIT(A) noted that at the initial stage of project, temporary structure is constructed for Site Labour Camp/Office, Store, Pantry etc. These expenses have been termed as “Temporary Site Installation” (TSI). During F.Y. 2013-14, the assessee company has incurred TSI expenses of Rs. 53,24,161/- and allocated it to different financial years as under: Rs 9,48,139/- in F.Y. 2013-14, Rs 17,74,720/- in F.Y. 2014-15, Rs 17,74,720/- in F.Y. 2015-16 and Rs 8,26,582/- in F.Y. 2016-17. As per the provision of the Act, purely temporary erections, such as wooden structures are eligible for depreciation @ 100% upto AY 2016-17 whereas the appellant has allocated temporary site installation expenses over a period of four years so as to arrive at the correct profit from a project in a particular year. Considering the nature of the business of the assessee company, Ld. CIT(A) agreed with the observation of the AO in the remand report that the said expenses are necessities for operation of business of the appellant company. Considering the submission of the assessee and the observation of the AO in the remand report, Ld. CIT(A) was of the view that the disallowance of Rs 17,74,720/- on account of the temporary site installation expenses cannot be sustained in the instant case. Accordingly, the AO was rightly directed to delete the disallowance of Rs 17,74,720/- on account of the temporary site installation expenses, hence, this ground of appeal was correctly decided in favour of the assessee by the Ld. CIT(A). In view of the aforesaid factual matrix, we do not find any infirmity in the finding of the ld. CIT(A) on this issue, therefore, we uphold the same and reject the issue in dispute raised by the Revenue.

9. The next issue on the disallowance of Rs. 60,16,153/- made on account of provisions expenses is concerned, we find that Ld. CIT(A) noted that the expenses were debited on accrual basis by making the entry under the head “Provisional Cost” so as to book the actual cost within the financial year. It was the Ld. AR’s contention that assessee is following mercantile system of accounting and the cost has been booked on accrual basis so as to arrive at the actual profit earned during F.Y. 2014-15. The provision was reversed in next financial year and the corresponding party account was credited. The assessee has submitted the copies of Forms 16A of the respective parties showing deposit of TDS in respect of payments on which TDS provisions were applicable. In Form 16A amounts credited to the parties have been shown within F.Y. 2014-15 and all the TDS on these amounts have been deposited by 30.04.2019. Ld. AR has also clarified that there is no violation of section 40(a)(ia). Also during remand proceedings, the AO has examined the details of provisional expenses booked in AY 2015-16. The AO has reported that that these provisional expenses represent the provisions made at the end of the year in respect of work done by the contractors, expenses incurred in the current year etc. In the remand report, the AO has reported that the assessee company was required to furnish the complete details regarding such expenses along with supporting documents. In the remand report the AO has reported that the same was furnished by the assessee company and on verification nothing adverse was noticed. Thus, Ld. CIT(A) has rightly held that assessee is maintaining its books of accounts on mercantile basis and claimed the expenses under the head “provisional cost” which had accrued up to 31.03.2015. In the present case, the expenses under the head” Provisional Cost” cost has been booked on accrual basis in order to arrive at the actual profit earned during F.Y. 2014-15. The assessee company has also deducted TDS from these amounts and deposited the TDS within 30.04.2015. There is no violation of section 40(a)(ia). Thus, Ld. CIT(A) has rightly directed the AO to delete the addition of Rs. 60,16,153/- under Provisional costs which had accrued up to 31.03.2015 and decided the ground in favour of the assessee. In view of the aforesaid factual matrix, we do not find any infirmity in the finding of the ld. CIT(A) on this issue, hence, we uphold the same and reject the issue in dispute raised by the Revenue.

10. The next issue on the disallowance of Rs. 13,90,109/- made u/s. 40A(3) of the Act is concerned, it is noted that in the remand report the AO has reported that in this regard the assessee company furnished the list of persons whom the assessee company made payment in cash during the year under scrutiny and also produced bills and vouchers before the CIT(A). During remand proceedings, the same was verified by the AO. The Assessing Officer has given categorical findings that cash payments exceeding to Rs. 20,000/-was not made to a single entry during the F.Y. 2014-15. Thus, Ld. CIT(A) rightly directed the AO to delete the addition of Rs. 13,90,109/- made u/s 40A(3) on account of cash payments and decided the issue in favour of the assessee. In view of the aforesaid factual matrix, we do not find any infirmity in the finding of the ld. CIT(A) on this issue, hence, we uphold the same and reject the issue in dispute raised by the Revenue.

11. In the result, the Revenue’s appeal is dismissed.

12. Now we deal with Assessee’s cross objection CO No. 72/Del/2023 wherein the following grounds have been raised:-

“On the facts and in the circumstances of the case and in law the Ld. CIT(A) erred in confirming the following additions proposed by the Assessing Officer:-

1. Rs. 38,82,175/- out of amortization expenses;

2. Rs. 26,78,981/- on account of increase in work in progress.

Such order being arbitrary, fallacious, unlawful and untenable must be quashed with directions for relief.”

13. Now we will deal with the issue of amortization of expenses disallowed by AO and confirmed by CIT(A) amounting to Rs.38,82,175/-. We noted that the assessee has not submitted the details before the AO in regard to claim of amortization expenses inspite of the fact that Assessing Officer allowed many opportunities. The AO noted that in the absence of details furnished by the assessee, he has no option to decide on the basis of material available on record. He noted that mere general entry pass on the claim of amortization of expenses, the assessee is unable to explain the nature of the expenditure and on what basis he has claimed these expenses. Accordingly he made addition. The CIT(A) confirmed the action of the AO only on the basis that the assessee’s claim is in regard to obsolete items not useful and hence claim was made under a wrong head i.e. “amortization of expenses”. He noted that the head “amortization” is not a correct nomenclature in accounting treatment and these items rather could have been claimed as written off due to foreclosure of various projects. He noted that this claim is in the nature of capital loss and cannot be allowed as revenue expenditure u/s 37(1) of the Act. Hence, he dismissed the assessee’s ground without going into the merits of the case.

14. Aggrieved the assessee is before the Tribunal. We noted from the assessee’s paper book that the assessee has filed the details of expenses claimed and debited in the books of accounts under the head amortization of dormant and unusable assets like structures, small assets and equipments on account of closure of various project sites like Ariana project at Bombay. The assessee has given details of these unused assets claimed on account of foreclosure of various projects. The details are as under:

S.No.	Date	Particulars	Amount	Remarks
1	10/10/2014	Tools & Equipments	1,615,449	Copy of ledger attached
2	10/10/2014	Air Conditioner	88,977	Copy of ledger attached
3	10/10/2014	Almirah – Steel	9,911	Copy of ledger attached
4	10/10/2014	Bar Bending Machine	207,076	Copy of ledger attached
5	10/10/2014	Camera	5,425	Copy of ledger attached
6	10/10/2014	Computer Desktop	60,150	Copy of ledger attached
7	10/10/2014	Cutting Machine	246,289	Copy of ledger attached
8	10/10/2014	Drill Machine	17,966	Copy of ledger attached
9	10/10/2014	Fan	53,440	Copy of ledger attached
10	10/10/2014	Furniture & Fixture	108,274	Copy of ledger attached
11	10/10/2014	Hammer Drill	44,025	Copy of ledger attached
12	10/10/2014	Porta Cabin	732,779	Copy of ledger attached
13	10/10/2014	Refrigerator	12,889	Copy of ledger attached
14	10/10/2014	Scabbier Machine	49,120	Copy of ledger attached
15	10/10/2014	Total Station -ES-101/SS	543,107	Copy of ledger attached
16	10/10/2014	Vibrator Machine	38,316	Copy of ledger attached
17	10/10/2014	Water Pump	11,710	Copy of ledger attached
18	10/10/2014	Welding Machine	37,272	Copy of ledger attached
		Total:	3,882,175

15. We noted that the CIT(A) has not doubted the genuineness of these claims and only basis for confirming the disallowance is that these items claimed by the assessee under the head “amortization of expenses” is actually in the nature of capital loss and cannot be allowed as revenue expenses u/s 37(1) of the Act. At this point, the learned counsel for the assessee relied on the decision of Hon’ble Bombay High Court in the case of Lord’s Dairy Farm Ltd. v. CIT [1955] 27 ITR 700 and stated in that case Hon’ble Bombay High Court has considered the issue that nomenclature does not matter whether it is a loss claimed under trading head or it is claimed as bad debts. According to the learned counsel for the assessee, Hon’ble Bombay High Court was dealing with the provisions of Section 10(1)(xv) as well as the provisions of Section 10(2)(xi). Hon’ble Bombay High Court answered this question while stating that in the given facts that the embezzlement committed by the employee is a trading loss and falls u/s 10(2)(xv) of the Income Tax Act, 1922. Hon’ble Bombay High Court observed as under:

“5. Then it is suggested that even if the case falls under section 10 (2) (xv) the relevant time for claiming the deduction is not when the loss occurred but when the loss was written off. In the first place, in our opinion, the case cannot fall under section 10 (2) (xv). Section 10 (2) (xv) deals with any expenditure laid out or expended wholly or exclusively for the purpose of business, profession or vocation. Therefore the deduction contemplated by section 10 (2) (xv) must arise out of a voluntary act on the part of the assessee. He must spend and amount for the purpose of the business, profession or vacation and then claim that amount as having been spent wholly and exclusively for the purpose of business, profession or vocation. When the money is lost to the business as a result of embezzlement, there is no expenditure on the part of the employer. It is true that there is loss to the business, but that los is entirely involuntary, and although the loss may arise in the course of the business or be incidental to the business, it cannot be said that the amount represented by the loss was an amount spent wholly and exclusively for the purpose of the business, profession or vocation. Therefore we must differ from the view taken by the Tribunal that a case of embezzlement falls under section 10 (2)

(xv). But does it then follow that an assessee who suffers a loss in his business due to an embezzlement by his employee can get no relief, because the various cases of deductions dealt with under section 10 do not cover such a case ? The answer is very simple. As has been often pointed out, the object of section 10 is to ascertain the true profits and gains of an assessee. The profits must be ascertained from a commercial point of view. The sub-section (2) of section 10 deals with certain specific cases of permissible deductions. But even apart from these Permissible deductions, if there is any loss which from the commercial point of view can be considered to be a trading loss, then that loss must be deducted before the true profits can be ascertained. If therefore we take the view that a loss caused to a businessman by reason of the defalcations committed by his employee is a trading loss, then he would be entitled to deduct that loss although such a loss may not fall within the ambit of any of the deductions mentioned in subsection (2) of section 10.”

16. When this was confronted to learned CIT-DR, he could not controvert as to whether this has to be claimed as a capital loss or it is expenses under the head “amortization”. Learned CIT-DR argued that even if it is a capital loss to be claimed, the deduction can be allowed on account of any capital gains and not otherwise.

17. In reply, learned counsel for the assessee stated that the write off of dormant and unused structure, small assets and equipments on account of closure of sites cannot be considered as capital loss rather it is to be considered as revenue loss because the assessee has not sold any assets on account of any capital assets rather this is a business asset being a depreciable assets, the loss has to be allowed from the current year income.

18. After hearing both the sides and going through the facts, we noted that as far as genuineness of the claim of dormant and unusable asset is not in doubt. The assessee has wrongly booked the claim of dormant and unusable assets under the head “amortization of expenses” rather this is a revenue loss. Once this is a revenue loss it has to be deducted from profits and loss account of the business. Hence, we allow the claim of assessee and this issue is in assessee’s cross objection is allowed.

19. The next issue in this cross objection of assessee is regarding disallowance confirmed by CIT(A) on account of increase in work in progress of Rs.26,78,981/-.

20. Brief facts related to the issue of increase in work in progress added by the AO are that the Assessing Officer noticed from the details furnished by the assessee that there is debit of an amount of Rs.26,78,981/- under the head “net increase/decrease work in progress. The AO required the assessee to explain the same. The assessee explained that the billing is made after the completion of BOQ items in assessee’s construction project, at the particular date there is always some activity which is yet to be completed. Accordingly, at the end of the year work in progress is prepared for such incomplete activity and therefore, increase in net work in progress means work in progress of previous year consumed during the year and that is why it is debited from the profits and loss account in the current year. Accordingly, the assessee claimed this as Revenue expenditure. The Assessing Officer after examining reply of the assessee noted that the expenditure is payable by the assessee to subcontractor who raises a bill on the assessee after completion of activity and as admitted by assessee, since the activity itself is not complete and invoices in this regard has not been raised by the concerned vendor on the assessee, there is no question of recognizing this expenditure in this financial year. Therefore, the AO disallowed the same.

21. Aggrieved the assessee preferred appeal before the CIT(A). The CIT(A) confirmed the action of the AO by considering the observation of the AO that as per the claim of assessee that since this is a consumption and hence it is allowable as Revenue expenditure, the said expenditure is payable by the assessee to a sub-contractor on raising of the bill and not at the time of recognizing this as work in progress. Hence, he confirmed the addition. Aggrieved the assessee is before the Tribunal.

22. We have heard the rival contentions and gone through the facts and circumstances of the case. Before us, the ld. Counsel for the assessee argued that the Assessing Officer as well as CIT(A) failed to understand the nature of head of account inspite of explanation filed by the assessee that in the construction business there are certain activities or projects which are not completed by the end of the financial year and because of the non-completion of the said project, the bill in this regard could not be raised rather the incomplete work is put under the head “work in progress”. The construction project where the billing is made after the completion of BOQ item at a particular date, there is always some activity which is yet to be completed and accordingly the bill cannot be raised for that activity till it is completed. As such at the year end, the work in progress is being prepared for such incomplete project and if there is increase in work in progress of previous year consumed items during the year, the same is debited to profit and loss account of the current year. Ld. Counsel for the assessee argued that as per the accounting policy and accepted accounting principles the difference of opening work in progress and the closing work in progress is shown as net income or expenditure in the profit and loss account. In case there is excess work in progress it will be claimed as Revenue expenditure in case it is decrease in profit or it comes in negative, a figure will be taken in the profit and will be shown as profit in the profit and loss account. It is a consistent policy adopted by the assessee since long and all along has been accepted. On the other hand, the ld. Sr. DR relied on the assessment order and the order of CIT(A).

23. We have heard rival contentions and gone through the facts and circumstances of the case. We noted that as per explanation of the assessee from the beginning before AO as well as before CIT(A) and noted from the facts that assessee is consistently following the method of accounting in case of decrease in work in progress it will be taken as profit and in case there is excess work in progress at the end of the year, the same can be claimed as Revenue expenditure. It does affect the taxability of the income accordingly. Hence, we find that the claim of assessee is allowable and we order accordingly.

24. Coming to assessee’s appeal ITA No. 4907/Del/2024, it is noted that the AO levied the penalty u/s 271(1)(c) and confirmed by CIT(A) holding the assessee guilty of furnishing of inaccurate particulars of income in respect of the time of amortization expenses amounting to Rs.38,82,175/- and on account of increase in work in progress amounting to Rs.26,78,981/-.

25. It is noted that while adjudicating assessee’s Cross Objection in CO No. 72/Del/2023, as above, we have already deleted these two additions and hence the penalty u/s 271(1)(c) will not survive. Accordingly penalty is deleted.

26. In the result, the appeal of the Revenue in ITA No. 650/Del/2020 is dismissed. The Cross Objection of assessee in CO No. 72/Del/2023 is allowed and the penalty appeal of assessee in ITA No. 4907/Del/2024 is also allowed.