AO can not  determine the sale consideration for capital gains based on statements alone, without any evidence to support

By | February 27, 2025
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AO can not  determine the sale consideration for capital gains based on statements alone, without any evidence to support

Clarification on Capital Gains Computation, Income Characterization, and Business Expenditure Deductibility

Key Issues and Decisions:

I. Sale Consideration for Capital Gains:

  • Issue: Whether the Assessing Officer (AO) can determine the sale consideration for capital gains based on statements alone, without any evidence to support a higher consideration than that mentioned in the registered sale deed.
  • Decision: The court held that relying solely on statements without concrete evidence to support a higher sale consideration is not justified. The AO’s addition based on a higher sale price was deleted. (In favor of the assessee)

II. Reimbursement of Expenses as Income:

  • Issue: Whether the reimbursement of expenses received by the assessee under a Joint Development Agreement (JDA) should be considered as income.
  • Decision: The court referred to a similar case involving the assessee’s partner, where the Commissioner (Appeals) had deleted a similar addition, and the revenue had not challenged that decision. Based on this precedent, the court held that the reimbursement could not be added as income in the assessee’s hands. (In favor of the assessee)

III. Double Taxation of Settlement Amount:

  • Issue: Whether the addition of a settlement amount received by the assessee as income leads to double taxation, as the assessee had already included it in their books of account.
  • Decision: The court held that adding the settlement amount to the total income would result in double taxation, which is not permissible. The addition was deleted to avoid double taxation. (In favor of the assessee)

IV. Allowability of Business Expenditure:

  • Issue: Whether the assessee can claim expenditure incurred on the sale of commercial space when the Assessing Officer disallowed it due to lack of supporting documents.
  • Decision: The court upheld the Commissioner (Appeals)’ decision to delete the addition, as the assessee had provided sufficient evidence of the expenses. The court emphasized that there was no need for a remand report from the AO when the evidence was sufficient. (In favor of the assessee)

Key Takeaways:

  • Capital Gains: This ruling clarifies that the sale consideration for capital gains should be based on concrete evidence and not solely on statements.
  • Reimbursement of Expenses: The decision confirms that reimbursement of expenses under a JDA should not be treated as income if a similar treatment has been accepted in a related case.
  • Double Taxation: The court reiterated the principle of avoiding double taxation, ensuring that income is not taxed twice.
  • Business Expenditure: This case highlights that business expenditure can be allowed even if initially disallowed by the AO, provided the assessee furnishes sufficient evidence to support their claim.

This case provides valuable guidance on various aspects of the Income-tax Act, 1961, offering clarity on the computation of capital gains, the nature of income, and the allowability of business expenditure.

IN THE ITAT HYDERABAD BENCH ‘B’
Assistant Commissioner of Income-tax
v.
Pavani Structurals (P.) Ltd.
VIJAY PAL RAO, Vice president
and MADHUSUDAN SAWDIA, Accountant Member
IT Appeal Nos. 477 & 478 (Hyd.) of 2020 and 84 (Hyd.) of 2021
[Assessment Years 2012-13 & 2016-17]
JANUARY  15, 2025
P. Murali Mohan Rao, C.A. for the Appellant. Kumar Pranav, CIT-DR for the Respondent.
ORDER
1. These three appeals are filed by the Revenue, feeling aggrieved by the separate orders passed by the Learned Commissioner of Income Tax (Appeals)-11, Hyderabad (“Ld. CIT(A)”), on 04.02.2020 & 10.11.2020 for the A.Y. 2016-17 and on 04.02.2020 for A.Y. 2012-13. Since all the appeals belongs to same assessee and some identical issues are involved in these appeals therefore, for the sake of convenience and brevity, the appeals were heard together and a consolidated order is being passed.
ITA 478/Hyd/2020 for A.Y. 2016-17
2. The Revenue has raised the following grounds in the appeal :
“1.The ld.CIT(A) erred both in law and on facts of the case in allowing relief to the assessee.
2.The ld.CIT(A) erred in deleting the disallowance of expenditure amounting to Rs.6.49 crores without actually adjudicating the ground raised on this issue.
3.The Ld.CIT(A) failed to appreciate the fact that value was adopted at Rs.3000/- per s.ft basing on the statement recorded from the Directors of the two companies.
4.The Ld.CIT(A) erred in not relying upon the decision as held by the Hon’ble M.P.High Court in the case of SS Ratanchund Bholanath v. CIT (Madhya Pradesh), wherein it was held that “when assessee admitted that a particular income is liable to be included in its total income, assessment made in such admission is valid”.
5.The Ld.CIT(A) erred in deleting the addition of Rs.2,50,00,000 towards reimbursement of expenses when the expenses which was claimed to have been incurred much earlier to receipt of reimbursement expenses and prior to Assessment Year 2011-12.
6.The Ld. CIT(A) ought to have appreciated the fact that mere receipt of reimbursement expenses alone will not suffice to allow any prior period expenses against such receipts.
7.The Ld.CIT(A) erred in deleting the addition of Rs.83,00,000 received from YKH Builders towards out of court settlement, when no explainable and legible books of accounts were produced before the Assessing Officer for verification that the income was already offered to tax.
8.The appellant craves leave to amend or alter any ground or add any other grounds which may be necessary.”
3. The brief facts of the case are that, search and seizure operation u/s. 132 of the Income Tax Act, 1961 (“the Act”) was carried out in the group of M/s. Western Constructions, Hyderabad (“M/s. WC”) along with M/s. Pavani Structurals Pvt. Ltd. (“the assessee”) on 02.11.2016. Accordingly, notice u/s. 153A of the Act was issued to the assessee by the Learned Assessing Officer (“Ld. AO”). In compliance to the said notices, the assessee filed Return of Income (“ROI”) for A.Y. 2016-17 on 3.4.2018 declaring total income of Rs.31,45,320/-. The Ld. AO completed the assessment u/s.143(3) r.w.s. 153A of the Act on 28.12.2018 by making addition of Rs.7.43 Crores on account of commercial space sold and making substantive addition of Rs.2.50 Crores on account of reimbursement of expenses. The protective addition of Rs.2.50 Crores was made in A.Y. 2012-13.
4. Aggrieved with the order of Ld. AO, the assessee filed appeal before the Ld. CIT(A). The Ld. CIT(A) deleted all the additions made by the Ld. AO and allowed the appeal of the assessee.
5. Aggrieved with the order of Ld. CIT(A), the Revenue is in appeal before us raising as many as eight grounds. The Learned Department Representative (“Ld. DR”) submitted that ground nos.1 & 8 are general in nature and do not require any separate adjudication. He further submitted that ground no.2 relates to deletion of disallowance of expenditure of Rs.6.49 Crores by the Ld. CIT(A) without adjudicating the issue. However, the Ld. CIT(A) adjudicated the issue, by his separate order u/s.154 r.w.s. 250 of the Act dated 10.11.2020. Therefore, the Ld. DR submitted that, the ground no.2 now become infructuous and do not require any separate adjudication.
6. With regard to the other grounds of the appeal, the Ld. DR submitted that, ground nos.3 & 4 are related to adoption of sale price of commercial space, ground nos.5 & 6 are related to deletion of addition of Rs.2.5 Crores and ground no.7 is related to deletion of addition of Rs.83 lakhs.
7. The brief facts related to this appeal are that the assessee entered into Joint Development Agreement (“JDA”) with M/s. YKH Builders Pvt. Ltd. (“YKH”) and formed M/s. Pavani and YKH Joint Venture firm (“JV firm”) exclusively for construction of commercial complex which had been named as “Western Pearl” located at Kondapur, Hyderabad. The JV firm started the development activities and also entered into a development agreement with some other adjacent land owners. The JV firm incurred expenditure on the project work i.e. excavating the sheet rocks for the purpose of cellars, payment of security deposit to land owner, etc. In the meantime, the real estate market slumped and some dispute arises between the partners of JV firm, which causes scarcity of funds in the hands of JV firm. Therefore, the JV firm could not execute any further development work. Later on, both the partners of JV firm settled their dispute and the JV firm and other land owners entered into another JDA with M/s. WC as developer of the property. In lieu of the initial expenditure incurred by the JV firm on project work, it was decided that, M/s. WC will pay to the partners of the JV firm Rs.8 Crores as reimbursement of expenses incurred by the JV firm on the project and some commercial space will also be provided to both the partners in the project. Accordingly, the assessee got Rs.2.5 Crores on account of reimbursement of expenses and 22,000 sq. ft. of commercial space during the A.Y. 2016-17 from M/s. WC. The assessee also received Rs.83 lakhs during the A.Y. 2016-17 from M/s. YKH on account of settlement of the dispute.
8. On the basis of the aforesaid facts, with regard to the ground nos.3 & 4 of the appeal, the Ld. DR submitted that, the assessee sold the commercial space of 22,000 sq. ft. through registered sale deed for a total consideration of Rs.5,71,17,500/-i.e. an average rate of Rs.2,596/- per sq. ft. However, during the statement u/s. 132(4) of the Act, the Managing Director (“M.D.”) of M/s. YKS, Sri T.S. Harischandra Prasad stated that the prevailing market price of the commercial space at the time of another JDA with M/s. WC was Rs.3,000/- per sq. ft. On the basis of the said statement of Shri T.S. Harischandra Prasad, the Ld. AO calculated the sale consideration on 22,000 sq. ft. of commercial space @ Rs.3,000/- per sq. ft. amounting to Rs.6.30 Crores for the purpose of calculation of total income, in the hands of the assessee. The Ld. CIT(A) upheld the sale consideration taken by the assessee at Rs.5,71,17,500/-, contending that the statement of other parties cannot be the basis for the Ld. AO to make addition, specially when the Ld. AO has not brought on record any concrete evidence to show that the assessee has actually sold the commercial space @ Rs.3,000/-per sq. ft.
8.1 Aggrieved with the order of Ld. CIT(A), the Revenue is in appeal before us. The Ld. DR submitted that, during the statement recorded u/s.132(4) of the Act on 02.11.2016, Sri T.S. Harischandra Prasad, M.D. of M/s. YKH admitted the sale price of Rs.3,000/- per sq. ft. towards sale of commercial space and again the rate of Rs.3,000/- per sq. ft. was affirmed by Sri T.S. Harischandra Prasad vide his statement recorded u/s.131 of the Act on 10.11.2016. The Ld. DR also submitted that Ms. S. Sunitha Reddy, Accountant of assessee in her statement recorded u/s.132(4) of the Act on 2.11.2016 stated that the assessee sold the entire 22,000 sq. ft. to various customers in F.Y. 2015-16 @ Rs.3,000/- per sq. ft.. Therefore, the Ld. DR submitted that, the sale consideration of the commercial space should be adopted @ Rs.3,000/- per sq. ft.
8.2 Per contra, the Ld. AR submitted that, they have sold all the commercial space through registered sale deed only and have recorded all the sale considerations in their books of account. The sale consideration as per registered sale deed are in line with the value as per stamp duty authority. The Ld. AR further submitted that, the Ld. AO had made the addition merely relying on the statement of other parties without bringing any evidence on record to show that the assessee has actually sold the commercial space @ Rs.3,000/- per sq. ft. Therefore, the Ld. AR prayed before the bench that the sale price of Rs.3,000/- per sq. ft. taken by the Ld. AO is without any basis and therefore requires to be set aside.
8.3 We have heard the rival contentions and also gone through the record in the light of the submissions made by either side. The sale consideration of the assessee is based on the registered sale deed, which is in line with the value as per stamp duty authority. However, the Ld. AO relying on the statement of Sri T.S. Harischandra Prasad, M.D. of M/s. YKH and Ms. S. Sunitha, Accountant of the assessee, calculated the sale consideration @ Rs.3,000/- per sq. ft., instead of sale consideration accounted for by the assessee on the basis of registered sale deed. The Ld. AO could not bring any material on record to show that the assessee received any consideration over and above what has been shown in the registered sale deed. The Ld. AO also failed to bring on record any comparable sale instance to show that the sale price of the commercial space was more than the price recorded in the registered sale deed. The Ld. CIT(A) has considered and decided this issue in para no.7.2 as under :
” 7.2) I have gone through the facts and submissions. The AO has adopted the rate at Rs.3,000/- per sq.ft. since the other partner of the above JV Firm i.e. YKH Builders have sold their commercial space in the same complex @ Rs.3,000/- per sq.ft. in the subsequent financial year. The statement of the other party cannot be basis for the AO since the circumstantial evidence in the form of Registered Sale Deeds exhibit the sale consideration of 22,000 sq.ft at Rs.2,696/- per sq. ft., which was quantified at Rs. 5,71,17,500/-, and was shown by the appellant in his P&L A/c. The AO on his part has not brought anything concrete on record to show that the appellant has also sold the same at Rs.3,000/- per sq. ft., other than drawing from the statement of Sri T.Harischandra Prasad, Managing Director of YKH Builders. In the absence of any material to show that the assessee company received consideration over and above what is shown in the registered sale deeds, no addition is warranted. Hence, the receipts from sale of commercial complex has to be accepted at Rs.5,71,17,500/-, which is offered to tax by the appellant. The addition to the extent of Rs.6.60 crores is not warranted and the same is deleted.”
Therefore, we are of the considered opinion that the sale price of Rs.3,000/- per sq. ft. taken by the Ld. AO, merely on the basis of some statements without bringing any concrete material in support of his claim, is not correct. Accordingly, we do not find any reason to interfere with the impugned order of Ld. CIT(A) qua this issue and consequently ground nos.3 & 4 of the Revenue stand dismissed.
9. The facts related to ground nos.5 & 6 are that, the assessee received Rs.2.5 Crores from M/s. WC as their share in a JV firm on account of reimbursement of expenses incurred by JV firm. The Ld. AO doubted the veracity of incurring of expenses and held that in case had such expenses actually been incurred, the expenses ought to have shown in the returns of JV firm, whereas the same has not been shown separately by the JV firm. As such, the Ld. AO held that the assessee failed to prove the actual incurring of expenses and consequently added Rs.2.50 Crores in the hands of the assessee.
9.1 Aggrieved with the order of Ld. AO, the assessee filed appeal before the Ld. CIT(A). The Ld. CIT(A) deleted the addition made by the Ld. AO.
9.2 Aggrieved by the order of Ld. CIT(A), the revenue is in appeal before us. The Ld. DR submitted that, the incurring of expenses by the JV firm are in doubt because, had the expenses actually been incurred, the expenses ought to have shown in the returns of JV firm, whereas the same has not been shown separately by the JV firm. He further submitted that, as such, the assessee failed to prove the actual incurring of expenses. Therefore, the Ld. DR requested to uphold the order of Ld. AO.
9.3 Per contra, the Ld. AR relied on the order of Ld. CIT(A). In their alternate submission, the Ld. AR submitted that, identical issue was involved in the case of other partners of JV firm i.e. M/s. YKH, where M/s. YKH had received Rs.5.50 Crores as similar reimbursement of expenses from M/s. WC and the Ld. CIT(A) had deleted the addition made by the Ld. AO. However, the revenue has not challenged such deletion by Ld. CIT(A) before the ITAT in the case of M/s. YKH. Hence, the Ld. AR submitted that the Revenue cannot take different stand in case of assessee who are in similar footing. He also submitted that the Revenue is supposed to take coherent, consistent and uniform stand against all the assesses, who are similarly situated and whose rights are emanating from the very same JDA. The Ld. AR further submitted that, the Revenue cannot take the contrary view in the case of the assessee than what has been taken in case of YKH. The law abhor uncertainty and selective approach against any person. The Ld. AR finally submitted that, on this count also the appeal of Revenue is liable to be dismissed.
9.4 We have heard the rival contentions and also gone through the record in the light of the submissions made by either side. We have gone through the grounds of appeal filed by the Revenue before the co-ordinate bench of ITAT in ITA no.1565/Hyd/2019 related to M/s. YKH, where the Revenue has not challenged the order passed by the Ld. CIT(A) in favour of M/s. YKH on account of reimbursement of expenditure of Rs.5.50 Crores. We noticed that, the similar issue was came before the co-ordinate bench of the Tribunal in case of Vinod Narappa Reddy in ITA No.1853 to 1855/Bang/2018 dated 05.10.2020, wherein the ITAT has held that “the Revenue cannot take the contrary view, which has been taken in a group of assessees to the determinant to the assessee before us. The law abhor uncertainty and selective approach against any individual.” Therefore, without going into the merits of the case, respectfully following the decision of co-ordinate bench of ITAT in the case of Vinod Narappa Reddy (supra), we hold that, the Revenue cannot take the contrary view, which has been taken in case of M/s. YKH, to the determinant to the assessee before us. The observation of Ld. CIT(A) in this regard are contained in para no.6.3 and 6.4 of his order, which are reproduced hereunder :
” 6.3) Identical case is decided by me on the same issue in the case of the other partner of the JV Firm i.e. YKH Builders (P) Ltd for the AY 2016-17, vide my order in Appeal No.138/2018-19/CIT(A)-11/Hyd, dated 16.07.2019, wherein, the reimbursement expenses amounting to Rs.5.50 crores consequent to Memorandum of Understanding dated 15.09.2011, between the new builder Western Constructions and M/s Pavani & YKH JV was received by YKH Builders (P) Ltd was decided. The same is reproduced hereunder for the sake of convenience.
” 6.2 I have considered the assessment order and the submissions of the appellant. The AO made addition of reimbursement of expenses made by M/s. Western Constructions to the appellant company amounting to Rs.5.50 Crores (actually Rs.4.5 crores) while not taking into account the liabilities attached to the appellant company impending payments under the settlement reached between the partners of the JV Firm. observed that the year of receipt of these amounts are in the asst. years It is 2011-12 & 2012-13. These amounts reimbursement of expenditure incurred by the appellant when it was the were reimbursed towards developer and also to clear the liabilities accruing to it as partner of the JV Firm. In this context, it noted that the JDA, dt.25.10.2011 entered into by the appellant as confirming party with. M/s. Western Constructions does not contain any clauses as to payment of such amount. There was meeting between the partners of M/s. Pavani and YKH JV on 15.09.2011 which is prior to JDA with M/s. Western Constructions, the minutes of which noted as under:
(a)It is decided that the development of the properties into abuilding complex shall be handed over to M/s. Western Constructions for a consideration of Rs.8.00Cr in cash and over 33,395/- sq.ft of super build up area in the proposed building complex to the partners of the firm:
(b)Of the agreed consideration, Pavani Structurals P Ltd shall receive Rs.2.50Cr in cash and 22,000 sq.ft of super built-up area in the proposed building complex as follows:
(i)7,175/- sq.ft of built up area towards the 337 sq.yds land purchased in the name of Pavani Structurals P Ltd from Dr. G. Padmalatha and Mr. Venkat Reddy.
(ii)2,825/- sq.ft of built up area towards relinquishing the rights of development of 675 sq.yds land entered into development agreement by Pavani Structurals P Ltd with Dr. G. Padmalatha and Mr. Venkat Reddy, the owners of one plot and
(iii)12,000 sq. ft of built up area towards relinquishing all the rights of development in the project.
(c)And YKH Builders P Ltd shall receive Rs.5.50Cr in cash and over 11,395/- sq. ft of super built up area in the proposed building complex.
(d)For such considerations receivable from the third party developer M/s. Western Constructions
(i)Pavani Structurals P Ltd, shall be liable to deal with and settle the following liabilities-
1)Pay the balance amount of Rs.50,00,000/- due to Sairam Excavators (Narsimha Reddy) towards excavation works done in the project.
2)Settle and repay the advances received from prospective buyers pertaining to Mr. Praveen Reddy and group members (Rs. 76,85,000/- and get back all the Firm’s cheques issued to the group members and indemnify YKH Builders P Ltd.
3)Settle and repay the advances received from prospective buyers pertaining to Dr. Narsimha Reddy, Mr. Ram Kolluri and group members (Rs.4,20,00,000/-)
4)Settle and repay the advances received from prospective buyers pertaining to Mr. A. Venkateswar Reddy and group members (Rs. 1,20,00,000/-)
5)Settle all other liabilities arising out of any/all other advances/investments received from any other prospective buyers, third party investors, unrelated third party demands, etc and ensure that no demands are raised by any person over the Firm or its partners, arising out of the actions of Pavani Structurals P Ltd.
(ii)YKH Builders P Ltd, shall be liable to deal with and settle the following liabilities.
1)Settle the brokerage charges of Rs.80,00,000/- to M/s. Octagon Assets P Itd towards finalizing the deal with M/s. Western Constructions.
2)Settle the repayment of Rs. 1,00,00,000/- advance received from M/s. Roxana Developers towards development of project vide MOU dt.20.06.2010.
3)Settle the demands of the land owners towards delayed project to the extent of Rs.3,00,00,000/-.
4)Settle the demands of land owners towards additional built up areas, to the extent of about 14,500 sq.ft out of the surplus built up areas available from the 45% of the built up areas jointly allocated towards the share of the JV firm, the land owners and other claimants after deducting the super built-up areas allocated to the land owners and the other claimants as per the terms of their respective development agreements/agreements with the Joint venture firm and the agreed super built up area of 22,000 sq. ft to Pavani Structurals P Ltd and 11,395/- sq.ft of built up area to YKH builders P Ltd., all as per the terms agreed to under the draft Joint development agreement cum GPA to be entered into with M/s. Western Constructions.
5)Settle all other liabilities arising out of any/ all other advances/investments received from any other prospective buyers, third party investors, unrelated third party demands etc. and ensure that no demands are raised by any person over the Firm or its partners, arising out of the actions of YKH Builders P Ltd.
Considering the above, it is clearly seen that the amount received by the appellant is towards existing liabilities or towards expenditure to be incurred to clear the project for execution by ‘developer’ as per JDA. It is seen that, due to disputes among the partners of JV firm which was actually executing the project, they were not able to proceed with the construction of the project and hence decided to handover the project to Before entering into JDA with WC, the Western Constructions (WC). partners settled down their disputes and came to an understanding which was put into writing in the form of Minutes of Meeting (MoM). According to the said MOM, both the parties agreed to distribute their responsibilities with respect to the amounts receivable as reimbursement of expenditure from WC for handing over the project. Consequent to this MOM & JDA, the appellant was supposed to be paid an amount of Rs.5.50 crores out of Rs. 8.00 crores, as reimbursement of expenditure. However, as demonstrated by the appellant, it had received only an amount of Rs.4.50 crores towards the reimbursement and the entire amount had been spent by the appellant, which was not even contradicted by the assessing officer.
Therefore, the said reimbursement cannot be considered as income to the appellant. The main contention of the assessing officer is that the Joint Venture is the legal entity and if at all the expenses is to reimbursed by Western constructions, the same have to be to JV Firm and not individual partners. Since, in the case the amounts have been reimbursed to the appellant, which is a partner entity, the same is income in its hands. This argument of the assessing officer does not hold water. If The payment cannot change its character depending on the recipient. the said payment is reimbursement of expenditure to the JV Firm, the same will also be a reimbursement, if given to the partners of the firm. Here in this case, there is a reason for reimbursing the expenditure There were directly to the partners of the firm instead of the firm. disputes among the partners and JV firm was agreed to be dissolved upon the registration of JDA with WC. The individual responsibilities have been fixed up among the members and accordingly, the reimbursement was given to the partners. Therefore, there is no merit in this argument of the assessing officer.
The second observation of the assessing officer is that JV firm might have claimed this expenditure and might have been allowed as an expenditure in it hands under IT Act and hence as per the in this analogy any reimbursement of expenses which is debited in the relevant books needs to be considered for taxation as part of gross income in the year of accrual in the hands of Joint Venture, is also not correct. The appellant had produced the balance sheet of the JV Firm and the entire expenditure has been shown as Work in Progress and hence claiming the said expenditure as deduction in the hands of JV firm does not arise. Further, the AOS contention that income accrued in the current year is not born by the facts. It is seen that the expenditure/liabilities was already incurred and reimbursed by the end of asst. year 2012-13. Therefore, question of accrual of income in the current assessment year does not the arise. The third contention of the assessing officer that the appellant is a confirming party and is given financial benefit in reimbursement charges and as per mercantile method of accounting these the form of receipts stands accrued as income. The expenditure incurred or liabilities paid off by the appellant cannot be treated as application of income, It is rather expenditure incurred in connection with earning income only. The assessing officer has taxed the amount of expenditure received in the FY 2011-12 & 2012-13 in the asst. year 2016-17 by adopting a patently incorrect logic both on law and on fact. Accordingly, it is held that the addition of Rs.5.50 Cr made by the AO is not warranted and the same is deleted. The appellant succeeds on the above grounds.”
6.4) In the instant case, the appellant M/s Pavani Structurals (P) Ltd also received the reimbursement expenses of Rs.2.50 crores from Western Constructions only. Duly following by own order, the addition of reimbursement expenses of Rs.2.50 crores, made in the hands of the appellant, for the AY 201617, is ordered to be deleted. This ground is thus allowed.”
Hence, we do not find any error or illegality in the impugned order of Ld. CIT(A) qua this issue. Accordingly, ground nos.5 & 6 of Revenue are dismissed.
10. The facts with regard to ground no.7 are that, the assessee had received Rs.83 lakhs from M/s. YKH on account of out of court settlement of their dispute and offered the same as income in their books of account. The Ld. AO added the same to the total income of the assessee, contending that the assessee could not produce necessary explanation / evidence in support of their claim that they have already offered Rs.83 lakhs in their books of account.
10.1 Aggrieved by the order of Ld. AO, the assessee filed the appeal before the Ld. CIT(A). The Ld. CIT(A) deleted the addition on the ground that the assessee has already shown Rs.83 lakhs as income in their profit and loss account.
10.2 Aggrieved by the order of Ld. CIT(A), the revenue is in appeal before us. The Ld. DR placed reliance on the order of Ld. AO and prayed before the bench to upheld the order of Ld. AO.
10.3 On the other hand, the Ld. AR brought our attention to page no.14 of paper book containing “statement of profit and loss account” for the year ending 31.03.2016 and page no.15 related to schedule on “revenue from operation” and submitted that, the assessee has already offered Rs.83 lakhs as its income by including the same in the amount of sale of Rs.6,54,17,500/-and the addition made by the Ld. AO leads to double addition of the same income. Therefore, the Ld. AR prayed before the bench to delete the addition made by the Ld. AO.
10.4 We have heard the rival contentions and also gone through the record in the light of the submissions made by either side. We have also gone through the statement of P&L account placed at page no.14 and schedule of revenue from other sources placed at page no.15 of paper book referred by the Ld. AR and found that the assessee has already offered Rs.83 lakhs as income during A.Y. 2016-17. Therefore, we are of the considered opinion that, as Rs.83 lakhs has already taken as income by the assessee, the addition made by the Ld. AO on the same income leads to double taxation in the hands of the assessee, which is not allowable as per the Act. Therefore, we uphold the order of Ld. CIT(A) deleting the addition of Rs.83 lakhs made by the Ld. AO. Accordingly, ground no.7 of the Revenue is dismissed.
11. In the result, the appeal of the Revenue in ITA No.478/Hyd/2020 for A.Y. 2016-17 is dismissed.
ITA No.477/Hyd/2020 for A.Y. 2012-13
12. The Revenue has raised the following grounds :
“1.The ld.CIT(A) erred both in law and on facts of the case in allowing relief to the assessee.
2.The Ld.CIT(A) erred in deleting the addition of Rs.2,50,00,000 towards reimbursement of expenses when the expenses which was claimed to have been incurred much earlier to receipt of reimbursement expenses and prior to Asst.Year 2011-12.
3.The Ld. CIT(A) ought to have appreciated the fact that mere receipt of reimbursement expenses alone will not suffice to allow any prior period expenses against such receipts.
4.The appellant craves leave to amend or alter any ground or add any other grounds which may be necessary.”
13. The solitary issue raised in this appeal is against the protective addition of Rs.2.50 Crores for which a substantive addition was made by the Ld. AO in A.Y. 2016-17. As per our discussion and observation in ITA No.478/Hyd/2020 at para no.9 to 9.4 above, we have deleted the substantive addition of Rs.2.50 Crores. Consequently, the protective addition of Rs.2.50 Crores in this appeal is also deleted. Accordingly, we dismiss the appeal of Revenue.
14. In the result, the appeal of the Revenue in ITA No.477/Hyd/2020 for A.Y. 2012-13 is dismissed.
ITA No.84/Hyd/2021 for A.Y. 2016-17
15. The Revenue has raised the following grounds of appeal :
“1.The ld.CIT(A) erred both in law and on facts of the case in allowing relief to the assessee.
2.The ld. CIT(Appeal) erred in allowing the expenditure claim of Rs.6.23 cr. on the ground that the assessee filed details along with vouchers before the assessing officer ignoring the observation of the assessing officer that the assessee did not furnish explainable and legible books of account of the J.V. to verify the claim of expenses incurred.
3.The ld. CIT(Appeal) ought to have granted an opportunity to the Assessing Officer under Rule 46A to examine the evidence stated to have been filed before the CIT(Appeal).
4.The ld. CIT(Appeal) erred in allowing the claim on the ground that the payments were mostly made through banking channels without appreciating the fact that the mode of payment would not by itself decide the allowability of a claim.
5.The ld. CIT(Appeal) erred in granting relief on the ground that the assessee filed expenditure details and that the expenditure was mainly incurred through banking channels without giving a specific finding that the expenditure was examined and found to be allowable.
6.The appellant craves leave to amend or alter any ground or add any other grounds which may be necessary.”
16. At the outset, it is seen that, there is a delay of 02 days in filing of this appeal for which the Revenue has filed a condonation petition explaining the reasons for such delay. After considering the contents of the condonation petition and after hearing the Ld. AR, the delay of 02 days in filing of this appeal is condoned and the appeal is admitted for adjudication.
17. The Ld. DR submitted that, the solitary issue involved in this appeal is on account of deletion made by the Ld. CIT(A) for Rs.6,23,10,775/- on account of expenditure claimed by the assessee. The facts related to this ground are that, the assessee sold commercial space of 22,000 sq. ft. during A.Y. 2016-17 and claimed Rs.6,23,10,775/- as expenditure incurred on account of sale of such commercial space. The Ld. AO disallowed the claim of said expenditure of Rs.6,23,10,775/- and added the same in the hands of the assessee on the ground that the assessee did not produce any bills / vouchers / evidence in support of the claim.
18. Aggrieved with the order of Ld. AO, the assessee filed appeal before the Ld. CIT(A). The Ld. CIT(A) at para no.4.2 of his order has given categorical finding that expenditure incurred by the assessee are mostly by cheque or banking channel and the assessee furnished all the details of these expenses before him. Therefore, the Ld. CIT(A) deleted the addition of Rs.6,23,10,775/-made by the Ld. AO.
19. Aggrieved with the order of Ld. CIT(A), the Revenue is in appeal before us. The Ld. DR submitted that many bills / vouchers / evidences were produced by the assessee before the Ld. CIT(A) for the first time. In support of their claim, the Ld. DR furnished a report of Ld. AO, in which the Ld. AO has marked the documents which were not filed before him. On the basis of the report of Ld. AO, the Ld. DR submitted that the assessee failed to substantiate his claim of expenditure of Rs.6,23,10,775/- by producing corresponding bills / vouchers / evidence before the Ld. AO. Later on, before the Ld. CIT(A) the assessee produced such bills / vouchers / evidences. Therefore, the same were in the nature of additional evidences before the Ld. CIT(A) and as per Rule 46 of IT Rules, 1962 (“the Rules”), the Ld. CIT(A) should have called for a remand report from Ld. AO, which the Ld. CIT(A) failed to do so. Therefore the Ld. DR submitted that, the order passed by the Ld. CIT(A) is in contravention of Rule 46 of the Rules and is required to be set aside. He prayed before the bench to set aside the issue to the file of Ld. AO for verification of the bills / vouchers / evidence in support of expenditure of Rs.6,23,10,775/- and to decide the allowability of the same.
20. Per contra, the Ld. AR submitted that, the assessee had filed all the ledger accounts of the relevant expenditure of Rs.6,23,10,775/- containing the details of expenditure along with the corresponding bank statements from which the payments had been made. However, only the relevant bills / vouchers could not be produced before the Ld. AO. He further submitted that, all the relevant vouchers / bills / evidences produced before the Ld. CIT(A) in support of claim of expenditure of Rs.6,23,10,775/- and after verifying the same, the Ld. CIT(A) has deleted the addition made by the Ld. AO. Therefore, the Ld. AR prayed before the bench to uphold the order of Ld. CIT(A).
21. We have heard the rival contentions and also gone through the record in the light of the submissions made by either side. We found that, the assessee had filed all the ledger accounts of the relevant expenditure of Rs.6,23,10,775/-containing the details of expenditure along with the corresponding bank statements from which the payments had been made. However, only the relevant bills / vouchers could not be produced before the Ld. Assessing Officer and consequently for want of bills and vouchers, the Ld. AO made the addition. To make up the said deficiency, all the relevant vouchers / bills / evidences produced by the assessee before the Ld. CIT(A) in support of claim of expenditure of Rs.6,23,10,775/. Therefore, the claim of assessee has been substantiated by the extracts in the book of account and supporting bills and vouchers which was further corroborated by independent evidence in the shape of Bank Account Statement. Once the claim has been supported by Books of Account and bills & vouchers as well as independent evidence of Bank Account Statement, the need of further verification was right not felt by Ld. CIT(A). After going through all the vouchers / bills / evidences in support of expenditure of Rs.6,23,10,775/-, the Ld. CIT(A) has given factual finding at para no.4.2 of his order that the expenditure incurred by the assessee are mostly by cheque / banking channel and the assessee furnished details of all these expenses and accordingly deleted the addition made by the Ld. AO. Therefore, the decision of Ld. CIT(A) is based on proper evaluation of evidence. As far as the objection of the Ld. DR regarding not calling of remand report is concerned, where the evidence filed are from independent source and are sufficient to decide the matter and no defect or shortcoming in the said evidence is brought on record, then we do not find any merit in the said objection of Revenue. Accordingly, we do not find any infirmity in the order of Ld. CIT(A) and therefore, we uphold the order of Ld. CIT(A). Accordingly, the appeal of the Revenue is dismissed.
22. In the result, the appeal of the Revenue in ITA No.84/Hyd/2021 is dismissed.
23. To sum up, all the three appeals of Revenue are dismissed.