Assessing the legitimacy of Rs. 10 lakh written off by Zebina Real Estate Pvt. Ltd. Explore ITAT Delhi’s decision favoring the business expenditure claim.
Once the CBDT has issued instructions for assumption of jurisdiction for selection of cases of corporate assesses for scrutiny and assessment thereof, the same have to be followed in letter and spirit by the AO .
We have carefully considered the submissions and perused the records. We find that the value of the property in this case as reflected in the registered sale deed was Rs. 55,00,000/-. Reference u/s. 142A was made to the DVO by the Assessing Officer.
In this case Assessing Officer noted that from the perusal of the balance sheet and Annexures it was noted that the assessee has taken loans from banks, amounting to RS. 8,32,93,610/- in the form of secured loan and also from other parties, amounting to Rs. 56,20,479/-
the stand of the assessee has been that a sum of Rs. 12,00,000/- was given to the assessee company, consequent upon the Resolution passed by the Board of Directors of the said Company authorizing the assessee to invest on behalf of the company in units of M/s Reliance Equity Advantage Funds.
It is contended by the learned counsel that the sum of Rs. 16 lakhs added by the Assessing Officer as undisclosed income has already been offered as income by the assessee by way of forfeiture of booking advance.
The undisputed facts are that the assessee was to receive the sum of 74,30,575/- from CCIL towards crane hire charges. However, actually, the assessee could receive only 58,39,011/-. The Revenue has not disputed the correctness of the assessee’s contention that it could not recover the sum of Rs. 16,66,081/-.
The only addition made in the hands of both the above minor children of Shri Kamal Piyush was the protective addition of 2,51,000/- which was added on substantive basis in the hands of Shri Kamal Piyush.
Director of assessee company Mr. Varun Sarup Agarwal issued a cheque on 1.2.2007 on behalf of the assessee company for payment of rent and assessee company opened its account after issuance of this cheque. The amount of Rs. 2 lakh was deposited in the bank account of Mr. Varun Sarup Agarwal with a bona fide intention to prevent dishonoring of the cheque issued to the landlord of the assessee company and the remaining amount was returned back to the assessee company’s bank account. In the facts and circumstances of the case, it is doubtful whether the amount received by director with an intention to deposit it to the bank account with a bona fide belief that this would save the prestige of the company can be characterized as a loan or a deposit within the meaning of Section 269T of the Act. Although Section 269T of the Act does not expressly confer any exemption from transaction between connected parties or sister concern but a perusal of the decided cases on this point shows that there is a cleavage of judicial opinion.
From the above second proviso to Section 92C(2), it is evident that if the variation between the arm’s length price and the price at which international transaction was actually undertaken does not exceed the specified percentage, then only the price at which the international transaction has actually been undertaken shall be deemed to be arm’s length price. Thus, the benefit of tolerance margin would be available only if the variation is within the tolerance margin. Once the variation exceeded the tolerance margin, then there would be no benefit even up to tolerance margin. Then, the ALP as worked out under Section 92C(1) shall be taken as ALP without any benefit of tolerance margin.
