Expense can be disallowed u/s 40A(2)(b) & Not the Receipts

KEC-PLR-KPIPL-JV Vs ITO ( ITAT Delhi)

The issue under consideration is whether the disallowance made u/s 40A(2)(b) by AO is justified in law?

ITAT states that, in the present case, it is an admitted position that the AO made the addition by invoking the provisions of Section 40A(2)(b) of the Act which are applicable to the expenses considered to be excessive or unreasonable having regard to the fair market value of the goods/services or facilities for which the payment is made. However, in the instant case, the AO estimated the profit of the assessee and determined the income, nowhere he doubted the expenses incurred by the assessee. Therefore, I am of the confirmed view that the AO was not justified in making the addition by invoking the provisions of Section 40A(2)(b) of the Act which are applicable to the expenditure and not to the receipts and the ld. CIT(A) rightly deleted the same. A similar issue having identical facts has already been adjudicated by the ITAT Delhi for the assessment year 2011-12 in the case of ITO, Ward-2(2), Gurgaon Vs KEC-Asiakom UB (JV). Therefore, respectfully following the same, ITAT set aside the order of the CIT(A) and direct the Assessing Officer to delete the addition.

FULL TEXT OF THE ITAT JUDGEMENT

The above two appeals filed by the respective assessees are directed against the common order dated 28^th September, 2018 of the CIT(A)-1, Gurgaon, relating to Assessment Year 2015-16.

2. Since identical grounds have been taken by the respective assessees, therefore, these were heard together and are being disposed of by this common order for the sake of convenience.

ITA No.7764/Del/2018 (KEC ASIAKOM UB JV)

3. Facts of the case, in brief, are that the assessee is a company and filed its return of income on 28^th August, 2015 declaring a loss of Rs.29,295/-. The Assessing Officer noted that the assessee is a joint venture between M/s KEC International Ltd., M/s ASIA Communication & Electronic Sdn. Bhd. and M/s Unique Builders formed for the purpose of applying for tender to the Railways. The three joint venture partners had share of 60%, 25% and 15% respectively. The Assessing Officer noted that the work contract was awarded to the assessee by the RVNL. This work was in turn subcontracted by the assessee to M/s KEC International Ltd. Contract price receivable by the assessee from RVNL was Rs. 56,96,05,620/- and the sub contract amount payable to M/s KEC International was Rs. 56,88,08,170/- leaving an amount of Rs. 7,97,448/-. The Assessing Officer pointed out that as per audit report, the following payments were made to the persons specified u/s 40A(2)(b):-

4. The Assessing Officer observed that normally in the case of sub-contract of this nature, the contractors pay not more than 95% of the receipt. In the assessee’s case the amount paid to sub-contractor is almost more than 99% of the receipt. Expenses incurred by the assessee, therefore is excessive.

5. The Assessing Officer pointed out that M/s KEC International Ltd. to whom the work was subcontracted was a related party u/s 40A(2)(b) and accordingly asked the assessee to explain and justify with documentary evidence that the payment made to related party was as per the market rate. Since the assessee, according to the Assessing Officer failed to file any evidence that the payment of the expenditure incurred to the related party was fair and reasonable as per prevailing market price the Assessing Officer was of the view that the expenses incurred by the assessee were excessive and accordingly disallowed an amount of Rs.5,15,240/- being the excess expenditure of 4% of the total payment made to related party.

6. Before CIT(A), it was submitted that the assessee was mere pass through entity in the form of joint venture created only for the purpose of bidding of the contract. It was argued that all the work contracted by RVNL to the JV was carried out by KEC International Ltd. and the other two partners were given credential fee @ 2%. It was accordingly argued that the disallowance made by the Assessing Officer should be deleted.

6.1 However, the ld.CIT(A) was not satisfied with the arguments advanced by the assessee. Following identical issue decided by him in the other group cases i.e., in the case of M/s KEC TRIVENI KPIPL JV, the ld.CIT(A) confirmed the action of the Assessing Officer.

7. Aggrieved with such order of the CIT(A), the assessee is in appeal before the Tribunal by challenging the order of the CIT(A) in confirming the disallowance made by the Assessing Officer under the provisions of section 40A(2)(b) of the IT Act.

8. The ld. counsel for the assessee, at the outset, filed the decision of the Hon’ble J&K High Court in the case of Soma TRG Joint Venture vs. CIT reported in (2017) 398 ITR 425 (J&K) and submitted that the Hon’ble High Court in the said decision has held that where assessee, a joint venture company, was formed for only purpose of submission of tender while actual work was executed by parties to joint venture and no expenditure was incurred by joint venture itself, receipt in respect of said contract could not be treated as assessee JV’s income as there was diversion of income at source; on allocation of aggregate receipts to partners assessee-JV had no TDS obligation .

9. Referring to the decision of the Hon’ble Delhi High Court in the case of CIT vs. Oriental Structural Engineers Pvt. Ltd. reported in 374 ITR 35 (Del), he submitted that the Hon’ble High Court in the said decision has held that where JV was formed only to secure contract, in terms of which scope of each JV partner’s task was distinctly outlined and further, entire work was split between two JV partners and they completed task, through sub-contractors, JV was not an association of persons and liable to be taxed on that basis.

10. Referring to the decision of the Hon’ble Delhi High Court in the case of Linde AG, Linde Engineering Division vs. DDIT reported in 365 ITR 1 (Del), he submitted that the Hon’ble High Court in the said decision has held that in absence of sufficient degree of joint action between consortium members in either execution or management of project, consortium would not be deemed as an AOP for purposes of Income-tax Act.

11. He submitted that under identical circumstances, the Tribunal in the case of one of the sister concern namely ITO vs M/s Kec-Delco Vraha (JV) vide ITA No.2327/Del2016 order dated 18.09.2018 for A.Y. 2011-12 has decided the issue and held that the Assessing Officer was not justified in making the addition by invoking the provisions of section 40A(2)(b) of the Act and the appeal filed by the Revenue was dismissed. He accordingly submitted that since the issue stands decided in favour of the assessee by various decisions of the coordinate Benches of the Tribunal and different High Courts, therefore, the order of the CIT(A) be set aside and the grounds raised by the assessee be allowed.

12. The ld. DR, on the other hand, heavily relied on the order of the CIT(A).

13. I have considered the rival arguments made by both the sides and perused the relevant material on record. The assessee is a joint venture of KEC International Limited and M/s Asia Communication & Electronics SDN BHD and M/s Unique Builders who are engaged in the business of civil construction and all the parties entered into JV agreement dated 13.07.2010 for the execution of the contract awarded by Eastern Railways Kolkata. KEC International Limited was appointed as the lead partner of the JV. I find the assessee filed return of income declaring a total loss of Rs.29,295/- by giving the following financial details:-

14. I find the Assessing Officer disallowed expenditure @ 4% of the total expenses incurred towards KEC International Ltd. by invoking the provisions of section 40A(2)(b) which has been confirmed by the CIT(A). I find identical issue had come up before the Tribunal in the case of KEC-Delco-Vraha (JV) (supra) and the Tribunal has dismissed the appeal filed by the Revenue by observing as under:-

“9. We have considered the rival arguments made by both sides and perused the orders of the authorities below. We find the SMC Bench of the Tribunal in the case of ITO Vs. M/s KEC Sidharth JV and in the case of ITO Vs. M/s. KEC PLR KPIPL JV in the consolidated order dated 03.04.2018 has decided identical issue and dismissed the appeal filed by the revenue in all these appeals by observing as under :-

“8 I have considered the submissions of both the parties and carefully gone through the material available on the record. In the present case, it is an admitted position that the AO made the addition by invoking the provisions of Section 40A(2)(b) of the Act which are applicable to the expenses considered to be excessive or unreasonable having regard to the fair market value of the goods/services or facilities for which the payment is made. However, in the instant case, the AO estimated the profit of the assessee and determined the income, nowhere he doubted the expenses incurred by the assessee. Therefore, I am of the confirmed view that the AO was not justified in making the addition by invoking the provisions of Section 40A(2)(b) of the Act which are applicable to the expenditure and not to the receipts and the ld. CIT(A) rightly deleted the same. A similar issue having identical facts has already been adjudicated by the ITAT Delhi Bench “SMC”, New Delhi vide order dated 21.11.2016 in ITA No. 2326/Del/2016 for the assessment year 2011-12 in the case of ITO, Ward-2(2), Gurgaon Vs KEC-Asiakom UB (JV), Gurgaon wherein the relevant findings are given in paras 5 & 6 of the order dated 21.11.2016 which read as under:

“5. It is noticed that the AO made disallowance u/s 40A(2)(b) of the Act by opining that the assessee should have earned income from subcontracting. At this stage, it is relevant to note the prescription of the relevant part of Section 40A(2), which is as under :-

‘40A(2)(a) Where the assessee incurs any expenditure in respect of which payment has been or is to be made to any person referred to in clause (b) of this sub-section, and the Assessing Officer is of opinion that such expenditure is excessive or unreasonable having regard to the fair market value of the goods, services or facilities for which the payment is made or the legitimate needs of the business or profession of the assessee or the benefit derived by or accruing to him therefrom, so much of the expenditure as is so considered by him to be excessive or unreasonable shall not be allowed as a deduction.’

6. On going through the mandate of the above provision, it is clear that the disallowance under this section is made in respect of the expenses incurred or payments made which are not deductible. This section has no application to income aspect of the assessee. As the AO has made disallowance u/s 40A(2)(b) in respect of income which the assessee in his opinion ought to have earned rather than certain expenses incurred, I am of the considered opinion that the provisions of this section are not attracted. I, therefore, uphold the impugned order on this score deleting the disallowance.”

9. The aforesaid order was followed in the assessee’s own case in ITA No. 5943/Del/2016 for the assessment year 2012-13 vide order dated 28.02.2017 wherein it has been held as under:

“4. I have considered the submissions of both the parties and perused the record of the case. Admittedly, the Assessing Officer has invoked the provisions of section 40A(2)(b) as the contract had been given to associated party. I find that under identical circumstances the Tribunal in the case of Kec-Asiakom UB (JV) (supra) has observed as under:-

“4. I have heard the ld. AR and perused the relevant material on record. None is present on behalf of the Revenue. In fact, there is no one to attend the proceedings from the side of the Revenue in all the cases fixed before the Bench today. The ld. AR insisted that the appeal be disposed of. I am agreeable with the contention of the ld. AR and, accordingly, proceeding to dispose of the instant appeal ex parte qua the Revenue.

5. It is noticed that the AO made disallowance u/s 40A(2)(b) of the Act by opining that the assessee should have earned income from sub-contracting. At this stage, it is relevant to note the prescription of the relevant part of Section 40A(2), which is as under:-

‘40A(2)(a) Where the assessee incurs any expenditure in respect of which payment has been or is to be made to any person referred to in clause (b) of this sub-section, and the Assessing Officer is of opinion that such expenditure is excessive or unreasonable having regard to the fair market value of the goods, services or facilities for which the payment is made or the legitimate needs of the business or profession of the assessee or the benefit derived by or accruing to him therefrom, so much of the expenditure as is so considered by him to be excessive or unreasonable shall not be allowed as a deduction.’

6. On going through the mandate of the above provision, it is clear that the disallowance under this section is made in respect of the expenses incurred or payments made which are not deductible. This section has no application to income aspect of the assessee. As the AO has made disallowance u/s 40A(2)(b) in respect of income which the assessee in his opinion ought to have earned rather than certain expenses incurred, I am of the considered opinion that the provisions of this section are not attracted. I, therefore, uphold the impugned order on this score deleting the disallowance.”

5. Respectfully following the decision of the Tribunal in the case of Kec-Asiakom UB (JV) (supra), I allow the claim of assessee.”

10. So, respectfully following the aforesaid referred to order, I do not see any merit in this appeal of the department.

11. In ITA Nos. 7045 & 7046/Del/2017, identical issue having similar facts is involved, therefore, the findings given in the former part of this order shall apply mutatis mutandis.

12. In the result, the appeals of the department are dismissed.”

10. Since the order of the CIT (A) is in consonance with the decisions of the Tribunal in other group concerns, therefore, in absence any contrary material brought to our notice against the orders of the Tribunal and considering the fact that the Ld. CIT (A) while deciding the issue has followed the decisions of the Hon’ble High Court, therefore, we find no infirmity in the order of Ld. CIT(A). Accordingly, the same is upheld and the grounds raised by the revenue are dismissed.”

15. Since the facts of the impugned appeal are identical to the facts of the case decided by the Tribunal in the case of ITO vs. M/s KEC-Delco Varaha (JV) cited (supra) therefore, respectfully following the same, I set aside the order of the CIT(A) and direct the Assessing Officer to delete the addition. The grounds raised by the assessee are accordingly allowed.

ITA No.7763/Del2018 (A.Y. 2015-16)

16. After hearing both the sides and perusing the material available on record, I find the grounds raised by the assessee are identical to the grounds raised in ITA No.7764/Del/2018. I have already decided the issue and the grounds raised by the assessee have been allowed. Following similar reasonings, I set aside the order of the CIT(A) and direct the A.O. to delete the addition. The grounds taken by the assessee in the instant appeal are accordingly allowed.

17. In the result, both the appeals filed by the assessee are allowed.

The decision was pronounced in the open court on 09.05.2019.