Case Study 1:
A search and seizure
action u/s.132 of the Act was carried out in the business premises of M/s. Rich
& Famous on 31/07/2010. M/s. Rich & Famous is engaged in the business
of trading in readymade garments, dress material, etc. on retail and wholesale
basis and the turnover of the assessee is much more than the limit prescribed
u/s.44AB of the Act.
In the course of search
action, a register was found wherein entries of purchases of readymade
garments, etc. were recorded and on comparison of the same with the regular
books of account purchase register, it was detected that the assessee was
making purchases of quantity much higher than that recorded in the books of
account. This register was found for the period from 01/01/2009 till the date
of search action. The total value of such purchases made outside the books of
account amounted to Rs.1.25 cr. for the said period.
Further, certain loose
papers and documents in the form of transport challans, etc. were found showing
actual rate at which the goods are sold and delivered and on comparison with
sales recorded in regular books of account, the sale price was found to have
been suppressed. These loose papers and documents were relating to the period
from 01/10/2009 till the date of search action. The total suppressed sales due
to rate difference for the period from 01/10/2009 till date of search was
valued and worked out to Rs.75 lacs.
Inventory of stock was
prepared by the search party with the help of staff of the assessee and on
comparison with the inventory maintained by the assessee, the book inventory
was found to be short and the search party calculated the total shortage of
quantity and the value thereon was computed by taking the market price (from
tags placed on similar goods found) and thereby calculated the total sales made
outside books of account. The sale outside books was worked out to Rs.2.50
crores.
Cash of Rs.20 lacs was
found in the course of search action, which was seized by the department since
cash as per books was negligible.
One agreement of purchase
of immovable property was also found which reflected that the property was
purchased on 25/02/2006 for aggregate value of Rs.2 cr., whereas the stamp duty
valuation of the property was reflected in the agreement at Rs.2.75 cr. and
thus, explanation was asked for the difference in value.
At the time of search
action, it was also found that the assessee had not filed its return of income
for AY 2008-09 & AY 2009-10 and the income disclosed in the regular books
of account for these two years amounted to Rs.5 cr. and 6 cr. respectively.
Statement of Mr. Rich was
recorded in the course of search action u/s.132(4) of the Act on 10/08/2010 whereby
Mr. Rich offered for tax total amount of Rs.5.50 crores as under-
a) Towards purchases made out
of books 1.25
cr.
b) Towards suppression of
sales due to sale price 0.75
cr.
c) Towards actual suppression
of sales 2.50
cr.
d) Towards excess cash found
in search action 0.20
cr.
e) Towards difference in
value of purchase of property 0.75 cr.
f)
Towards any other discrepancy that may be found 0.05 cr.
Total 5.50 cr.
Mr. Rich retracted the
statement partly by way of letter and affidavit on 15/12/2010 (upon getting the
copies of seized papers and statement recorded) and as against the original
offer of Rs.5.50 cr., the revised disclosure was made of Rs.1.50 cr. by
explaining as under-
a) Only profit on suppression
of sales can be treated as income and not the total amount of suppression – GP
rate adopted 20%, the actual amount of income earned due to suppression of
sales amounted to Rs.50 lacs [2.50 cr. (x) 20%];
b) Difference in sale price
offered in totality – Rs.75 lacs
c) Unaccounted purchases of
Rs.1.25 cr. covered by above revised offer of Rs.1.25 cr. on account of income
on suppression of sales and sales price, hence, no amount offered for
unaccounted purchases;
d) Excess Cash found offered
to tax Rs.20 lacs;
e) Any other discrepancy
offered to tax Rs.5 lacs.
f)
Immovable property actually purchased for 2 cr. and stamp
duty valuation cannot be adopted for tax.
The AO made the following
additions-
a) Towards unaccounted
purchases – Entire amount of Rs.2 cr. added by bifurcating the same in the
respective years. Estimated unaccounted purchases for earlier years covered by
search action on presumption that similar transactions were carried out in
earlier years – Rs.1 cr. for each of the earlier years and Rs.75 lacs for the
period 1/4/2008 to 31/12/2008 – thus making total addition of Rs.6.75 cr.
b) Towards suppression of
sale price – Entire amount of Rs.75 lacs was added by bifurcating the same in
respective years plus estimated suppressed sale rate for earlier years and made
addition of Rs.40 lacs for each of the earlier years and Rs.25 lacs for the
period from 1/4/09 to 30/9/09 – thus making total addition of Rs.3 cr.
c) Towards actual suppression
of sales on account of shortage of stock as on date of search – Rs.2.50 cr.
d) Towards purchase of
property – Rs.75 lacs
e) Towards excess cash –
Rs.20 lacs
f)
Towards other discrepancy – Rs.5 lacs
The AO for the AY 2008-09
& 2009-10 initiated penalty proceedings u/s.271(1)(c) read with Explanation
5A of the Act in respect of the amount disclosed in regular books of account
for which no return was filed in search action besides levying penalty for all
the other years without giving immunity from penalty even for the specified
years on the ground that the manner of earning undisclosed amount is not
substantiated.
M/s. Rich & Famous
seeks your opinion on the following:
i) Whether retraction of statement given by Mr. Rich is
justified?
ii) Whether AO is justified in making additions of both sources
and application of income?
iii) Whether AO is justified
in making addition for the period / years for which no evidences were found?
Would it make any difference if for any of the earlier years, original
assessment was completed u/s.143(3) of the Act?
iv) Whether AO is justified in
making addition in respect of difference in purchase price of property?
v) Whether immunity from penalty u/s.271AAA of the Act is
available in respect of the disclosure
made in the course of search action?
vi) If the answer to (v) above
is in affirmative, for which assessment years would immunity be available and
to what extent?
vii) Is penalty u/s.271(1)(c)
justified in respect of the other additions / disallowances made as above in
the assessment orders?
viii) Whether AO is justified in
levying penalty under Explanation 5A in respect of AY 2008-09 & 2009-10?
Posers:
A) Whether immunity from penalty
u/s.271AAA would be available in the above case, if only unexplained assets
were found and assessed at FMV as on the date of search action without any
trace or evidence of undisclosed income?
B) If no retraction letter /
affidavit was filed by Mr. Rich and only in the return of income the amount of
Rs.1.50 cr. was offered for taxation, whether the disclosure made in statement
u/s.132(4) would supersede the retraction made in return of income?
Case Study 2:
Damaging Roads and Bridges
P. Ltd. is engaged in the business of civil construction mainly carrying out
the civil work of roads, water-supply, etc by taking Government contracts. A
survey action was conducted u/s.133A of the Act on the said company on 04/03/2011.
In the course of survey action, it was found that there were purchase bills of
certain concerns for purchase of steel wherein there were no delivery challan
showing proof of delivery of goods. On further verification by the survey
party, it was gathered that the said concerns were parties listed by the Sales
tax Department in their list of suspicious dealers. The total purchases made
from these parties in the AY 2009-10, AY 2010-11 & AY 2011-12 were
amounting to Rs.4 cr., 7 cr. and 10 cr. respectively.
On being confronted to the
managing director, the managing director stated that there could be some flaws
by the purchase department in not maintaining proper records and therefore
delivery challan and other supporting may not be available, but the purchases
made from the parties were genuine, however, in order to buy peace and avoid
penalty and litigation, the total amount of Rs.21 cr. is offered to tax in the
respective years. The survey officers also took post date cheques against the
demand on the disclosure made.
Thereafter, the managing
director retracted the statement on 30/3/2011 stating therein that all the
purchases made by them are proper and the disclosure was abstracted by the
survey party and thereby did not offer any amount in the returns of income
filed for the respective years.
Reopening notice was
issued u/s.148 of the Act for the earlier two years and against which also the
assessee filed letter stating that the returns filed originally be treated as
filed in response to notice u/s.148 of the Act.
Before the AO, the
assessee submitted that-
a) it has purchased material
from these parties without which the necessary infrastructure could not be
constructed;
b) the payments are made to
these parties by account payee cheques and / or through RTGS and on few
occasions, their names are also appearing in the bank statement;
c) the payments are made as
per the purchase bills received;
d) price is paid including
transportation i.e. the assessee does not bear any transportation cost and
hence, the suppliers are delivering the goods with their own transporters due
to which delivery challan is not found with assessee;
e) quantity of steel used in
the infrastructure facility is certified by Govt. in R.A. bills;
f) there are no transactions
carried out in the current period when the scrutiny is going on and there are
no amounts outstanding to be paid to them and hence, the present whereabouts
are not know since cannot keep track of each and every party;
The AO passed the
assessment / reassessment orders wherein the AO disallowed the entire purchases
made from all the parties, which were listed as suspicious dealers by the Sales
tax Department and the additions made in the respective assessment years were
Rs.5 cr. for AY 2009-10; Rs.10 cr. for AY 2010-11 & Rs.13 cr. for AY
2011-12 by giving following reasons-
a) Only purchase bills of
the parties produced and filed, however, no delivery challan filed nor any
supporting evidence filed showing goods were actually delivered;
b) None of the parties were
produced for examination inspite of giving opportunity to produce them;
c) Summons issued to all the
parties as per the address given in the purchase bills were returned back by
the postal authorities;
d) These parties appear in
the list issued by Sales tax Department of Suspicious Dealers;
e) The managing director
confessed and accepted in the statement recorded and offered the purchases made
from parties as bogus.
The Management seeks your
opinion on the following-
i) Whether the AO is correct
in relying upon the statement recorded u/s.131 of the Act for making
disallowances without referring to the retraction made?
ii) Whether the statement
recorded in survey u/s.133A of the Act has any evidentiary value and whether
the same can be basis for making additions / disallowances?
iii) Whether the additions
made are justified merely because the parties were not available or not
produced in assessment proceedings and they appear in the list of Sales tax
department of suspicious dealers considering the given facts of the case?
Posers:
A) Would it have made any
difference in the above example if there was no survey action conducted?
B) Considering that no survey
action was conducted, what would be the position if-
a) reopening notice was
issued based upon some information received from sales tax department about
suspicious dealers – whether reopening would be justified?
b) if reasons for reopening
specify that statements and affidavits of parties were recorded by sales tax
department and the parties have admitted of issuing bogus bills, whereas
actually, the AO does not have copies of any such statement and/or affidavit –
would the reopening be justified and if yes, would additions be justified
merely on the basis of parties covered by the list of suspicious dealers?
C) Would it make any
difference if business of assessee would be that of trader and not
manufacturer/civil contractor and there is quantity tally showing nexus with
sales?
D) In [C] above, would it
make any difference if the payments for these purchases are made after long
duration i.e. after several months and / or in subsequent years and not on
immediate date of purchase even though the transactions with these parties are
not regular but one off transactions or first time transactions?
E) In all the above
situations, can the additions be made of the entire purchase amount or only GP
additions can be made, if at all, by rejecting the books of account –
considering the following:
(i) GP rates become absurd and
there is huge variation on making the entire addition of purchases;
(ii) On making addition, GP
becomes comparable internally vis-Ã -vis other years [where no such bogus
purchases transactions are made] OR on comparison of GP with third parties;
F) In above situations, can
the disallowance be made u/s.69C of the Act as unexplained expenditure?
G) In above situations, can
the addition be made u/s.40A(3) of the Act as purchases made in cash? Would it
make any difference if assessee admits of purchases actually made in cash but
to account in books of account, bills were obtained?
H) In above situations, what
is the impact of penalty u/s.271(1)(c)? Whether it would make any difference for
the purpose of penalty u/s.271(1)(c) if in all the above situations, the
assessee offers the purchases for disallowance and pay tax on the same with
interest?
Case Study 3:
Efficient & Punctual
Builders P. Ltd. is engaged in the business of builders and developers. They
have undertaken a project of constructing residential tower comprising of 3
wings out of which two wings are completed as on 31/03/2013 and the third wing
is under-construction as on March 2013 and the same is completed on 20/11/2013.
The company is following project completion method of accounting for offering
profits for taxation.
With respect to the two
wings completed, profits arising from units sold are already offered to tax and
with respect to balance units, the same are shown as stock in trade.
With respect to the third
wing being under-construction as on March 2013, few flats are booked by customers
in the years ending on March 2011, March 2012 and March 2013 and the company has issued allotment letters to them
and registration was pending as on March 2013, for which final agreements were
signed and registered between 20/11/2013 to 20/12/2013. For few flats, to whom allotment
letters were issued at the time of booking in the earlier years i.e. prior to
March 2013, since these customers wanted to avail housing loan, agreements were
entered into with them and were also registered prior to March 2013. Flats remaining
unsold as on March 2013 in respect of this third wing were partly sold after
March 2013 and the agreement as well as registration is done after March 2013.
The Company has various
issues as under for which your esteemed opinion is sought for-
(i) Whether the AO can tax
rental income in respect of flats remaining unsold as at March 2013 in respect
of first two wings, which are completed in all respects as at March 2013?
(ii) If answer to (i) above is
in affirmative, whether the ALV will be computed on the basis of FMV or
Municipal Valuation or Standard Rent?
(iii) If answer to (i) above is
in affirmative, whether the ALV will be taxed after receipt of OC from BMC or
from the date of possession given to other customers without waiting for OC?
(iv) Whether provisions of
section 43CA of the Act will be applicable in respect of flats sold in third
wing?
(v) If answer to (iv) above is
in affirmative, kindly throw light on the following situations arising (keeping
in mind that there is difference between the stamp duty valuation and actual
sale consideration)-
(a) where flats are booked by
customers by issue of allotment letters in earlier years and the agreements are
made and registered after March 2013?
(b) where flats are booked by
issue of allotment letters in earlier years and also registration done in
earlier years (those who had availed housing loans), however, the sale is shown
in the books of account as also income offered to income tax after March 2013
on completion of project?
(c) Where flats are booked in
earlier years, however, few of them have cancelled the bookings after March
2013 and fresh agreement is made with another customer?
(d) Whether in any of the
above situations, will the customers also face any liability u/s.56(2) of the
Act since the builder is also concerned for its customers?
(e) In some cases, through
oversight, the allotment letter was dated prior to the receipt of booking
amount by account payees cheque and the registration of such flats were done
after March 2013 and there is huge difference in the actual sale consideration
and the stamp duty value on date of registration?
(f) Whether it would have
made any difference if the company was following percentage completion method
of accounting instead of project completion method of accounting?
(g) In all the aforesaid
eventualities, what is the year of taxation, if the deeming provisions u/s.43CA
were to apply?
(h) In all the above scenario,
how would the TDS provision u/s.194LA of the Act be complied with and on what
value the TDS would have to be deducted, if the TDS provisions were applicable?
Posers:
(A) In the given example,
suppose the company was redeveloping an existing society for which
redevelopment agreements were entered into with the members of the society and
also with the society; what would be the fate of provisions of section 43CA and
56(2) or applicability of any other provisions in the following events-
(1) Builder
company is giving extra area to the existing flat owners?
(2) Some of the flat owners
negotiated for further extra area as compared to others for which they paid to
builder at concessional rates?
(3) Whether there will be any
tax liability in the hands of the society or its members upon entering into
development agreement with the company?
Case study 4:
Mr. Kangal Karodpati is an
individual having four immovable properties and out of which two are let out
and balance two immovable properties are self occupied. With respect to the let
out properties, there are no disputes with the department in respect of ALV as
also the interest paid on loans borrowed for the same.
With respect to the balance
two SOP, only one SOP property is exempted as per provisions of section 22 r.w.s.
23. Mr. Kangal has borrowed funds for both these SOP and is paying interest. Purchase
value of one SOP property is about Rs.2 cr., whereas the second property
purchased in the year 2008 is a bungalow - purchased for Rs.25 cr. Interest
paid for the first property for the entire year is about Rs.5 lacs whereas for the
second property i.e. bungalow, the interest payment is about Rs.3 cr.
Mr. Kangal is showing the
bungalow as deemed let out property (DLOP) for purposes of section 22 & 23
and claiming the entire amount of interest of Rs.3 cr. as deduction. Against
this, the ALV shown is on the basis of municipal rateable valuation, which is
for the entire year about Rs.2 lacs and hence, the balance amount of interest
after reducing from the ALV is considered as loss for set off against income earned
for the year. With respect to the other SOP, interest of Rs.1.50 lacs is
claimed as deduction.
The AO in the assessment
order has disputed the working shown by Mr. Kangal and has entirely reversed
the computation i.e. the AO has computed rent on the basis of fair market value
by adopting 8% of the capital value of bungalow on the ground that Rent control
Act is not applicable for the bungalow rejecting the explanation of Mr. Kangal
that the bungalow was constructed in the year 1940 and the same was merely
purchased by him in the year 2008 and therefore Rent Control Act is applicable
and even otherwise, rent cannot exceed Municipal Rateable value. With respect
to the claim of interest deduction of Rs.3 cr., the AO restricted the claim of
Mr. Kangal to Rs.1,50,000/- on the ground that this property is DLOP and not
actual LOP and hence, the actual interest claimed is not allowable as per
provisions of section 22 r.w.s. 23 of the Act.
Mr. Kangal seeks your
valuable opinion as to whether the action of the AO is justified?
Case Study 5:
M/s. Multibagger Share and
Securities P. Ltd. is a company engaged in the business of share and stock
brokers and is member of the stock exchange. The company acts as broker for
purchase and sale of shares and securities on behalf of the clients and earns
brokerage income. Besides the said business, the company also carries out the
business of dealing in shares on its own account and at the same time, the
company is also showing investments in the balance sheet and the income thereon
in respect of purchase and sale of shares is disclosed and offered as income
from capital gains. In earlier years i.e. prior to AY 2005-06, the department
has accepted the income under both the heads i.e. business income in respect of
shares held as stock in trade and capital gains in respect of shares held as
investment mainly in respect of long term capital gains. For AY 2005-06, the
company offered huge income from purchase and sale of shares, which were
offered to tax as short term capital gains besides offering some income as
business from dealing in shares. Some of the shares on which the short term
capital gains are offered to tax were reflected as investment in the immediate
earlier year in the balance sheet. The AO in the course of assessment
proceedings called for the details of the short term capital gains and business
income, which particulars were duly furnished to the AO with supporting
evidences and all the details called for were furnished. On considering the
details furnished, the AO was of the view that in respect of income offered as
short term capital gains, there were huge volume of transactions and the
frequency of transactions were of such magnitude that almost in every settlement,
there was one transaction on an average. The AO treated the entire income
including the short term capital gains as business income of the company.
Further, the AO upon
verification found that no TDS was deducted u/s.194H of the Act in respect of commission
paid to sub-brokers and thus, disallowed entire sub-brokerage paid
u/s.40(a)(ia) of the Act also on the ground that the payment of commission is
in the nature of referral fees.
The company preferred
appeal to the CIT(A), which was decided against the company on both the issues.
Now the company has preferred appeal to Tribunal and the same is pending for
disposal. In the meantime, the AO has also levied penalty under section
271(1)(c) of the Act on the ground of furnishing inaccurate particulars of
income, which appeal is pending before CIT(A).
The company seeks your
opinion on the following issues:
(a) Whether the claim of the
company is correct in offering the income both as trader and as investor in
shares?
(b) Whether the AO is justified
in treating the short term capital gains as business income considering the
following situations independent of each other-
(i) Company has borrowed funds for making
investments?
(ii) Company has made
investment from its own funds, however, volume of transactions is huge, though
frequency is not so huge?
(iii) Company has invested from
its own funds, however, volume is small but frequency is huge?
(iv) In situations (ii) and
(iii) above, would it make any difference if situation (i) is also applicable?
(v) In situation (ii), (iii)
and (iv), would it make any difference if there is any churning of shares i.e.
same scrip share is purchased and then sold and again repurchased on later date
i.e. after sale date and again resold? Would it make any difference if this
churning is done in only one or two scrips?
(vi) In situation (v) would
there be any difference if period of holding is more than 3 months or 6 months
before resale and repurchase?
(c) Whether in such a case,
penalty levied u/s.271(1)(c) is justified for furnishing inaccurate particulars
of income?
(d) Whether AO is justified in
disallowing commission payment to sub-brokers u/s.40(a)(ia) applying the
provisions of section 194H of the Act?
(e) If answer to (d) above is
in affirmative, whether disallowance u/s.40(a)(ia) can be made even though the
entire sub-brokerage commission was paid as at year end and no commission was
outstanding as payable?
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