Income Tax Appellate Tribunal – Ahmedabad
The Dcit, Circle-4,, Baroda vs M/S. Yuvraj Industries Ltd.,, … on 14 December, 2021 आयकर अपील य अ धकरण, अहमदाबाद यायपीठ, अहमदाबाद ।
IN THE INCOME TAX APPELLATE TRIBUNAL
“A” BENCH, AHMEDABAD
[Through Virtual Court]
BEFORE SHRI RAJPAL YADAV, VICE-PRESIDENT
AND
SHRI PRADIPKUMAR KEDIA, ACCOUNTANT MEMBER
ITA.No.2751/Ahd/2011
नधा रण वष /Asstt.Year : 2007-08
DCIT, Cir.4 Vs. M/s.Yuvraj Industries Ltd.
Baroda. Kamadhenu Bunglow
36, Parichay Park Society
Nr.JP Road Police Station
Vadodara 390 007
PAN : AAACY 0665 Q
अपीलाथ / (Appellant) यथ / (Respondent)
Assessee by : None
Revenue by : Shri Vijaykumar Jaiswal, CIT-
DR
सन
ु वाई क तार ख/ Date of Hearing : 25/10/2021
घोषणा क तार ख / Date of Pronouncement: 14/12/2021
आदे श/O RDER
PER RAJPAL YADAV, VICE-PRESIDENT
Revenue is in appeal before the Tribunal against order of the
ld.CIT(A)-III, Baroda dated 5.8.2011 passed for Asstt.Year 2007-08.
2. This appeal was listed on the board on 9.1.2012. Shri Mehul
Patel, the ld.counsel appeared on behalf of the assessee. Thereafter, it
has been adjourned continuously on his request. However, in the
month of July, 2021, he pleaded no instruction, and requested that
fresh notice be issued upon the assessee. He has sent address of the
assessee as “Yuvraj Industries Ltd., C/o. Mr.Ajay V. Shah, 501,
Suryakiran Apartments, Opp: Banker Heart Institute, Old Padra Road,
ITA No.2751/Ahd/2011
2
Vadodara, Gujarat”. Fresh notice was issued at this address. Earlier
also number of notices were issued to the assessee, but no one has
come present on behalf of the assessee. Therefore, under compelling
reasons, we proceed ex parte qua assessee-respondent, and decide the
issue after hearing the ld.DR.
3. Revenue has taken three grounds of appeal. However, its
substantial grievances are pleaded in ground no.1, which reads as
under:
“1 (a) On the facts and in the circumstances of the case and in
law the learned CIT(A) has erred in holding that the provisions of
section 41(1) are not applicable merely because the assessee is
still showing the liability of Rs.1,69,35,279/- in its balance sheet
as advance against booking without considering the fact that the
said property has been disposed off during the year.
(b) On the facts and in the circumstances of the case and in
law, the C1T(A) has erred in holding that the provisions of section
41(1) are not applicable merely because the assessee is still
showing the liability of Rs.1,42,98,315/- in its balance sheet as
maintenance deposits even though the deposits were taken in the
year 1995 and possession of concerned properties have already
been given to the customers.”
4. Brief facts of the case are that the assessee has filed its return of
income on 30.10.2007 declaring total loss at Rs.(-)3,32,38,250/-. The
case of the assessee was selected for scrutiny assessment and requisite
notices were issued and served upon the assessee. On scrutiny of the
accounts, the ld.AO found that certain liabilities shown in the balance-
sheet have been ceased. Therefore, he issued a show cause notice to
the assessee. The show cause notice, reply of the assessee and finding
of the AO is worth to note, which reads as under:
“CESSATION OF LIABILITY U/S.41(1)
Vide order sheet entry dated 4.12.2009, the assessee was to stated as
under:-
[1] You have taken advances from various persons against the Tower
D & E of Bhadralok Project amounting to Rs.1,69,35,279 during the
years 1999-2000 to 2004-2005. It is noted that you have not paid a
ITA No.2751/Ahd/2011
3
single rupee till 31.3.2007, rather as on date. In these circumstances,
you are requested to show cause as to why the said advance of
Rs.1,69,35,279 should not be treated as your income u/s.41(l) of the
Income-tax Act, 1961.
[2] Like-wise, it is also noted that you have taken deposit in respect
of the following Block of Vishwamitri Town Ship as under –
A – Rs.40,56,700
B – Rs.41,03,300
C – Rs.41,87,100
3% maintenance deposit – Rs.19,51,315.
You are also requested to show cause as to why these deposits
aggregating to Rs.1,42,98,415 should not be treated as your income as
per the provisions of section 41(1) of the Income-tax Act, 1961.
3.2. The assessee vide its letter dated 21.12.2009, the assessee has
stated that suits were filed against the company and its directors by
Bank of India, Kalbadevi Br. Mumbai, CBI Mumbai, Anchor Health &
Beauty Care Pvt. Ltd., Shikhar Leasing & Trading Ltd., Members of
Bhadralok, Members of Vishwamitry Township and many other. The
assessee company and its directors were under pressure from all
around to pay the loan liabilities since FY.2004-2005. To pay liabilities
assessee was trying to raise funds by selling its property.
However, in view of lots of disputes / litigations, immediate
consideration payments demand by the assessee and many were not
ready to buy assets viz. Hotel Yuvraj, Baroda, Bhadralok Project, Hotel
Yurvraj, Surat and office premises at Baroda. The assessee could
finalise sales deal in various years and able to settle dues of Tourism
Finance Corporation Ltd., Bank of India, Anchor Health & Beauty Care
Pvt. Ltd. and Shikher Leasing & Financing Ltd. Financial crisis, pending
suits, disposing of assets of the company and huge past years
accumulated losses resulted in halting / closure of revenue earning
activity of various divisions of the assessee company. The assessee
company was / is under such a critical position and to come out from
major legal issues, it had to sell out assets on a terms as suitable to the
buying party. Buyer’s hands were up and the assessee was not in a
position to make any negotiation at all and the assessee has to
compromise with itself. Further, as a result of losses exceeds net worth
of the company, the company is declared as a sick industrial company
by BIFR, New Delhi vide order dated 28.7.2008.
3.3. In respect of Tower D & E, it is stated that residential flats were
under construction, possession not handed over and there prevails
contingency as to finalization of sale and therefore amounts received
from members are in the advance booking deposits. The assessee has
received money as a advance for the purpose of sale that is to take
place in future. Till the finalization of sale, the assessee is holding the
amount as a trustee and the money so received are money in trust. The
assessee has given preference and priority to make repayment to
ITA No.2751/Ahd/2011
4
secure and strong loan parties alone. Amount outstanding as at
31.3.2007 Rs.1,69,35,279 were true liabilities and in fact refundable to
respective parties. The assesee has filed confirmation letters from some
of the parties. In respect of other members, name and address has
been given.
3.4. In respect of maintenance deposits collected by the assessee has
furnished maintenance deposit refund claim letters received from
Bhadralok Association, for Vishwamitry Maintenance deposit the society
has filed suits against the assessee in court and, therefore, the assessee
unable to collect the confirmation. It is stated by the assessee that all
the past records are mixed up, held by lawyer and due to time bound
assessment proceedings, the assessee is not in a to submit agreements
with each party for booking /maintenance.
3.5. The assessee has requested not to treat the advances / deposits
aggregating to Rs.3,12,33,694 should not held to be income of the
assessee in the present year u/s.41(l) of the Income-tax Act, 1961.
3.6. I have considered the reply filed by the assessee. The same is not
tenable. It is the contention of the assessee that the assessee has to
repay these booking advances s to the respective person / parties and
that they have filed suits against the assessee to recover the deposits /
advances given. The assessee’s contention was not supported by any
corroborative evidence. With regard to the booking advance taken
against Tower D & E of Bhadralok Project amounting to Rs.1,69,35,279,
the current fact of the case is that the assessee has sold the whole
work-in-progress of Rs.6,70,67,029 of D & E Tower to Asman Trading
Pvt. Ltd. for a consideration of Rs.2,92,00,000. In present, the assessee
has nothing to do with Tower D & E of Bhadralok project. In the sale
deed of D & E Tower of Bhadralok, it is not mentioned anywhere that
the assessee has to repay this advance to the persons from whom it has
taken advance against the booking or it has to repay this advance to the
purchaser Asman Trading Pvt. Ltd. The assesee has taken these
advances during long interval of time from the year 1995-1996 onwards
to 2003-2004. But till date from the 2003-2004, the assessee has not
repaid a single rupee to any of the depositors.
3.7. With respect to the maintenance deposit taken from
the members of Vishwamitri Township and from the members Bhadralok
Tower A, B and C, the assessee has taken these deposits against the
maintenance of the respective society of different Towers. On that
time, the assessee has shown it as liability in its books of account. The
assessee has taken these deposits very long back in the year 1995
when the project was begun. The assessee has completed these
projects and sold the entire units to customers. The customers have
also taken possession and are residing in these houses. But till date
the assessee has not repaid these maintenance deposits to
the respective societies. The assessee’s contention that the Societies
has written letters to the assessee for payment of the
maintenance deposit, which is not a valid proof that the assessee is
going to repay these deposits to respective societies. The assessee has
ITA No.2751/Ahd/2011
5
bifurcated its sale consideration of the flats into maintenance deposit
and actual sale consideration to avoid the payment of legitimate taxes
on the total consideration. This is clear from the fact that the assessee
has not repaid a single amount to the societies against which it has
taken the maintenance deposit from the members. Thus, it is proved
beyond doubt that this is a colourable device adopted by the assessee
to minimize its tax liability.
3.8. In the instant case, the amounts were not in the nature of deposits
as stated by the assessee because the amounts were not given back to
the societies. The deposits were taken in the course of trade. The
unclaimed surplus retained by the assessee would be its trade receipt.
The money was received by the assessee in the course of carrying on its
business. The same was treated as maintenance deposit and was of
capital nature at the point of time it was received. Although the amount
received originally was not of income nature, the amount remained with
the assessee for a long period. By lapse of time, the claim of the deposit
become time barred and the amount attain a totally different quality. It
becomes a definite trade surplus. Here in this case, the assessee has
not paid the said deposits / booking advances to any of the members /
societies and also not going to pay the same because he has sold his
entire business of construction. This is nothing but cessation of liability
in the hands of the assessee u/s.41(l) of the Income-tax Act, 1961.
Reliance is placed on the decision of the Hon. Supreme Court in the
case of CIT v/s. T.V. Sundaram lyengar & Sons Ltd. [88 Taxman 429].
Therefore, an addition of Rs.3,12,33,694 is made to the total income of
the assessee. Penalty proceedings u/s.271(l)(c) of the Income-tax Act,
1961 are separately initiated.
4.0. Subject to above remarks and after discussion, the total income of
the assessee is computed as under:-
Total loss as per return of income Rs.3,32,38,250
Add:- As discussed in para 3.8. Rs.3.12.33,694
Total loss Rs. 20,04.556
5. On appeal, the ld.CIT(A) has deleted the addition by putting
reliance upon order of the ITAT in the case of CIT Vs. Alidhara Texpro
Engineers P.Ltd. reported (2011) 43 SOT 1 (Ahd); ACIT Vs. Nitin S.
Garg, ITA No.169/Ahd/2009. He also put reliance upon Hon’ble
Supreme Court’s decision in the case of CIT Vs. Sugauli Sugar Works
P.Ltd., 102 TAXMAN 713 (SC). Thus, the finding recorded by the
ld.CIT(A) in para 4.3.4 on this issue read as under:
“4.3.4 When the facts of the present case is analysed in the light of
these decisions, it is seen that the advances for the maintenance and a
part of the booking advances are still being demanded back by the
creditors. The balance part of the booking advance is also being
ITA No.2751/Ahd/2011
6
acknowledged in the balance sheet and the AO has not brought
anything on record to show that the appellant has obtained any benefit,
whether in cash or in any other manner whatsoever regarding these
liabilities. Hence the provisions of the section 41(1) are not applicable to
the facts of the present case.
4.3.5 The AO has relied upon the decision in the case of CIT V. TV
Sundaram lyenger & Sons Ltd. But in this case, the assessee had itself
written back the unclaimed time barred credit balances in its profit and
loss . This is not the situation in the present case. The appellant is still
the liabilities in its profit and loss account and there is noting in record
these have become time barred or that these have appellant’s money
due some statutory or contractual provisions.
4. Hence, the treatment of these credit balances by the AO as
income of the assessee is not correct. Accordingly, these additions are
deleted and this ground of appeal is allowed.”
6. The ld.DR while impugning finding of the ld.CIT(A) contended that
facts in these cases are of different nature. The assessee has collected
advances from the prospective buyers of the flats as well as deposits for
providing maintenance. However, it has neither given flats nor utilized
the maintenance of that purpose. The AO has specifically recorded a
finding that Tower D & E of Bhadralok Project for which it has taken
advance of Rs.1,69,35,279/- has been sold by the assessee to Asman
Trading P.Ltd. It has worked out the value under the head “work-in-
progress” of Rs.6.70 crores. This project was sold for a consideration of
Rs.2.92 crores. Thus, he pointed out that the assessee has nothing to
do for adjustment of these advances towards ultimate sale proceeds of
the flat buyers. In other words the advances taken from the flat buyers
was not going to be adjusted against cost of the flats, ultimately if any
given to these buyers, because the assessee has already sold the
project. It failed to produce that the advances received from the buyers
was adjusted against the money it has received from Asman Trading
P.Ltd. (“ASTPL”). Thus, he submitted that the liability towards those
advance has been ceased, and therefore, this receipt ought to have
been recognized as income in the hands of the assessee. He relied
upon the judgment of Hon’ble Gujarat High Court in the case of Gujtron
ITA No.2751/Ahd/2011
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Electronics P.Ltd. Vs. ITO, 83 taxmann.com 389 (Guj). He placed on
record copy of this decision.
7. We have considered submission of the ld.CIT-DR and gone
through the record with his assistance. The section 41(1) applies where
a trading liability was allowed as a deduction in an earlier year in
computing the business income of the assessee and the assessee has
obtained a benefit in respect of such trading liability in a later year by
way of remission or cessation of the liability. In such a case the section
says that whatever benefit has arisen to the assessee in the later year
by way of remission or cessation of the liability will be brought to tax in
that year. The principle behind the section is that the provision is
intended to ensure that the assessee does not get away with a double
benefit – once by way of deduction in an earlier assessment year and
again by not being taxed on the benefit received by him in a later year
with reference to the liability earlier allowed as a deduction.
8. The assessee has submitted that it has launched a scheme i.e.
Towers “D” and “E” at Bhadralok Project. It has received advances
from prospective buyers. However, when residential flats in Tower “D”
& “E” were under construction and possession of the same were not
handed over to the respective buyers, the assessee has shown these
advances as liability, because there prevailed contingency as to
finalization of sale. In its submission under para no. n & o, it has
highlighted following facts:
“n) Now, without prejudice to any of the above, in respect of booking
advances of Towers “D” and “E,”, the Ld. Assessing Officer has
mentioned in Para 3.6 of his assessment order, that the assessee
company has sold Tower “D” and “E” to Asman Trading Pvt. Ltd. for
consideration of Rs.2,92,00,000/- and therefore it has nothing to do
with the towers. Further, he has noted in the assessment order that
since there is no mention about the repayment of advances in the sale
deed with Asman Trading Pvt. Ltd., therefore the advances are no more
repayable and the liability has ceased to exist,
ITA No.2751/Ahd/2011
8
o) However, here we would like to invite Your Honour’s kind reference
that although the appellant company had sold Towers D and E, it had to
repay these advances to the respective members only. This was
because the project had ceased and no construction work was to be
done. The appellant company was already facing huge financial crisis
and huge statutory liabilities and any consideration realized from sale of
assets was utilized in offsetting statutory dues.”
9. A perusal of the above would indicate that the assessee has
received advances from buyers of the flats. However, without
constructing these flats, it has sold the whole project by treating it as
“work-in-progress”. In its reply, it has submitted that WIP was valued
at Rs.6.70 crores and the project was ultimately sold for a consideration
of Rs.2.92 crores. The question before us is, whether the receipt
received by the assessee as advance during the course of its business
can attain character of any cessation of liability. There is no dispute
with regard to the fact that intention behind this receipt was for
construction of the flats and sale thereof. Thus, it was an ordinary
trading receipt in the line of assessee’s business, though in the
accounts, it was recognized as advance from the customers. It is to be
appreciated that moment the assessee has valued WIP that means, it
has incurred expenditure which were crystallized in the form of WIP.
This WIP has been sold at lower price, and the business has been closed
down with regard to this project. In such situation what treatment
could be made to the advance received from the prospective buyers ?
To our mind, once it is percolated in the WIP and these advances would
ultimately be set off against ultimate sale consideration, then it is to be
construed that on sale of WIP, reduction of such advance constructively
taken by the assessee as an expenditure. It has been separately
recognized as a liability also. But no one has come present on behalf of
the assessee before the Tribunal. It is almost more than 20 years from
the receipt of these advances. The assessee has neither sold flats to
the customers nor recognized receipts from the customers as its income
for taxation. On efflux of time, we gathered intention of the assessee
that it is not going to repay these amounts to these customers neither it
ITA No.2751/Ahd/2011
9
is going to sell flats to them. With that background, we would like to
make reference to the judgment of Hon’ble Gujarat High Court in the
case of Gujtron Electronics (supra). In this case, the assessee has
shown a liability of Rs.7.87 crores under the head customer advances.
It revealed that in the financial year 1986-87, the assessee had
launched a sale promotion scheme for the sale of black and white TV
sets. As per the scheme, the assessee has collected a sum of Rs.500/-
from each customer by sale of coupons. Upon such customer in turn
enrolling other four members each, who also had purchased such
coupons, would entitle to receive TV set free of cost. The same benefit
would be available to newly enrolled members as well upon fulfillment
of conditions. This collection of Rs.500/- in this chain has accumulated
to Rs.7.87 crores and the assessee has been showing it under the head
liability continuously. In this background, the Hon’ble High Court has
confirmed order of the Tribunal whereby the Tribunal has held that
liability to pay has ceased. The relevant discussion of the Hon’ble High
Court in this behalf read as under:
“8. Learned counsel for the appellant submitted that this was not a case
of cessation of liability. The conditions laid down under section 41 of the
Act were not fulfilled. The authorities therefore, committed a serious
error in adding the said sum to the income of the assessee. She further
submitted that the ratio laid down by the Supreme Court in case
of CIT v. Sugauli Sugar Works (P.) Ltd. [1999] 236 ITR 518/102
Taxman 713 would apply. She submitted that the facts in case
of Sundaram Iyengar (supra) were different. Unlike in the said case, the
assessee has not transferred the amount in its profit and loss accounts.
Our attention was also drawn to two decisions this Court in case
of CIT v. Bhogilal Ramjibhai Atara [2014] 43 taxmann.com 55/222
Taxman 313 (Guj.) and in case of CIT v. Nitin S. Garg [2012] 22
taxmann.com 59/208 Taxman 16 (Guj.).
9. Facts of the present case, as concurrently held by the two Revenue
authorities and the Tribunal are somewhat peculiar. The assessee had
launched a scheme of sales promotion. Under such scheme, the
assessee would enroll a member, who would deposit a sum of Rs. 500/-
with the assessee company. If such a member in turn enrolled four
members, he would get one black and white TV set manufactured by
the assessee company free of cost. Same benefit would be available to
the enrolled members if they fulfilled this condition. The scheme was
operative for a period of 12 months. In other words, a member would
ITA No.2751/Ahd/2011
10
have to enroll four members within such period of 12 months in order to
get the benefit of earning a free TV set. Over a span of couple of years,
the assessee collected a huge sum of Rs. 7.87 crores by enrollment
membership fee of Rs. 500/- each.
10. As is bound to happen, in such a scheme requiring continuous chain
reactions, the chain would break at some stage. The amount of Rs. 7.87
crores represents the money deposited by those members. This amount
remained with the company over the years without any change
whatsoever. The Revenue authorities have found that there was no
activity at the hands of the assessee company in connection with the
scheme for past several years. Not a single customer had demanded the
money back nor the assessee had made any attempt to repay the
same. It was only when the Assessing Officer in the present assessment
proceedings raised the issue, the assessee made correspondence with
the customers. This, the Commissioner (Appeals) correctly categorized
as an afterthought. More importantly in all invoices, the signatures of
the member customers were missing. Their addresses were not
sufficient. Over the years, the company had also invested such amount
earning interest and used such interest for its purpose, of course,
offering interest income to tax.
11. In view of the concurrent findings of the Revenue authorities and
the Tribunal through which the above established facts emerged, we
have no reason to interfere. The decision of the Supreme Court in case
of Sundaram Iyengar (supra) would apply. In the said case, the Court
had held and observed as under:
“In the present case, the money was received by the assessee in
the course of carrying on his business. Although it was treated as
deposit and was of capital nature at the point of time it was
received, by efflux of time the money has become the assessee’s
own money. What remains after adjustment of the deposits has
not been claimed by the customers. The claims of the customers
have become barred by limitation. The assessee itself has treated
the money as its own money and taken the amount to its profit
and loss account. There is no explanation from the assessee why
the surplus money was taken to its profit and loss account even if
it was somebody else’s money. In fact, as Atkinson J. pointed out
that what the assessee did was the commonsense way of dealing
with the amounts.”
12. It is true that unlike in case of Sundaram Iyengar (supra), the
assessee has not taken such amount in its profit and loss account.
Nevertheless, by all accounts, the assessee has treated such amount as
its own. The scheme itself terminated many years back. Limitation of
claiming amount back has also seized. There is absolutely no movement
or correspondence between the assessee and its members with respect
to the claim or with respect to the deposited amounts.
ITA No.2751/Ahd/2011
11
10. We further make reference to the decision of Hon’ble Delhi High
Court referred by the ld.CIT-DR in the case of CIT Vs. Chipsoft
Technology P.Ltd., 26 taxmann.com 109 (Del). In this case, the
assessee had shown unpaid liability to an extent of Rs.38.51 lakhs on
account of its employees due pertained to certain salary payments
related back to 2000-01. The assessment year involved before the
Hon’ble High Court was of Asstt.Year 2005-06. The dues were to be
paid to roughly 170 employees. The assessee could not provide
complete details of the employees or confirmation. The ld.AO construed
that the liability has ceased. However, on appeal, the ld.CIT(A) deleted
the addition which were upheld by the Tribunal. However, the Hon’ble
High Court concurred with the AO and confirmed the addition. The
Hon’ble Court has considered all the decisions relied upon by the
assessee, viz. CIT Vs. Sundaram Iyengar & Sons Ltd., 222 ITR 334.
This decision has been relied upon by the AO also. Head note of this
decision reads as under:
“..The assessee had received certain deposits from customers in the
course of carrying on his business, which were originally treated as
capital receipts. Since these credit balances standing in favour of
assessee’s customers, were not claimed by the customers, the assessee
transferred such amounts to its profit and loss account. The assessee
did not include such amounts in its total income. The Assessing Officer
was of the view that because the surplus had arisen as a result of trade
transactions, the amounts had a character of income, and accordingly
he added the same in its income. On appeal, the Commissioner
(Appeals) accepting assessee’s contention held thai such an amount
could not be treated as income either under section 41{1) or under
section 28, since these were excess trading advances given by the
clients to the assessee. Therefore, lie deleted the addition made by the
Assessing Officer. The Tribunal held that the amount received in course
of trade was of capital nature, the Tribunal, thereafter, straightway
applied the principle of Morley v. Tattersall [1939J 7 ITR 316 (CA) and
held since it was of a capital nature at the time of the receipt, it could
not become assessee’s income later on.
The Tribunal also rejected reference application under section 256(2) on
the ground that no question of law arose. The High Court held that the
question sought to be agitated was completely concluded by the
decision of that Court in the case of CITv, A.VM. Ltd. [1984] 146 ITR
355 and rejected application made under section 256(2).”
ITA No.2751/Ahd/2011
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11. In the light of proposition laid down in all these judgment, if we
look into the facts of the present case, then it would reveal that the
assessee has received trade advance for sale of certain flats to
prospective buyers which were ultimately not construed by it and
incomplete project was sold under the head “work-in-progress”. It has
not returned money to these customers in the last fifteen years. It has
not created an arrangement with buyer of the WIP that these customers
would get flats at reduced price by the amount received by the assessee
as advance. It has simply retained these amounts under the garb of
liability without paying any taxes. The judgment Hon’ble Supreme Court
in the case of Sundaram Iyengar & Son Ltd. (supra) is fully applicable
on the facts of the present case. Therefore, we allow appeal of the
Revenue and reverse finding of the ld.CIT(A), and restore that of the
assessment order.
12. In the result, appeal of the Revenue is allowed.
Order pronounced in the Court on 14th December, 2021 at Ahmedabad.
Sd/- Sd/-
(PRADIPKUMAR KEDIA) (RAJPAL YADAV)
ACCOUNTANT MEMBER VICE-PRESIDENT
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