Lokhandwala Kataria Construction Pvt. Ltd. v DCIT (2023)104 ITR 84 (Mum)(Trib)

S. 37(1) : Business expenditure-Bogus Purchases-Information received from investigation wing Entire bogus purchase cannot be added-Addition restricted to 12.5% of alleged bogus purchases-Insurance premium of director paid by Company-Not incurred wholly and exclusively for the purpose of business-Not allowable as deduction. [S. 133(6)]

The assessee is engaged in business of development and construction of residential units. Taxation manager of the assessee company did not informed CA about Order due to inadvertent oversight and the same was supported by an affidavit from Taxation Manager. Further, insolvency proceedings before NCLT. There exists sufficient cause and delay of 177 days was to be condoned.

AO made addition by disallowing entire purchases of Rs. 94.02 Lakhs. Notice u/s. 133(6) to supplier returned “unserved”. Assessee contended that purchases were made through brokers. Payments made through banking channel. CIT(A) relied on judgement of Hon’ble SC in NK Proteins (SLP No. 759/2017 dated 16.01.2017) and upheld entire addition. On appeal ITAT held that without purchase of construction material, business could not have been carried out. Therefore, disallowance was restricted to 12.5% of the alleged bogus purchase. Judgement of Bombay HC in the case of PCIT vs Paramshakti Distributors Ltd. (ITA No. 413/2017 dated 15.07.2019) relied upon. Insurance premium of director paid by Company was personal liability of directors. Not incurred wholly and exclusively for business. Therefore, not allowable u/s. 37(1). (AY 2010-11, 2011-12)