The ITO, -2(1), v. M/s Falodi Construction,

1 IN THE INCOME TAX APPELLATE TRIBUNAL INDORE BENCH INDORE BEFORE SHRI JOGINDER SINGH JUDICIAL MEMBER AND SHRI V.K. GUPTA ACCOUNTANT MEMBER ITA NO.782/IND/2007 A.YS. 2004-05 ASSTT. COMMISSIONER OF INCOME TAX 2(1) UJJAIN APPELLANT VS M/S PHALOUDI CONSTRUCTION NARSINGHGARH DISTT. RAJGARH PAN AAFFP-9523-Q RESPONDENT C.O. NO. 9/IND/2008 (ARISING OUT OF ITA NO. 782/IND/07) M/S PHALOUDI CONSTRUCTION NARSINGHGARH DISTT. RAJGARH OBJECTOR VS ASSTT. COMMISSIONER OF INCOME TAX 2(1) UJJAIN RESPONDENT APPELLANT BY : SMT. APARNA KARAN SR. DR RESPONDENT BY : SHRI S.C. GOYAL 2 O R D E R PER JOGINDER SINGH JM THIS APPEAL IS BY THE REVENUE AND CROSS OBJECTION B Y THE ASSESSEE AGAINST THE ORDER OF THE LEARNED CIT(A) DATED 8 TH OCTOBER 2007. FIRST WE SHALL TAKE UP THE APPEAL OF THE REVENUE WHEREIN THE FIRST GROUND RAISED IS THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE C ASE THE LEARNED COMMISSIONER OF INCOME-TAX (APPEALS) ERRED IN RESTR ICTING THE DISALLOWANCE OF LABOUR CHARGES OF RS. 2 LACS INSTEA D OF RS.20 LACS MADE BY THE ASSESSING OFFICER. 2. WE HAVE HEARD SMT. APARNA KARAN SR. DR AND SHRI S.N. GOYAL LD. COUNSEL FOR THE ASSESSEE. THE CRUX OF ARGUMENT S PUT FORTH BY SMT. APARNA KARAN IS THAT THE ASSESSEE IS A CONTRACTOR E NGAGED IN CONSTRUCTION OF ROADS. THE ASSESSEE DID NOT GIVE AN Y JUSTIFICATION FOR EMPLOYING HUGE LABOUR FOR CONSTRUCTION AND THE MUST ER ROLL PREPARED BY THE ASSESSEE IS ALSO DOUBTFUL. ON THE OTHER HAND MR. GOYAL STRONGLY DEFENDED THE IMPUGNED ORDER BY EXPLAINING THAT A SL IP SHOT HAS BEEN MADE BY THE ASSESSING OFFICER ESPECIALLY WHEN THE A SSESSEE ATTENDED THE ASSESSMENT PROCEEDINGS ON A NUMBER OF OCCASIONS AND DUE TO TIMELY COMPLETION OF CONSTRUCTION SO MUCH LABOUR W AS EMPLOYED. OUR ATTENTION WAS INVITED TO PAGE 28 OF THE PAPER BOOK BY FURTHER SUBMITTING THAT THE GROSS PROFIT AS WELL AS NET PROFIT OF THE ASSESSEE IS IN THE 3 INCREASING TREND. IT WAS ALSO EXPLAINED THAT TO THE CONTRACTOR THE PAYMENT WAS MADE THROUGH CHEQUE AND TO THE LABOUR THE PAYMENT WAS MADE DIRECTLY IN CASH. OUR ATTENTION WAS ALSO INVIT ED TO PAGE 30 OF THE PAPER BOOK. IT WAS CLAIMED THAT ALL THE EXPENSES AR E FULLY VOUCHED AND VERIFIABLE. A PLEA WAS ALSO RAISED THAT THE MUSTER ROLLS OF LABOURS ARE PREPARED BY THE SITE SUPERVISORS ON DAY TO DAY BASI S IN WHICH THEY RECORD THEIR ATTENDANCE. ON PERUSAL OF RECORD AND AFTER HEARING THE RIVAL SUBMISSIONS IT IS SEEN THAT THE ASSESSEE IS A CONT RACTOR ENGAGED IN THE BUSINESS OF CONSTRUCTION OF ROADS. DURING THE YEAR THE ASSESSEE MADE PAYMENT TO LABOURS TO THE TUNE OF RS.1 73 57 055/- OUT OF WHICH THE ASSESSING OFFICER MADE AD HOC ADDITION OF RS. 20 LA CS ON THE BASIS THAT ATTENDANCE ON LABOUR PAYMENT SHEETS IS NOT ON DAY T O DAY BASIS NAMES OF THE LABOURS ARE FICTITIOUS THE PAYMENT WAS MADE IN EXCESS ON THE CONTRACT WORK WHEREAS IN FACT THE NUMBER OF LABOUR WAS LESS THE PAYMENT OF RS.35 49 510/- WAS MADE DIRECTLY TO LABO URS PAYMENT TO PETTY CONTRACTORS DURING LAST QUARTER IS RS. 52 0 5 100/- AND THE PAYMENT OF RS.35 49 510/- WAS DIRECTLY MADE TO LABOURS WHIC H AS PER THE ASSESSING OFFICER IS NOT POSSIBLE. ON APPEAL THE L EARNED COMMISSIONER OF INCOME TAX (APPEALS) ON CONSIDERATION OF FACTS DOCUMENTARY EVIDENCE AND THE SUBMISSIONS OF THE ASSESSEE MADE B EFORE HIM DISALLOWED THE AMOUNT OF RS.2 LACS OUT OF THE DISAL LOWANCE OF RS.20 LACS MADE BY THE ASSESSING OFFICER WHICH IS UNDER CHALL ENGE BEFORE US. 4 3. IF THE TOTALITY OF FACTS ASSERTIONS MADE BY THE RESPECTIVE COUNSELS AND THE MATERIAL AVAILABLE ON FILE IS ANALYSED IT IS SEEN THAT THE MUSTER ROLLS ARE PREPARED BY THE SITE SUPERVISORS AND THE ATTENDANCE IS MARKED OF THE LABOURS AFTER VERIFYING THEIR PHYSICAL PRESE NCE AND THE PAYMENTS ARE MADE TO THE LABOURS ON THE BASIS OF THEIR WORK/ ATTENDANCE MADE IN THE MUSTER ROLLS. WE HAVE ALSO PERUSED THE ORIGINA L MUSTER ROLL WHEREIN MOST OF THE LABOURS HAVE PUT THEIR THUMB IMPRESSION S AND VERY FEW HAVE PUT THEIR SIGNATURES. THE ASSESSING OFFICER HAS NE ITHER RECORDED THE STATEMENTS OF ANY LABOUR NOR CONTROVERTED THEIR ATT ENDANCE. MERELY PRESUMING THAT THE CLAIMED LABOUR WAS MORE THAN NEE DED IS NOT JUSTIFIED BECAUSE IT IS THE ASSESSEE WHO IS TO SAFEGUARD HIS INTEREST AND ALSO TO DECIDE AS TO HOW THE BUSINESS IS TO BE DONE. THE AS SESSING OFFICER IS NOT EXPECTED TO SIT IN THE CHAIRMAN OF A BUSINESSMA N AND ONLY EXPECTED THAT THE INTEREST OF REVENUE IS SAFEGUARDED WITHIN THE PRESCRIBED LIMIT. EVEN THERE IS NO ALLEGATION THAT ANY LABOUR HAS DEN IED TAKING ANY PAYMENT. THE CLAIM OF THE ASSESSEE IS FULLY SUPPOR TED BY BILLS VOUCHERS AND MUSTER ROLL THEREFORE IN THE ABSENCE OF ANY C ONTRARY FINDING THE STAND OF THE ASSESSING OFFICER CANNOT BE APPRECIATE D. EVEN OTHERWISE A LUMP SUM DISALLOWANCE OF RS. 20 LACS HAS BEEN MADE BY THE ASSESSING OFFICER WITHOUT ANY BASIS. AS FAR AS THE OBSERVATIO N OF THE ASSESSING OFFICER AT PAGE 5 OF THE ASSESSMENT ORDER REGARDING THE PAYMENT TO PETTY CONTRACTOR TO THE TUNE OF RS.53 05 100/- AND DIRECTLY TO THE LABOUR TO 5 THE TUNE OF RS.35 49 510/- (TOTAL RS.88 54 610/-) I N THE LAST QUARTER OF THE YEAR TO THE EFFECT THAT IT IS NOT POSSIBLE IS CONCE RNED WE FIND THAT IT IS ALSO WITHOUT ANY BASIS AND IS PURELY BASED ON PRESU MPTION. WE ARE OF THE CONSIDERED OPINION THAT PRESUMPTION CANNOT TAKE THE SHAPE OF EVIDENCE HOWEVER STRONG IT MAY BE UNLESS AND UNTI L IT IS SUPPORTED WITH DOCUMENTARY EVIDENCE. EVEN ON A QUERY FROM THE BEN CH ABOUT THE OBSERVATION OF THE ASSESSING OFFICER IT WAS EXPLAI NED BY THE LD. COUNSEL FOR THE ASSESSEE THAT IN THE LAST QUARTER THE JOB I S ALWAYS IN FULL SWING TO ACHIEVE THE TARGET AND ALSO FOR TAKING PAYMENTS FRO M THE CONCERNED DEPARTMENTS. IT WAS FURTHER EXPLAINED THAT IF THE WORK IS NOT COMPLETED WITHIN THE STIPULATED PERIOD THE BUDGETS MIGHT GET LAPSED THEREFORE TAKING OF PAYMENT FROM THE RESPECTIVE DEPARTMENT AL SO BECOME CUMBERSOME CONSEQUENTLY COMPLETION OF WORK WITHIN THE GIVEN TIME IS BOUND TO BE THERE. THE ASSESSEE MADE PAYMENT OF RS. 80/- PER DAY TO MALE AND RS.70/- TO FEMALE LABOUR. EVEN IN THE ASS ESSMENT ORDER FRAMED U/S 143(3) OF THE ACT FOR THE ASSESSMENT YEA R 2003-04 IDENTICAL RATES WERE ACCEPTED BY THE SAME ASSESSING OFFICER. EVEN OTHERWISE THE PROVISIONS OF MINIMUM WAGES ACT FOR PAYMENT TO LAB OUR HAVE TO BE ADHERED TO. ACCORDING TO MINIMUM WAGES ACT RS.78. 77 PER DAY WAS REQUIRED TO BE PAID TO EACH LABOUR. CONSEQUENTLY T HE LABOUR PAYMENT WAS UNIFORM AT ALL THE SITES. EVEN OTHERWISE THE OFFICIALS FROM THE LABOUR DEPARTMENT/CONCERNED DEPARTMENT USED TO CHEC K THE RECORD AND 6 ALSO USED TO VERIFY WHETHER THE PAYMENTS ARE MADE I N ACCORDANCE WITH MINIMUM PAYMENT ACT. NORMALLY IN THE ROAD CONSTRUCT ION THE LABOURS ARE NOT ON PERMANENT BASIS AND SOMETIMES THE ASSESS EE MAY PAY MORE MONEY IN ORDER TO COMPLETE THE WORK IN THE GIVEN TI ME. THE PER CENTAGE OF PAYMENT TO PETTY CONTRACTOR IN PROPORTIONATE TO NET CONTRACT RECEIPT IS ON LOWER SIDE I.E. 12.43% AGAINST 16.87% AND 19.16% IN THE PRECEDING ASSESSMENT YEARS. AT THE SAME TIME THE NET PROFIT RATE HAS ALSO INCREASED TO 4.65% FROM 4.52% IN THE PRECEDING ASSE SSMENT YEAR. EVEN OTHERWISE OUT OF THE TOTAL PAYMENT OF RS.1 73 57 0 55/- THE AMOUNT OF RS.1 07 51 160/- HAS BEEN PAID TO PETTY CONTRACTORS THROUGH CHEQUE AND ONLY RS.66 05 895/- WAS DIRECTLY PAID IN CASH TO LA BOURS. IN THE PRECEDING YEAR IDENTICALLY THE DISALLOWANCE OF RS.5 0 000/- WAS MADE ON ESTIMATE BASIS AGAINST WHICH NO APPEAL WAS PREFERRE D BY THE ASSESSEE. THE TOTAL CONTRACT RECEIPTS IN THE PRESENT ASSESSME NT YEAR ARE RS.9.43 CRORES AS AGAINST RS.10.83 CRORES IN PRECEDING YEAR . IN VIEW OF THE ABOVE FACTS IN PRINCIPLE THERE IS NO INFIRMITY IN THE ORDER OF THE LEARNED COMMISSIONER OF INCOME TAX (AP PEALS). THE ASSESSEE HAS ALSO PREFERRED CROSS OBJECTION AGAINST THE SUSTENANCE OF THE ADDITION OF RS.2 LACS ON ACCOUNT OF LABOUR PAYM ENT. IT WAS EXPLAINED BY THE LD. COUNSEL FOR THE ASSESSEE THAT EVEN IF TH E PRECEDING YEAR DISALLOWANCE OF RS.50 000/- IS MADE THE BASIS STIL L THE DISALLOWANCE IN THE PRESENT ASSESSMENT YEAR MAY NOT BE MORE THAN TH AT. IT WAS FURTHER 7 EXPLAINED THAT KEEPING IN VIEW THE SMALLNESS OF AMO UNT AND THE RECEIPT OF THE FULL YEAR NO APPEAL WAS PREFERRED BY THE AS SESSEE IN THE PRECEDING ASSESSMENT YEAR DOES NOT MEAN THAT THE D ISALLOWANCE WAS ACTUALLY JUSTIFIABLE. WE FIND FORCE IN THE SUBMISS IONS OF THE LD. COUNSEL FOR THE ASSESSEE BECAUSE NO PLAUSIBLE REASON HAS BE EN MENTIONED BY THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) E VEN FOR DISALLOWING THE AMOUNT OF RS. 2 LACS IN THE IMPUGNED ORDER. HO WEVER TO PUT AN END TO THE LITIGATION AND THE HUGE AMOUNT PAID BY THE A SSESSEE AS LABOUR PAYMENTS THE AMOUNT OF RS.2 LACS IS REDUCED TO RS. 1 LAC THEREFORE THE CROSS OBJECTION OF THE ASSESSEE IS PARTLY ALLOWED. RESULTANTLY THE GROUND RAISED BY THE REVENUE IS D ISMISSED AND THE CROSS OBJECTION OF THE ASSESSEE IS PARTLY ALLOWED. 4. THROUGH THE NEXT GROUND THE REVENUE HAS CHALLENG ED THE DELETION OF ADDITION OF RS.12 60 000/- BEING HIRE MACHINERY CHARGES BY THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) WITHO UT CONSIDERING THE DETAILED FINDING OF THE ASSESSING OFFICER. THE STAN D OF THE LEARNED SENIOR DEPARTMENTAL REPRESENTATIVE IS THAT THE DETAILED FI NDING GIVEN IN THE ASSESSMENT ORDER HAS BEEN IGNORED BY THE LEARNED CO MMISSIONER OF INCOME TAX (APPEALS) IN COMING TO A PARTICULAR CONC LUSION. IT WAS ALSO CONTENDED THAT BILLS WERE NOT PREPARED ON DAY TO DA Y BASIS AND ACTUALLY WHERE THE MACHINE WAS PUT TO USE IN PLACE OF LABOUR WAS ALSO NOT EXPLAINED BY THE ASSESSEE. THE ASSESSMENT ORDER WA S SUPPORTED. ON 8 THE OTHER HAND THE LD. COUNSEL FOR THE ASSESSEE C LAIMED THAT EACH AND EVERY PAYMENT AND USE OF MACHINERY WAS EXPLAINED DU RING THE ASSESSMENT PROCEEDINGS AND ALSO BEFORE THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS). IT WAS ALSO CLAIMED THAT FOR COMPLETION OF A PARTICULAR WORK THE MACHINE AS WELL AS THE LABOUR ARE EMPLOYED AS PER SITUATION AS THE WORK IS INTER-CONNECTED. OUR ATTEN TION WAS INVITED TO VARIOUS PAGES OF THE PAPER BOOK. ON PERUSAL OF REC ORD AND AFTER HEARING THE RIVAL SUBMISSIONS IT IS SEEN THAT OUT OF CLAIM ED EXPENSES ON ACCOUNT OF MACHINE HIRE CHARGES TO THE TUNE OF RS.25 25 350 /- THE ASSESSING OFFICER DISALLOWED A SUM OF RS.12 60 000/-. FROM TH E ASSESSMENT STAGE ITSELF THE CLAIM OF THE ASSESSEE IS THAT APART FRO M ITS OWN MACHINE THE ASSESSEE TOOK SOME MACHINES LIKE JCB MACHINE EXCAV ATOR ROAD ROLLERS HOT MIX PLANT DUMPERS ETC. ON HIRE FROM DIFFERENT PARTIES AND MADE PAYMENTS OF RS.25 25 350/- MOSTLY THROUGH CHEQ UES TOWARDS HIRE CHARGES. IT WAS FURTHER CLAIMED THAT COMPLETE VOUC HERS FOR SUCH HIRE CHARGING WERE MAINTAINED AND WERE FULLY VERIFIABLE. IT WAS ALSO CLAIMED THAT THE HIRE CHARGES BILLS ARE PREPARED ON COMPUTE R THEREFORE NO BILL NUMBER IS MENTIONED. WE HAVE GONE THROUGH THE STAT EMENTS OF SHRI KAILASH NARAIN GUPTA NARSINGGAD WHEREIN HE HAS CL EARLY TENDERED THAT HE RECEIVED THE HIRE CHARGES AT THE MARKET RATE OF RS.5000/- PER MONTH THROUGH CHEQUE AS WELL AS IN CASH BY ADMITTING THE FACT THAT THE MACHINE WAS GIVEN ON HIRE TO THE ASSESSEE THEREFORE NO AD VERSE INFERENCE CAN 9 BE DRAWN(PAGES 6 TO 11 OF THE PAPER BOOK). IDENTIC ALLY FOR THE ASSESSMENT YEAR 2003-04 THE ASSESSEE HIRED STONE CR USHING MACHINE AND PAID RS. 60 000/- FOR THE WHOLE YEAR WHICH WAS ACCEPTED BY THE REVENUE IN THE ASSESSMENT ORDER FRAMED U/S 143(3) O F THE ACT. REGARDING THE AMOUNT OF RS. 2 LACS PAID TO M/S R.K. CONSTRUCTION A DETAILED REASONING HAS BEEN MENTIONED IN THE IMPUGN ED ORDER. SIMILAR IS THE SITUATION FOR DUMPERS AND CONSEQUENT PAYMENTS M ADE BY THE ASSESSEE AND IDENTICAL ACCEPTANCE IN THE ASSESSMENT ORDER FRAMED U/S 143(3) FOR THE EARLIER YEAR. SIMILAR IS THE SITUATI ON FOR JCB MACHINE WHICH WAS EMPLOYED IN THE WORK OF VARIOUS PARTIES MENTION ED AT PAGE 7 OF THE IMPUGNED ORDER. THE FACTS MENTIONED IN THE IMPUGNED ORDER WERE NOT CONTROVERTED BY THE REVENUE AND THE OBSERVATIONS MA DE IN THE ASSESSMENT ORDER ARE NOT SUPPORTED WITH ANY DOCUMEN TARY EVIDENCE. THE CLAIMED EXPENSES ARE VERY MUCH NECESSARY FOR TH E SMOOTH FUNCTIONING OF THE BUSINESS AND TIMELY COMPLETION O F WORK. IN VIEW OF THESE FACTS THERE IS NO INFIRMITY IN THE IMPUGNED ORDER CONSEQUENTLY THIS GROUND OF THE REVENUE IS ALSO DISMISSED. 5. THE LAST GROUND PERTAINS TO DELETING THE ADDITIO N BY THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) OF RS. 5 35 00 0/- CLAIMED TO BE BOGUS CASH CREDITS. THE STAND OF THE REVENUE IS THA T THE CREDIT WORTHINESS AND GENUINENESS OF TRANSACTION WAS NOT P ROVED BY THE ASSESSEE. ON THE OTHER HAND IT WAS EXPLAINED BY THE LD. COUNSEL FOR 10 THE ASSESSEE THAT OUT OF FOUR CREDITORS ONE IS CLO SE RELATIVE AND REMAINING THREE ARE STRANGERS. IT WAS FURTHER EXPL AINED THAT ALL THE PERSONS WERE PRODUCED BEFORE THE ASSESSING OFFICER THE MONEY WAS TAKEN AT 12% INTEREST RATE AND EVEN TDS WAS MADE. R ELIANCE WAS PLACED ON THE DECISION IN CIT V. METACHEM INDUSTRIE S; 245 ITR 160 (M.P.) NEMICHAND KOTHARI V. CIT; 264 ITR 254 (GAU) ; CIT V. ROHINI BUILDERS; 256 ITR 360 (GUJ); CIT V. JEETA KHAN; 211 CTR 479 (P&H) AND LABHCHAND BOHARA V. ITO; 219 CTR (2008) 572 (RAJ). HOWEVER THE LEARNED SR. DR DEFENDED THE ASSESSMENT ORDER. ON PERUSAL OF RECORD AND ON CONSIDERATION OF RIVAL SUBMISSIONS IT IS SEEN THAT THE ASSESSEE TOOK RS.1 50 000/- FROM S HRI PARVINA SHAH RS.1 50 000/- FROM SMT. PREMLATA GARG RS.1 LAC FRO M SHRI PRANAYA MALPANI AND RS. 1 35 000/- FROM SMT. USHA GUPTA (T OTAL RS. 5 35 000/-) WHICH WERE ADDED U/S 68 OF THE ACT IN THE INCOME OF THE ASSESSEE. ON APPEAL THE LEARNED COMMISSIONER OF INCOME TAX (APP EALS) DELETED THE ADDITION. IT IS SEEN THAT THE COMPLETE DETAILS LIK E NAMES DATES OF DEPOSITS ADDRESSES AMOUNTS SOURCE OF DEPOSIT AND PANS OF RESPECTIVE PARTIES WERE FURNISHED BEFORE THE ASSESSING OFFICER . EVEN THE CREDITORS WERE EXAMINED U/S 131 OF THE ACT. THE DEPOSITS WER E RECEIVED THROUGH ACCOUNT PAYEE CHEQUES. THE CREDITORS ARE INCOME TAX ASSESSEES AND ARE REGULARLY FILING THEIR RETURNS. THE PANS OF TH E CREDITORS ALONG WITH JURISDICTION OF THE ASSESSING OFFICER WERE ALSO FUR NISHED BY THE 11 ASSESSEE. THE SOURCE OF SUCH DEPOSITS WAS ALSO EXPL AINED AND EVEN THE CREDITORS CONFIRMED THROUGH THEIR RESPECTIVE CORRES PONDENCE/LETTERS THAT THE AMOUNTS WERE GENUINE. THEIR STATEMENTS WERE RE CORDED WHEREIN THEY HAVE SPECIFICALLY ADMITTED THE FACT OF LOAN AN D ALSO EXPLAINED THEIR SOURCE OF INCOME AND AVAILABILITY OF FUNDS. THE PHO TOCOPIES OF BANK ACCOUNTS OF THE CREDITORS WERE ALSO FURNISHED BY TH E ASSESSEE. IN VIEW OF THESE FACTS AND THE JUDICIAL PRONOUNCEMENTS CITED B Y THE LD. COUNSEL FOR THE ASSESSEE/DULY CONSIDERED BY THE LEARNED COMMISS IONER OF INCOME TAX (APPEALS) WE FIND NO INFIRMITY IN THE ORDER OF THE LD. FIRST APPELLATE AUTHORITY AND CONFIRM THE SAME. FINALLY THE APPEAL OF THE REVENUE IS DISMISSED AN D THE CROSS OBJECTION OF THE ASSESSEE IS PARTLY ALLOWED. ORDER PRONOUNCED IN OPEN COURT ON 16 TH APRIL 2010. (V.K. GUPTA) (JOGINDER SINGH) ACCOUNTANT MEMBER JUDICIAL MEMBER APRIL 16 2010 COPY TO: APPELLANT RESPONDENT CIT CIT(A) DR G UARD FILE *DBN/