TaxTMI 
TaxTMI 
2015 (12) TMI 507
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....s and addresses of the payee. (ii) The muster roll relied on by the Ld. CIT(A) had not been produced before the Assessing officer. 3. The Ld. CIT(A) erred in deleting the disallowance of Rs. 1,72,696/- made u/s. 40(a)(ia). The Ld. CIT(A) has allowed the assessee's claim without considering the following facts:- (i) The decision of the Hon'ble Apex Court in the case of Hindustan Cocoa Cola Pvt. Ltd. is not relevant in this case as the same was rendered under the provision of sec.201. (ii) No certificate u/s. 197 was produced before the Assessing officer and, therefore, there is violation of rule 46A(3). 4. The Ld. CIT(A) erred in deleting the addition of Rs. 45,37,820/- made under section 40a(ia) as decision of the Ld. CIT(A) was only based on the submission made by the assessee before her and the same is contrary to the stand taken by the assessee before the Assessing officer. Also, the Ld. CIT(A) ought to have considered following fact while deciding the issue:- (i) The muster roll said to have been produced before the Assessing officer had actually not been produced by the assessee before the Assessing officer and no such argument was raised during the course of asses....
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....rrect address of the payee, nature of work executed etc. In the case of the assessee, they have not produced any such evidences. Considering these facts, part of the expenditure claimed without any supporting evidences, under the above heads, are disallowed being unexplained expenditure. Accordingly, 10% of the expense claimed under Earth work, earth work excavation, earth work filling and earth work leveling are disallowed. The addition so made being expenses not supported by evidence is worked out at Rs. 49,77,024/-. The percentage of profit after including the disallowance will work out to 8.93% which is quite reasonable." 5. The Ld. CIT(A) has deleted the addition made by the Assessing officer and the relevant findings of the Ld. CIT(A) are reproduced herein below for the sake of convenience: 5.3 I have gone through the assessment order and the submissions of the assessee. The assessee has furnished month wise details of earth work, levelling and filling. He has also filed weekly muster rolls duly signed by the labourers and corresponding internal vouchers made for the payments to these labourers. It was accepted by the appellant that the complete names and addresses of such....
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....d of 10% disallowance made by the Assessing officer. The Assessing officer has worked out the net profit rate at 8.93% which is quite reasonable in the facts and circumstances of the case. 7. The Ld. Counsel for the assessee, on the other hand, argued that the withdrawals have been made from the Bank and the payments have been made to the labourers. 8. We have heard the rival contentions and perused the facts of the case. Undisputedly, the facts of the present case are that the expenses, as mentioned hereinabove, with regard to Earth work excavation, Earth work filling and Earth work levelling have been debited in the Profit and Loss Account of the assessee and such expenses have been declared to have been incurred but they are not supported with any of the evidence whatsoever. The month-wise statement furnished before the Ld. CIT(A), in fact, is no evidence for incurring of expenses, as has rightly been argued by the Ld. DR. None of the evidence with regard to incurring of labour expenses have been placed on record before any of the authorities below or even before us. As argued by the Ld. DR, the cash withdrawals from the Bank are not sufficient evidence to prove that the cash ....
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....ucted on the impugned payments u/s. 194C of the Act which has been conceded by the Ld. Counsel for the assessee as well. The Ld. CIT(A) has relied upon the decision of the Hon'ble Apex Court in the case of Hindustan Coco Cola Pvt. Ltd. wherein it was held that if the recipient has shown this income in its return of income, then such disallowance would amount to double disallowance and accordingly, deleted the said addition. However, there is no evidence placed on record before any of the authorities below, especially before the ld. CIT(A) there is no claim as such that the tax has been paid by the recipient. Therefore, the Ld. CIT(A) is not justified in deleting the said addition. The Ld. Counsel for the assessee has conceded in the open court that the deletion has been wrongly made by the Ld. CIT(A) and the Revenue's appeal on this ground should be allowed. 12. In the circumstances and facts of the case, as discussed hereinabove, Ground No. 3 of the Revenue is allowed. 13. As regards Ground No. 4, the brief facts of the case as emanating from the order of the Assessing officer at pg. 3 are reproduced herein below for the sake of convenience: "5. Assessee has claimed a sum of R....
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....sh payment vouchers to each persons for such work. It is seen that for this, evidence were produced before the assessing officer. In view of the specific submission of the assessee the assessing officer is not right in holding and presuming that such work could be done only through licensed person, and therefore even if the payments were made to the labourers through leaders/employees of the assessee, the provisions of section 40(a)(ia) would be applicable. The Assessing officer while making this disallowance has not brought out any defect in the books of accounts or the muster rolls and internal payment vouchers that were maintained by the assessee, as to how they are not valid. The assessing officer has mentioned in the assessment order that six numbers of cash voucher books were produced during the course of assessment proceedings showing payments to different persons which are claimed to be the respective site leaders to whom payments were made by the assessee for further disbursement to the labours employed by them. Since the payments made to the persons is not in the nature of contract payments for carrying out any contract work, therefore the assessing officer is not correct....