Income Tax Appellate Tribunal - Ahmedabad
Bhavya Developers, Ahmedabad vs Department Of Income Tax on 9 January, 2015
आयकर अपील य अ धकरण, अहमदाबाद यायपीठ 'सी' अहमदाबाद ।
IN THE INCOME TAX APPELLATE TRIBUNAL
"C" BENCH, AHMEDABAD
ी एन0एस0 सैनी, लेखा सद य एवं ी कुल भारत, या यक सद य के सम
BEFORE SHRI N.S. SAINI, ACCOUNTANT MEMBER AND
SHRI KUL BHARAT, JUDICIAL MEMBER
आयकर अपील सं./ ITA No. 1513/Ahd/2011
नधारण वष/Assessment Year: 2007-08
The ITO, M/s. Bhavya Developers,
Ward-9(2), Vs 4, Sahyog Plaza, Nr.
Ahmedabad Engineering College,
Sabarmati, Ahmedabad
PAN : AAHFB 4935 E
अपीलाथ / (Appellant) यथ / (Respondent)
Revenue by : Shri Nimesh Yadav, Sr. DR.
Assessee(s) by : None
सु नवाई क तार ख/ Date of Hearin g : 30/12/2014
घोषणा क तार ख / Date of Pronouncement: 09/01/2015
आदे श/O R D E R
PER SHRI N.S. SAINI, ACCOUNTANT MEMBER:
This is an appeal filed by the Revenue against the order of the Commissioner of Income Tax (Appeals)-XV, Ahmedabad dated 29.03.2011 for Assessment Year 2007-08.
2. The Revenue has raised following grounds of appeal:-
1. The ld. Commissioner of Income-tax (A)-XV, Ahmedabad has erred in law and on facts in deleting the addition of Rs.11,31,790/- made by the Assessing Officer on account of disallowance of expenses u/s 40(a)(ia) of the Act.ITA No. 1513/Ahd/2011
ITO vs. M/s. Bhavya Developers For AY 2007-08 2
2. On the facts and in the circumstances of the case, the ld. CIT(A)- XV, Ahmedabad ought to have upheld the order of the Assessing Officer.
3. It is therefore, prayed that the orde3r of the ld. Commissioner of Income-tax (A)-XV, Ahmedabad may be set-aside and that of the Assessing Officer be restored.
3. Notice of hearing, fixing the date of hearing of the appeal on 30.12.2014, was sent through the Departmental Representative on 20.11.2014. The Departmental Representative has filed a letter dated 28.11.2014 from the Income-tax Officer, Ward-4(2)(2), Ahmedabad stating that the notice was served on the assessee on 28.11.2014. When the case was called for hearing, none was present on behalf of the assessee and neither any adjournment application was filed. Therefore, the appeal of the Revenue was disposed of considering the submissions of the Departmental Representative.
4. The brief facts of the case are that the Assessing Officer has made addition u/s 40(a)(ia) of Rs.11,31,786/- by observing as under:-
"3.Disallowance u/s.40(a)(ia)-labour/transport/professional charges On verification of the details filed during the course of assessment proceedings, it is noticed that the assessee has paid/credited labour/transport/carting charges in the following accounts without complying the provisions of section 194C r.w.s 40(a)(ia) of the I.T. Act. Accordingly, vide this office order sheet entry dated 22/12/2009, the assessee was required to snow cause as to why an amount of Rs.11,31,786/- should not be disallowed u/s. 40(a)(ia) of the Income-tax Act, 1961.
No. Name of the person Amount Remarks
1 Shri S. I. Carting Contractor 30000 TDS not made
2 Shri S. I. Carting Contractor 28656 TDS not made
3 Shiv Transport 33600 TDS not made
ITA No. 1513/Ahd/2011
ITO vs. M/s. Bhavya Developers
For AY 2007-08
3
4 Shree Om Carting 22500 TDS not made
5 Ramesh Ramjibhai Patel 240000 TDS not made
6 Ramesh Ramjibhai Patel 36600 TDS not made
7 Mukesh G. Patel 700000 TDS not made
8 Mukesh G. Patel 40430 TDS not made
TOTAL 1131786
In response thereof, the assessee filed its reply dated 23/12/2009, in which it has taken grounds for not disallowing the said amounts the same is dealt with as under:
(A) Shri S. I. Carting Contractor In respect of Rs. 30,000/- credited in this account, it is the contention of the assessee that the same is an advance which does not fall under the provision of section 194C of the I. T. Act.
The submission in this respect is found to be devoid of any merit. The assessee has made advance of Rs. 30,000/- during the course of its contract and the same is squarely covered u/s. 194C of the I. T. Act. The assessee also failed to prove the purpose of giving advance other than the contract activity with the said person. In view of the above, the assessee's contention in this respect is rejected and the same is treated as advance against contract work. As such, the assessee required to deduct tax u/s. 194C of the I.T. Act. As the assessee failed to deduct the tax on this amount, the same is disallowable u/s. 40(a)(ia) of the I.T. Act. Accordingly, an amount of Rs. 30,000/- is disallowed and added to the total income of the assessee.
In respect of the amount of Rs. 28,656/- it is the contention of the assessee that the same is credited in two bills amounting to Rs. 18,600/- and Rs. 10,056/- respectively. As such, the provision of section 194C is not applicable. The contention raised by the assessee is carefully considered but the same is not in accordance with the provision of section 194C of the I.T. Act. As per the provision of section 194C the assessee has to deduct tax if the payment/credit exceeds Rs. 20,000/-. In the case of the assessee the assessee has paid an amount of Rs. 28,656/- on 25/07/2006 by cheque, hence, the assessee was required to deduct tax on payment basis not on credit basis. In view of the above, the submission of the assessee in this respect is rejected. As the assessee failed to deduct tax, the payment of Rs. 28,656/-
ITA No. 1513/Ahd/2011ITO vs. M/s. Bhavya Developers For AY 2007-08 4 covered u/s. 40(a)(ia) of the I. T. Act, and the same is added to the total income.
(B) Shiv Transport In the case of Shiv Transport also the assessee stated that it has credited Rs. 17,150/- and Rs. 16,450/- for two bills, hence, the provisions of section 194C is not applicable on these credits. The submission of the assessee is devoid of any merit. The assessee has paid Rs. 33,600/- by cheque on 20/03/2007. As such, the assessee was required to deduct tax on payment of Rs. 33,600/- as required u/s. 194C of the I. T. Act. In view of the above, the assessee's submission in this respect is rejected. As the assessee failed to deduct tax by making the payment of Rs. 33,600/-, the same is disallowable u/s. 40(a)(ia) of the I. T. Act and the same is added to the total income.
(C) Shree Om Carting In case of Shree Om Carting the assessee submission is that it has credited an amount of Rs. 10,000/- and another amount of Rs. 12,500/- for two bills. Hence, the provision of section 194C is not applicable. The assessee's submission is found to be devoid of any merit. As per the assessee's own statement it has made payment of Rs. 22,500/- by one cheque on 12/07/2006. As the assessee paid Rs. 22,500/- and the amount is more than prescribed by section 194C, the assessee ought to have deducted the tax and tax so deducted should have been paid within the financial year itself. In view of the above, the submission of the assessee in this respect is rejected. As the assessee failed to deduct tax, the payment of Rs. 22,500/- covered u/s. 40(a)(ia) of the I. T. Act, and the same is added to the total income.
(D) Rameshbhai Ramjibhai Patel In respect of Rs. 2,40,000/- credited in this account, it is the contention of the assessee that the same is an advance which does not fall under the provision of section 194C of the I. T. Act. The submission in this respect is found to be devoid of any merit. The assessee has made advance of Rs. 2,40,000/- during the course of its contract with Rameshbhai Ramjibhai Patel and the same is squarely covered u/s. 194C of the I. T. Act, for the reason that section 194C provide that "any person responsible for paying any sum to any resident for carrying out any work...". The assessee also failed to prove the purpose of giving advance other than the contract activity with Rameshbhai Ramjibhai Patel. In ITA No. 1513/Ahd/2011 ITO vs. M/s. Bhavya Developers For AY 2007-08 5 view of the above, the assessee's contention in this respect is rejected and the same is treated as advance against contract work. As such, the assessee required to deduct tax u/s. 194C of the I. T. Act. As the assessee failed to deduct the tax on this amount, the same is disallowable u/s. 40(a)(ia) of the I. T. Act. Accordingly, an amount of Rs. 2,40,000/- is disallowed and added to the total income of the assessee.
In respect of the amount of Rs. 36,660/- it is the contention of the assessee that the same is credited in three bills amounting to Rs. 18,740/-, Rs. 12,165/- and Rs. 15,875/-respectively. As such, the provision of section 194C is not applicable. The contention raised by the assessee is carefully considered but the same is not in accordance with the provision of section 194C of the I.T. Act. As per the provision of section 194C the assessee has to deduct tax if the payment/credit exceeds Rs. 20,000/-. In the case of the assessee the assessee has paid of Rs. 36,660/- on 06/09/2006 by cheque, hence, the assessee was required to deduct tax on payment basis not on credit basis. In view of the above, the submission of the assessee in this respect is rejected. As the assessee failed to deduct tax, the payment of Rs. 36,660/- covered u/s. 40(a)(ia) of the I. T. Act, and the same is added to the total income.
(E) Mukesh G. Patel In respect of Rs. 7,00,000/- credited in this account, it is the contention of the assessee that the same is an advance which does not fall under the provision of section 194C of the I. T. Act. The submission in this respect is found to be devoid of any merit. The assessee has made advance of Rs. 7,00,000/- during the course of its contract with Mukesh G. Patel and the same Is squarely covered u/s. 194C of the I. T. Act, for the reason that section 194C provide that "any person responsible for paying any sum to any resident for carrying out any work...". The assessee also failed to prove the purpose of giving advance other than the contract activity with Mukesh G. Patel. In view of the above, the assessee's contention in this respect is rejected and the same is treated as advance against contract work. As such, the assessee required to deduct tax u/s. 194C of the I. T. Act. As the assessee failed to deduct the tax on this amount, the same is disallowable u/s. 40(a)(ia) of the I. T. Act. Accordingly, an amount of Rs.7,00,000/- is disallowed and added to the total income of the assessee.
ITA No. 1513/Ahd/2011ITO vs. M/s. Bhavya Developers For AY 2007-08 6 In respect of the amount of Rs. 40,430/- it is the contention of the assessee that the amount is less than Rs. 50,000/-, the same is not attracted the provisions of section 194C of the I. T. Act. The submission of the assessee in this respect is found to be devoid of any merit. As per the provision of section 194C of the I. T. Act, if the payment/credit exceeds Rs. 20,000/- then provision of section 194C is applicable on such transaction. As stated above, in the case of the assessee, the assessee has credited Rs. 40,430/- which exceeds the limit prescribed by section 194C of the I. T. Act, the assessee ought to have deducted the tax while crediting the same. As the assessee failed to deduct tax, the payment of Rs. 40,430/- covered u/s. 40(a)(ia) of the I. T. Act, and the same is added to the total income.
To sum-up, for the reasons discussed above, the assessee submission in respect of the disallowance u/s. 40(a)(ia) of the I.T. Act, is rejected and amount of Rs. 11,31,786/- paid/credited by the assessee without complying the provisions of section 194C r.w.s 40(a)(ia) of the I. T. Act, is disallowed and added to the total income of the assessee.
5. On appeal, the CIT(A) deleted the addition by observing as under:-
"4. All the grounds of appeal pertain to the disallowance of Rs.11,31,786 made by the AO u/s.40(a)(ia).
Written submission of the appellant is placed on record.
After going through rival submissions the decision on each addition made in the amount of Rs.11,31,786 is mentioned in the remarks column in the table below:
Sr. Name of the Amount Remarks
No. person
1 Shri S.I. Carting Rs.30,000 This is found to be an
Contractor advance and appears in
loans and advances in
the balance sheet. The
addition is directed to
be deleted as TDS
provisions are not
applicable on loans and
advances.
ITA No. 1513/Ahd/2011
ITO vs. M/s. Bhavya Developers
For AY 2007-08
7
2 Shri S.I. Carting Rs.28,656 It is seen that this
Contractor amount consists of two
bills of Rs.18,600 and
Rs.10,056 both below
Rs.20,000 and therefore
the AO is directed to
delete the amount as
section 194C is not
applicable.
3 Shiv Transport Rs.33,600 It is seen that this
amount consists of two
bills of Rs.17,150 and
Rs. 16,450 both below
Rs.20,000 and therefore
the AO is directed to
delete the amount as
section 194C is not
applicable.
4 Shree Om Rs.22,500 It is seen that this
Carting amount consists of two
bills of Rs. 10,000 and
Rs.12,500 both below
Rs.20,000 and therefore
the AO is directed to
delete the amount as
section 194C is not
applicable.
5 Ramesh Rs.2,40,000 194 C is not applicable
Ramjibhai Patel as this person is there in
Loans and Advances
shown in the balance
sheet. The appellant has
given loan / advance to
him.
6 Ramesh Rs.36,600 It is seen that this
Ramjibhai Patel amount consists of three
bills of Rs.18,740 and
Rs.12,165 and Rs.
15,875 all below
Rs.20,000 and therefore
the AO is directed to
delete the amount as
ITA No. 1513/Ahd/2011
ITO vs. M/s. Bhavya Developers
For AY 2007-08
8
section 194C is not
applicable.
7 Mukesh G Patel Rs.7,00,000 194 C is not applicable
as this person is there in
Loans and Advances
shown in the balance
sheet. The appellant has
given loan / advance to
him.
8 Mukesh G Patel Rs.40,340 Ledger account
submitted shows bills of
less than Rs.20,000
therefore outside the
purview of section 194
C. The AO is directed to
delete the addition.
6. The Departmental Representative supported the order of the Assessing Officer.
7. We have heard the rival submissions and perused the orders of the lower authorities and material available on record. We find that the CIT(A), while deleting the addition of Rs.2,40,000/- paid to Ramesh Ramjibhai Patel and Rs.7,00,000/- paid to Mukesh G. Patel, has held that the said amounts paid were advances to the concerned persons. Under Section 40(a)(ia) of the Act, the disallowance of an amount which is otherwise allowable as deduction to the assessee, while computing the business income of the assessee, can be made for non-deduction of TDS from the payments made to the payee. Since the assessee paid these amounts as advances to the said persons and had not claimed any deduction from the income of the year under consideration, therefore, no addition could have been made of the said amounts to the income of the assessee by disallowing the same u/s 40(a)(ia) of the Act. Therefore, we do not find any infirmity in the order of the CIT(A) in deleting the addition of the said two amounts.ITA No. 1513/Ahd/2011
ITO vs. M/s. Bhavya Developers For AY 2007-08 9
8. With regard to other disallowances, the CIT(A) has held that the amount of each bill was less than Rs.20,000/- although the payments were made together which exceeded Rs.20,000/- and, therefore, deleted the disallowances. We find that the CIT(A) has brought no material on record to show that whether the payments made were with respect to different contracts or the payments were made with respect to the same contract. If the payments are made with respect to the same contract, then they will be hit by the provisions of Section 40(a)(ia) as well as 194C of the Act and if the payments are made for separate contracts, then they will not be hit by the provisions of Section 194C and Section 40(a)(ia) of the Act. Since both the parties have not produced any material before us to verify the same; therefore, in the interest of justice, we set aside the order of the CIT(A) and restore the matter back to the file of the Assessing Officer to re-adjudicate the issue afresh in light of the observations made hereinabove after allowing reasonable and proper opportunity of hearing to the assessee. Thus, this part of the ground of appeal of the Revenue is allowed for statistical purposes.
9. In the result, the appeal of the Revenue is partly allowed for statistical purposes.
Order pronounced in the Court on Friday, 09th of January, 2015 at Ahmedabad.
Sd/- Sd/-
(KUL BHARAT) ( N.S. SAINI)
JUDICIAL MEMBER ACCOUNTANT MEMBER
Ahmedabad; Dated 09/01/2015
Biju T., PS
आदे श क त ल प अ े षत/Copy of the Order forwarded to :
ITA No. 1513/Ahd/2011
ITO vs. M/s. Bhavya Developers
For AY 2007-08
10
1. अपीलाथ / The Appellant
2. यथ / The Respondent.
3. संबं धत आयकर आयु त / Concerned CIT
4. आयकर आयु त(अपील) / The CIT(A)- XV, Ahmedabad
5. वभागीय त न ध, आयकर अपील य अ धकरण, अहमदाबाद / DR, ITAT, Ahmedabad
6. गाड फाईल / Guard file.
आदे शानु सार/ BY ORDER, TRUE COPY उप/सहायक पंजीकार (Dy./Asstt.Registrar) आयकर अपील य अ धकरण, अहमदाबाद / ITAT, Ahmedabad