2012 (7) TMI 719 - AT - Income Tax

Addition being 20% of contract payments u/s 40A(3)- On the basis of material found during the survey assessee surrendered undisclosed income of Rs. 3 crores and the impounded documents revealed cash payments exceeding Rs. 20,000/- each - Held that - It can very well be seen that the payments made in single transaction to a particular person has been divided into multiple entries while recording the same in regular books of accounts and as the registers were found during the course of survey, these are primary evidence and are more reliable. The submissions made subsequently are only afterthoughts to give them the genuine colour - AO has considered all the documents seized during the course of survey and also the explanation of the assessee company on various entries submitted during the course of assessment - no evidence has been placed in support of this assertion, as affidavits of six persons were obviously filed at the instance of the assessee to serve his interest and such self-serving affidavits hardly achieve any purpose, especially when no cogent material has been placed before the lower authorities and even before us in support of contents of the affidavits - There is nothing to suggest that the relevant material has not been considered by the lower authorities - against assessee.

Summary

Issues Involved:
1. Confirmation of addition under Section 40A(3) for cash payments exceeding Rs. 20,000.
2. Consideration of seized material by the Assessing Officer (AO).
3. Legality and factual correctness of the CIT(A)'s order.

Issue-Wise Detailed Analysis:

1. Confirmation of Addition under Section 40A(3):
The primary issue revolves around the confirmation of an addition of Rs. 57,39,886/- under Section 40A(3) of the Income Tax Act, 1961, which disallows 20% of any expenditure exceeding Rs. 20,000 made otherwise than by an account payee cheque or bank draft. The AO noticed that the assessee had made cash payments exceeding Rs. 20,000/- in violation of this provision. The AO provided examples where payments were split into smaller amounts to avoid the applicability of Section 40A(3). For instance, a payment of Rs. 1,57,000/- was recorded in smaller amounts over several days. The AO concluded that such bifurcation was a deliberate attempt to bypass the provision. The CIT(A) upheld this view, stating that the payments were made in single transactions and debited from the cash balance, thus violating Section 40A(3). The Tribunal also agreed with the lower authorities, noting that the affidavits provided by the assessee were self-serving and not supported by any material evidence.

2. Consideration of Seized Material by the AO:
The assessee contended that the AO did not consider all the seized materials while making the addition, specifically referring to Annexure A-1 seized from a particular location. However, the CIT(A) found that the AO had indeed considered all the documents seized during the survey and the explanations provided by the assessee. The Tribunal also found no merit in the assessee's claim, noting that the relevant material had been duly considered by the lower authorities. The Tribunal emphasized that the affidavits and documents provided by the assessee were not sufficient to counter the primary evidence found during the survey.

3. Legality and Factual Correctness of the CIT(A)'s Order:
The assessee argued that the CIT(A)'s order was against the law and facts of the case. However, the CIT(A) and the Tribunal both found that the assessee's submissions were not supported by evidence. The CIT(A) highlighted that the cash payments were made in single transactions and debited from the cash balance, thus confirming the violation of Section 40A(3). The Tribunal also noted that the assessee failed to provide any material evidence to refute the findings of the lower authorities. Consequently, the Tribunal upheld the CIT(A)'s order and dismissed the appeal.

Conclusion:
The Tribunal dismissed the appeal, confirming the addition under Section 40A(3) for cash payments exceeding Rs. 20,000/-, and upheld the findings of the CIT(A) and AO. The affidavits and documents provided by the assessee were deemed insufficient to counter the primary evidence found during the survey. The Tribunal found no merit in the assessee's claims and ruled that the lower authorities had duly considered all relevant materials.