2012 (9) TMI 689 - AT - Income Tax

Disallowance of construction expense Assessee is in business of civil construction AO disallow expense on ground that - Assessee has shown work in progress on estimate basis, no proper bills, vouchers Addition was made on the basis of specific inquiries establishing non-existent sub-contractors especially when the assessee could not produce such sub-contractors to prove their identity and genuineness Labour contractors shown as creditor were not found at given address - CIT(A) restrict disallowance of 25% of disallowed amount in its order - Held that - As books of accounts, cash books, ledger, vouchers for such expenses were produced and the same were test checked by AO. If the AO was not satisfied with such record, nothing prevented her either to ask the assessee to furnish more information or to bring on record any evidence controverting the claim of the assessee. Even otherwise, the inquiries were conducted by the A.O. nearly about after 2 years from the end of the relevant FY, therefore, the labour contractors cannot be expected to be available at the given address after lapse of such period because they keep on shifting as per the availability of the work. Upheld the order of CIT(A). Appeal decides in favour of assessee.

Summary

Issues:
1. Disallowance of construction expenses by the Assessing Officer.
2. Appeal by the Revenue against the order restricting the addition on account of construction expenses.
3. Cross objection by the assessee regarding the disallowance.

Issue 1: Disallowance of Construction Expenses by the Assessing Officer

The assessee, engaged in construction activities for a Government department, declared income and filed relevant documents. The Assessing Officer disallowed Rs. 85,33,538 out of construction expenses of Rs. 12,04,55,333 due to lack of proper bills, vouchers, and non-verifiable creditors. The AO rejected book results under section 145(3) of the Act, leading to the disallowance.

Issue 2: Appeal by the Revenue

The Revenue appealed against the order restricting the addition of construction expenses. The Revenue argued that specific inquiries revealed non-existent sub-contractors, as the assessee failed to produce them for verification. The Senior DR defended the assessment order, emphasizing the differences in facts compared to a previous year's assessment. The Counsel for the assessee supported the impugned order, citing a well-reasoned decision by the CIT(A) and Tribunal in favor of the assessee for the assessment year 2006-07.

Issue 3: Cross Objection by the Assessee

The assessee's cross objection contended that the 25% disallowance was excessive. However, since the Tribunal upheld the CIT(A)'s decision, the cross objection was dismissed as it remained for academic interest only.

Detailed Analysis:

The CIT(A) considered the submissions and observations, noting discrepancies in the disallowance of construction expenses compared to earlier years. The AO's outside inquiries and letters under section 133(6) raised concerns about non-verifiable creditors, leading to the disallowance. The appellant provided explanations regarding the nature of construction work, the availability of local labor, and challenges in obtaining PAN from illiterate laborers.

The Tribunal analyzed the comparative net profit, the nature of payments, and the lack of evidence against the assessee's claims. It acknowledged the difficulties in verifying labor contractors after a significant period and upheld the CIT(A)'s decision to restrict the disallowance to 25% of the amount. The Tribunal found no infirmity in the CIT(A)'s stand, especially in the absence of contrary evidence from the Assessing Officer.

In conclusion, the Tribunal dismissed the appeal of the Revenue and upheld the decision to restrict the disallowance of construction expenses. The cross objection by the assessee was also dismissed due to the Tribunal's affirmation of the CIT(A)'s decision.

This detailed analysis covers the issues of disallowance of construction expenses, the appeal by the Revenue, and the cross objection by the assessee, providing a comprehensive overview of the judgment delivered by the Appellate Tribunal ITAT Indore.