2012 (10) TMI 888 - AT - Income Tax

Rejection of books of accounts - Disallowance u/s 40(a)(ia) for non deduction of TDS on account of material purchases made from M/s Radhey Shyam Gupta India (P) Ltd. (RSGIPL) - Held that - The work has been by converting into self execution work by an act of splitting of work into a transaction of purchase and sale. The provisions of law cannot be interpreted in such a manner to convert a possible task into impossible task by such interpretation. Once the books are held to be camouflaged and not representing the assessee s proper income, in that case the proper course is to reject the books of a/c and estimate the income. The action of the lower authorities has resulted into an impossible situation i.e. holding the entire road contract receipts as the income of the assessee. It will be arbitrary and unjust to hold assessee s entire receipts as income. Since the books of accounts are not reliable, they deserve to be rejected and in that case a reasonable estimate of income has to be made. In our view, ends of justice will be met if a fair and reasonable estimate is made in place of technicalities of applicability of sec. 40(a)(ia); the debate about words paid and payable and the debate about revenue having not proceeded against the assessee u/s 201(1). To put rest to these technical debates, it will be in the interest of justice to make a reasonable estimate of assessee s income, when its work execution has not been questioned. - Income estimated at 6% i.e. 8% minus 2% for subletting. - Decided partly in favor of assessee.

Issues Involved:
1. Disallowance under Section 40(a)(ia) of the Income Tax Act.
2. Non-initiation of proceedings under Section 201(1) of the Act.
3. Classification of material purchases as direct costs under Section 28(i).
4. Interpretation of "payable" vs. "paid" under Section 40(a)(ia).
5. Genuine purchases under Section 37 of the Act.

Issue-wise Detailed Analysis:

1. Disallowance under Section 40(a)(ia) of the Income Tax Act:
The assessee challenged the disallowance of Rs. 1,55,47,512/- under Section 40(a)(ia) for payments made to M/s Radhey Shyam Gupta India (P) Ltd. (RSGIPL). The Assessing Officer (AO) and CIT(A) concluded that the assessee had subcontracted the entire work to RSGIPL without deducting TDS as required under Section 194C. The AO held that the amount was not merely for material purchases but for subcontracting the entire work, thus necessitating TDS deduction.

2. Non-initiation of proceedings under Section 201(1) of the Act:
The assessee argued that no proceedings under Section 201(1) were initiated, which would declare the assessee in default for not deducting TDS. The Tribunal admitted this additional ground, emphasizing that the relationship between Section 40(a)(ia) and Section 201(1) is a legal question. The Tribunal noted that the time for initiating action under Section 201(1) had expired, and thus, without such proceedings, Section 40(a)(ia) could not be applied.

3. Classification of material purchases as direct costs under Section 28(i):
The assessee contended that the amount of Rs. 1,55,47,512/- was for the purchase of materials (Bituminous Mix) and should be considered as direct costs under Section 28(i), which are beyond the purview of Section 40(a)(ia). The Tribunal observed that the invoices showed VAT charges, indicating sales transactions rather than subcontracting.

4. Interpretation of "payable" vs. "paid" under Section 40(a)(ia):
The assessee argued that Section 40(a)(ia) applies only to amounts "payable" and not "paid." The Tribunal referenced the ITAT Hyderabad Bench judgment in K. Srinivas Naidu v. Asstt. CIT and ITAT Delhi Bench's order in SRS Real Estate Ltd. v. Addl. CIT, which supported the interpretation that Section 40(a)(ia) applies to amounts payable and not already paid.

5. Genuine purchases under Section 37 of the Act:
The assessee claimed that the purchases were genuine and supported by proper invoices, including VAT charges. The Tribunal found that the AO and CIT(A) had not adequately addressed the genuineness of the transactions and instead focused on the assumption of subcontracting.

Judgment:
The Tribunal concluded that the AO and CIT(A) had erred in treating the entire contract receipt as the income of the assessee. They noted that the books of accounts were unreliable and suggested rejecting them to estimate the income reasonably. The Tribunal applied a net profit rate of 6% to the turnover, resulting in an estimated income of Rs. 9,21,000/-, instead of the loss declared by the assessee. The appeal was partly allowed, providing a balanced resolution by estimating the income based on a reasonable profit rate rather than strict technical disallowance.

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