2013 (10) TMI 420 - AT - Income Tax

Accrual of income - determination of income out of the receipt not disclosed in the books of account - difference between the total receipts shown by the assessee in his books of accounts and by the contractee in Form No. 26AS - Held that - when the receipts were out of the books of accounts, the payment on account of expenses may also be out of the books of accounts. In such circumstances, the only way to determine the income is application of NP rate. In the instant case, the assessee in the earlier years was showing the income under section 44AB of the Act, which provides that the NP rate must be applied at 8%. Since, the contract receipts amounting to Rs. 22,29,386/- (Rs. 24,09,162/- - Rs. 1,79,776/-) were not shown by the assessee, so the NP rate was to be applied on those receipts Disallowance on account of section 40A(3) of the Income Tax Act cash payment in each day exceeded to Rs. 20,000/- Held that - Assessee made the payments towards meals charges to labourers and staff members to Shri Amar Singh Solanki and the said payments during the year under consideration amounted to Rs. 5,11,800/- - Payments made to Shri Amar Singh Solanki were on account of dining charges i.e. for meals of the labourers and the staff members - When the Assessing Officer himself admitted that those payments were made on account of meals provided to the labourers, then it can t be presumed that the payments were made only for one person in a single day and not for fooding charges of many persons. However, as the details of such employees/labourers were not provided to the Assessing Officer and in absence of the details, the disallowance was made under section 40A(3) of the Act - Remanded the issue back to the file of Assessing Officer to verify from the details, if any, submitted by the assessee as to whether the impugned amount was reimbursement of the meal charges to Shri Amar Singh Solanki or it was payments towards expenses exceeding to Rs. 20,000/-

Summary

Issues Involved:
1. Sustaining an addition of Rs. 22,29,386/- in respect of gross receipts.
2. Application of section 40A(3) resulting in an addition of Rs. 97,360/-.
3. Enhancement of income by increasing disallowance under section 40A(3) by Rs. 3,89,440/- without notice.
4. Consideration of net profit rate on gross contract receipts instead of sustaining the entire gross receipts addition.
5. Verification of whether Rs. 1,79,776/- pertains to the previous financial year.

Issue-wise Detailed Analysis:

1. Sustaining an addition of Rs. 22,29,386/- in respect of gross receipts:
The assessee engaged in labor supply for civil and technical job works filed a return declaring an income of Rs. 6,31,114/-. The Assessing Officer (AO) found discrepancies between the contract receipts shown by the assessee (Rs. 1,27,89,759/-) and those reported by the contractee (Rs. 1,51,89,921/-). The AO added Rs. 24,09,162/- to the income, which the assessee claimed were book adjustments by the contractee. The CIT(A) confirmed the addition of Rs. 22,29,386/- from M/s. Binani Cement Works Ltd. and directed verification of Rs. 1,79,776/- claimed to pertain to the previous year. The Tribunal concluded that the NP rate of 8% should be applied to the unaccounted receipts of Rs. 22,29,386/- instead of adding the entire amount, as the expenses related to these receipts might not have been shown in the books.

2. Application of section 40A(3) resulting in an addition of Rs. 97,360/-:
The AO made an addition of Rs. 97,360/- under section 40A(3) for cash payments exceeding Rs. 20,000/- towards meal charges for laborers and staff. The CIT(A) enhanced this disallowance to Rs. 4,86,800/- without issuing a show-cause notice, based on the amended provisions of section 40A(3). The Tribunal noted that the payments were for meals provided to laborers and staff and remanded the issue back to the AO to verify whether the payments were reimbursements or exceeded Rs. 20,000/- per day.

3. Enhancement of income by increasing disallowance under section 40A(3) by Rs. 3,89,440/- without notice:
The CIT(A) enhanced the disallowance under section 40A(3) by Rs. 3,89,440/- without issuing a notice as required by section 251(2). The Tribunal found this enhancement improper and remanded the issue to the AO for re-adjudication after verifying the details.

4. Consideration of net profit rate on gross contract receipts instead of sustaining the entire gross receipts addition:
The assessee argued that only the net profit rate should be applied to the gross receipts of Rs. 22,29,386/- instead of adding the entire amount. The Tribunal agreed, directing the AO to apply an 8% NP rate on the unaccounted receipts, considering the assessee's past practice of declaring income under section 44AB.

5. Verification of whether Rs. 1,79,776/- pertains to the previous financial year:
The CIT(A) directed the AO to verify if Rs. 1,79,776/- related to the previous financial year, as claimed by the assessee. The Tribunal upheld this direction, noting that if the amount was accounted for in the earlier year, it should not be added in the current year.

Conclusion:
The appeal was partly allowed for statistical purposes. The Tribunal directed the AO to apply an 8% NP rate on the unaccounted receipts of Rs. 22,29,386/- and to verify the details regarding the disallowance under section 40A(3) and the amount of Rs. 1,79,776/- claimed to pertain to the previous financial year. The enhancement of disallowance by the CIT(A) without notice was found improper, and the issue was remanded to the AO for re-adjudication.