2015 (12) TMI 29 - AT - Income Tax

Disallowance under section 40(a)(ia) - assessee has not filed any bills and vouchers and hence, not allowable under section 37 - assessee s objection was only against the disallowance of the expenditure both under section 37(1) as well as under section 40(a)(ia) - disallowance of depreciation - Held that - We find that in the case before us, the A.O. has not estimated the income @ 8% but has justified the disallowance by stating that the disallowance would result in the assessed income being 8% of the gross profit. Both the A.O. as well as the Ld. CIT(A) have not given any reasoning as to why the claim of depreciation has not been allowed. As rightly pointed out by the Ld. Counsel for the assessee, the provisions of section 40(a)(ia) are not applicable to the payments already made. Therefore, the disallowance under section 40(a)(ia) is not sustainable. However, in the absence of bills/vouchers produced by the assessee, we do not find any reason to interfere with the order of the Ld. CIT(A) that the disallowance under section 37(1) is justified. However, with regard to claim of depreciation, we deem it fit and proper to remit the issue back to the file of A.O. for consideration of the same in the light of judgment of the Hon ble A.P. High Court in assessee s own case for A.Y. 1998-99. - Decided partly in favour of assessee for statistical purposes.

Summary

Issues:
1. Disallowance of expenditure under section 37 and 40(a)(ia) of the Income Tax Act.
2. Claim of depreciation not allowed by Assessing Officer and Commissioner of Income Tax (Appeals).

Analysis:
1. The appeal filed by the assessee was against the order of the Ld. CIT(A)-I, Hyderabad for the A.Y. 2007-08. The assessee contested the disallowance of expenses under sections 37 and 40(a)(ia) of the Act. The Assessing Officer (A.O.) proposed disallowing expenses totaling to a certain amount due to non-deduction of TDS. The A.O. emphasized the need for bills and vouchers to substantiate the expenses claimed. The A.O. also raised concerns about the low gross profit percentage returned by the assessee. The A.O. disallowed the expenses under section 37 and 40(a)(ia) of the Act, leading to an increase in the assessed income. The assessee, citing previous judgments and the absence of TDS deduction, challenged these disallowances in the appeal.

2. The A.O. and the Ld. CIT(A) did not allow the claim of depreciation to the assessee. The assessee argued that the Hon'ble High Court's decision in their previous assessment years supported the allowance of deductions like depreciation when profit is determined on a percentage basis. The A.O. justified the disallowance without providing reasoning for not allowing depreciation. The Ld. CIT(A) also did not address the claim of depreciation. The Tribunal noted that the A.O. did not estimate income at 8% but justified the disallowance based on resulting assessed income. The Tribunal found that the provisions of section 40(a)(ia) did not apply to payments already made, rendering the disallowance unsustainable. However, due to the absence of bills/vouchers, the Tribunal upheld the disallowance under section 37(1) as justified. The Tribunal remitted the issue of depreciation back to the A.O. for reconsideration in light of the Hon'ble A.P. High Court's judgment in the assessee's case for A.Y. 1998-99.

In conclusion, the appeal of the assessee was partly allowed for statistical purposes, with the issue of depreciation remitted back to the Assessing Officer for further consideration.