2016 (4) TMI 1368 - AT - Income Tax

Disallowance being 20% of the payment made to sub-contractors - Making excess payment to sub-contractors - HELD THAT - The reason for disallowing the payments are also identical to that in the preceding year being that no sub contract work was found to have been done by these three persons and infact they were found to be employees of the assessee firm. AR has not been able to point out before us as to how the facts of the case differ from the preceding year. Therefore, since on identical set of facts , the Hon ble ITAT had in the preceding year held that no sub contract work was carried out by these three persons, but at the same time since original contract was executed by the assessee, the sub contract work was carried out by other parties and in view of the same it was fair and reasonable to disallow 20% on amount of payment made on account of sub contract work, the same ruling applies in the present case also. No sub contract work was executed by the three sub contractors and infact excess payment was made to them. Further we concur with the CIT(A) in holding that though sub contract work has not been carried out by the three sub contractors, it has been carried out by some other parties and in the view thereof it is fair and reasonable to disallow 20% of the amount paid on account of subcontract work. Addition on account of sale of scrap - HELD THAT - The facts emerging in the present case are that undeniably during the carrying on of the business of construction some scrap of iron and aluminium pieces is generated as also empty bags. While the assessee s contention is that this scrap is reused in the construction business and the empty bags are used by the labour for resting and other purposes and no scrap is therefore sold, the case of the revenue is that the explanation of the assessee is not plausible and some scrap must have been sold by the assessee. We find no infirmity in the order of the CIT(A) in this respect and agree with his findings that it is impossible to believe that no scrap was sold during the year and that the entire scrap is reused in the business of the assessee. We therefore uphold the order of the CIT(A) sustaining the addition of ₹ 50,000/- made on account of sale of scrap. This ground of appeal of the assessee is therefore dismissed.

Summary

Issues Involved:
1. Rejection of books of accounts or invoking of provision of section 145.
2. Presumption that sub-contract work was not carried out by specific individuals and possibility of excess payment.
3. Incorrect showing of payments to subcontractors.
4. Discrepancy between amounts in audit report, TDS certificates, and ledger accounts.
5. Estimation and disallowance of 20% of payments to subcontractors.
6. Presumption and addition of income from the sale of scrap.

Detailed Analysis:

1. Rejection of Books of Accounts or Invoking of Section 145:
The assessee contended that there was no rejection of books of accounts nor invoking of section 145. However, the tribunal found that the facts of the case were identical to the preceding year (Assessment Year 2008-09) where similar disallowance was upheld by the ITAT. Therefore, the tribunal upheld the CIT(A)'s decision to disallow 20% of the payments made to subcontractors, as the sub-contract work was not carried out by the named individuals but by other parties.

2. Presumption that Sub-Contract Work Was Not Carried Out by Specific Individuals and Possibility of Excess Payment:
The AO found that Sh. Sanjay Agarwal, Sh. Subodh Agarwal, and Sh. R. R. Agarwal did not have the capacity to perform sub-contract work and were actually employees of the assessee firm. The CIT(A) upheld this finding, noting that the facts were identical to the preceding year where the ITAT had confirmed that no sub-contract work was carried out by these individuals. The tribunal agreed with the CIT(A) that excess payment was made to these individuals and upheld the disallowance of 20% of the payments.

3. Incorrect Showing of Payments to Subcontractors:
The CIT(A) found discrepancies in the amounts shown in the ledger accounts and the tax audit report. The assessee showed payments of ?81,32,697/- in the ledger accounts, while the tax audit report showed ?90,12,424/-. The tribunal found no infirmity in the CIT(A)'s order directing the AO to determine the correct amount paid to subcontractors and disallow 20% of the same.

4. Discrepancy Between Amounts in Audit Report, TDS Certificates, and Ledger Accounts:
The tribunal upheld the CIT(A)'s findings regarding the discrepancy between the amounts in the audit report, TDS certificates, and ledger accounts. The CIT(A) directed the AO to determine the correct amount paid and disallow 20% of the same. The tribunal agreed with this approach, noting that the assessee failed to demonstrate that there was no difference in the figures.

5. Estimation and Disallowance of 20% of Payments to Subcontractors:
The assessee argued that the GP rate had increased from 12.59% in the preceding year to 14.78% in the impugned year, and therefore, the disallowance should not be sustained. However, the CIT(A) noted that the Net Profit rate had decreased and that the GP rate was still lower than in Assessment Year 2007-08. The tribunal upheld the disallowance of 20% of the payments made to subcontractors, agreeing with the CIT(A)'s reasoning.

6. Presumption and Addition of Income from the Sale of Scrap:
The AO estimated the sale of scrap and empty bags at ?1,00,000/- and made an addition of the same. The CIT(A) upheld the addition to the extent of ?50,000/-, noting that the generation and sale of scrap could not be ruled out. The tribunal agreed with the CIT(A)'s findings, stating that it was impossible to believe that no scrap was sold during the year. The tribunal upheld the addition of ?50,000/- made on account of the sale of scrap.

Conclusion:
The tribunal dismissed the appeal of the assessee, upholding the CIT(A)'s orders on all grounds. The disallowance of 20% of payments made to subcontractors and the addition of ?50,000/- on account of the sale of scrap were sustained. The tribunal found no infirmity in the CIT(A)'s orders and agreed that the facts of the case were identical to the preceding year, warranting the same treatment.