2020 (1) TMI 1304 - AT - Income Tax

Disallowing sub-contract expenditure claimed in the name of separate entity - bogus expenditure - HELD THAT - The assessee has given explanation, which has not been found to be untrue or false but has been rejected only on the basis of preponderances of probabilities. AO has not given any finding that M/s. Makeway Consultancy Pvt. Ltd. has not raised bogus bills in the name of the assessee company without doing any work for them. By accepting the contract receipt disclosed by the sub-contractor and by giving credit of tax deducted by the assessee company, the AO has accepted the fact that the sub-contractor do exists and executed the work, for which the payments though could not be made in this assessment year were paid in the subsequent assessment years. Assessee company cannot be blamed and its genuine expenses cannot be disallowed on the ground that why the sub-contractor has not filed return of income voluntarily. Before us also no specific error in the order of the CIT(A) could be pointed out by ld. D.R. No good reason to interfere with the order of the CIT(A), which is hereby confirmed and ground of appeal of the revenue is rejected.

Issues Involved:
1. Justification of CIT(A) in deleting the addition of ?4,12,30,153/- made by the Assessing Officer (AO) disallowing the sub-contract expenditure claimed by the assessee.
2. Examination of the genuineness of the sub-contract expenditure claimed by the assessee.
3. Consideration of additional evidence submitted by the assessee during the appellate proceedings.

Issue-wise Detailed Analysis:

1. Justification of CIT(A) in Deleting the Addition:
The primary issue revolves around whether the CIT(A) was justified in deleting the addition of ?4,12,30,153/- made by the AO. The AO had disallowed the sub-contract expenditure claimed by the assessee in the name of M/s. Makeway Consultancy Pvt. Ltd., terming it as bogus. The CIT(A), after considering the remand report and additional evidence, concluded that the AO's decision was based on suspicion rather than concrete evidence.

2. Examination of the Genuineness of the Sub-Contract Expenditure:
The AO had observed that the entire amount debited in the name of M/s. Makeway Consultancy Pvt. Ltd. was shown as payable and not a single penny was paid during the relevant previous year. Additionally, M/s. Makeway Consultancy Pvt. Ltd. had not filed any return of income for the AY 2011-12 voluntarily and showed the entire contract receipts as receivable. The AO issued a show-cause notice questioning the genuineness of the expenditure. The assessee explained that payments were delayed due to non-receipt of payments from principal clients but were made in subsequent financial years. Despite this explanation, the AO treated the expenditure as bogus.

During the appellate proceedings, the assessee provided substantial documentation, including invoices, work orders, and certificates of material supply, to substantiate the genuineness of the transactions with M/s. Makeway Consultancy Pvt. Ltd. The CIT(A) called for a remand report, wherein the AO reiterated his doubts but failed to provide concrete evidence against the genuineness of the sub-contract work.

3. Consideration of Additional Evidence Submitted by the Assessee:
The CIT(A) considered the additional evidence submitted by the assessee, including invoices, work orders, and material supply certificates, which were not initially produced during the assessment proceedings. The CIT(A) noted that these documents clearly indicated that M/s. Makeway Consultancy Pvt. Ltd. had indeed performed the sub-contract work. The CIT(A) emphasized that suspicion cannot replace evidence and that the AO had not provided any proof that the work was not executed.

The CIT(A) also noted that M/s. Makeway Consultancy Pvt. Ltd. had filed its return of income in response to a notice under section 148 and that the AO had completed the assessment for that company, accepting the receipts disclosed, including the amount receivable from the assessee. This further supported the genuineness of the transactions.

Conclusion:
After thorough examination of the assessment order, remand report, and the additional evidence provided by the assessee, the CIT(A) concluded that the AO's addition was based on suspicion rather than substantive evidence. The CIT(A) found that the sub-contract work was genuinely performed by M/s. Makeway Consultancy Pvt. Ltd. and that the payments were delayed due to external factors but were made in subsequent years. The Tribunal upheld the CIT(A)'s decision, confirming that the addition of ?4,12,30,153/- was unjustified and dismissing the revenue's appeal.

Final Order:
The appeal of the revenue is dismissed, and the order of the CIT(A) is upheld.

Order pronounced on 16/01/2020.

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