2016 (5) TMI 1084 - AT - Income Tax

Disallowance being 20% of the payment made to sub-contractors - Held that - We concur with the findings of the Ld. CIT(A) that no sub contract work was executed by the three sub contractors and infact excess payment was made to them. Further we concur with the Ld. 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. - Decided against assessee 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 Ld. 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 Ld. CIT(A) sustaining the addition made on account of sale of scrap - Decided against assessee

Summary

Issues Involved:
1. Rejection of books of accounts or invoking of provision of section 145.
2. Presumption that sub-contract work was not actually carried out by certain individuals and possibility of making excess payment to them.
3. Correctness of payments to subcontractors.
4. Difference between amounts in the audit report, TDS certificates, and ledger accounts.
5. Disallowance of 20% of payments made to subcontractors despite an increase in GP rate.
6. Addition on account of the sale of scrap.

Detailed Analysis:

1. Rejection of Books of Accounts or Invoking of Provision of Section 145:
The assessee contested the application of the Net Profit (N.P.) rate to estimate income without rejecting its books of accounts or invoking the provision of section 145. The Tribunal found no infirmity in the CIT(A)'s order, noting that the facts of the current case were identical to the preceding year where similar disallowances were upheld by the ITAT. Therefore, the Tribunal upheld the CIT(A)'s decision to disallow 20% of the payments made to subcontractors.

2. Presumption of Non-Execution of Sub-Contract Work:
The CIT(A) presumed that no sub-contract work was carried out by the named subcontractors (Sh. Sanjay Agarwal, Sh. Subodh Agarwal, and Sh. R. R. Agarwal) and that excess payments were made to them. The Tribunal agreed with the CIT(A), noting that the facts were identical to the preceding year where the ITAT had upheld a similar disallowance. The Tribunal found that the subcontractors were actually employees of the assessee firm and thus, the payments made to them were not genuine sub-contract payments but rather inflated expenses.

3. Correctness of Payments to Subcontractors:
The CIT(A) found discrepancies in the payments made to subcontractors as shown in the ledger accounts and the tax audit report. The Tribunal upheld the CIT(A)'s decision, directing the AO to determine the correct amount paid to the subcontractors and disallow 20% of the same. The Tribunal noted that the assessee failed to demonstrate how there was no difference in the figures shown in the tax audit report and the ledger accounts.

4. Difference Between Amounts in Audit Report, TDS Certificates, and Ledger Accounts:
The CIT(A) identified a difference between the amounts shown in the audit report and the ledger accounts of the subcontractors. The Tribunal upheld the CIT(A)'s decision to direct the AO to determine the correct amount paid and disallow 20% of the same. The Tribunal found that the assessee could not justify the discrepancies in the figures.

5. Disallowance of 20% of Payments Made to Subcontractors:
The assessee argued that the disallowance should not be sustained as the GP rate had increased from 12.59% to 14.78%. However, the Tribunal upheld the CIT(A)'s decision to disallow 20% of the payments, noting that despite the increase in the GP rate, the Net Profit rate had declined and was still lower than in the assessment year 2007-08. Therefore, the Tribunal found it reasonable to sustain the disallowance.

6. Addition on Account of Sale of Scrap:
The AO estimated the sale of scrap and empty bags to be ?1,00,000 and made an addition of the same. The CIT(A) sustained the addition to the extent of ?50,000, stating that the generation and sale of scrap could not be ruled out. The Tribunal upheld the CIT(A)'s decision, agreeing that it was implausible that no scrap was sold during the year. The Tribunal found no infirmity in the CIT(A)'s order and dismissed the assessee's ground of appeal.

Conclusion:
The Tribunal dismissed the appeal of the assessee, upholding the CIT(A)'s decisions on all grounds. The Tribunal found that the facts of the case were identical to the preceding year where similar disallowances were upheld, and the assessee failed to provide sufficient evidence to contest the findings of the CIT(A). The Tribunal sustained the disallowance of 20% of the payments made to subcontractors and the addition of ?50,000 on account of the sale of scrap.