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2016 (12) TMI 1242 - AT - Income TaxRevision u/s 263 - non deduction of tds u/s 194C - addition of contract payments under section 40(a)(ia) of the Act on which the assessee did not deduct any tax at source - Held that - AO has considered the issue of non deduction of Tax at source on the payment to sub-contractors and other defects in the books of account such as non maintenance of proper record bills and vouchers and ultimately assessing the income at the rate of 8% which in our opinion takes care of all other issues like agricultural income and loan from wife. The case of the assessee also covered by the decision in the case of Malabar Industries Co.Ltd (2000 (2) TMI 10 - SUPREME Court) in which it has been held that when the AO has taken a plausible view which is in favour of the assessee and the CIT cannot take recourse of the revisionary powers u/s 263 to disturb the already completed assessment. From the facts as discussed above, we find that the case of the assessee squarely covered by the ratio laid down in the aforesaid decision. Therefore, we respectfully following the said decision set aside the order of Commissioner passed u/s 263 of the Act. - Decided in favour of assessee
Issues Involved:
1. Delay in filing the appeal. 2. Invocation of provisions of section 263 of the Income Tax Act. 3. Non-deduction of tax at source on contract payments under section 40(a)(ia). 4. Unsecured loan and agricultural income discrepancies. Detailed Analysis: Delay in Filing the Appeal: The assessee's appeal faced a delay of 581 days. The delay was attributed to the assessee being illiterate and receiving improper guidance from the previous Chartered Accountant. The assessee's new Chartered Accountant also advised against filing the appeal. The Tribunal, after considering affidavits and the reasons provided, condoned the delay, finding no malafide intention and determining that no prejudice would be caused to the revenue. Invocation of Provisions of Section 263: The Commissioner of Income Tax (CIT) invoked section 263, identifying that the assessment order was erroneous and prejudicial to the revenue. The CIT highlighted three main issues: 1. The assessee subcontracted work worth ?40.40 lakhs without deducting tax at source, contrary to section 194C. 2. An unsecured loan of ?45,000 from Mr. S.A. Gaikwad lacked confirmation and inquiry into the creditor's financial capacity. 3. Agricultural income of ?35,650 was shown without owning any agricultural land. The CIT set aside the assessment order and directed the Assessing Officer (AO) to re-examine these issues. Non-Deduction of Tax at Source: The assessee admitted to not deducting tax on payments to subcontractors due to unawareness of TDS provisions. The AO had initially disallowed only ?16,177 under section 40(a)(ia). The Tribunal noted that the AO had adopted a net profit rate of 8% on gross receipts, which was a plausible view and covered all expenses, including those related to TDS non-compliance. The Tribunal cited several judgments supporting the view that once a net profit rate is applied, no further disallowances are necessary. Unsecured Loan and Agricultural Income Discrepancies: The assessee clarified that the loan was from his wife, not Mr. S.A. Gaikwad, and was arranged by pledging her jewelry. The agricultural income was from ancestral land inherited after the father's death, hence not appearing in the balance sheet. The Tribunal found that the AO had considered these issues during the original assessment and had applied a net profit rate, which accounted for all discrepancies. Conclusion: The Tribunal concluded that the AO had taken a plausible view by applying an 8% net profit rate, which addressed all issues raised by the CIT. The Tribunal set aside the CIT's order under section 263, restoring the original assessment. Consequently, the appeal against the quantum assessment became infructuous and was dismissed. Order: The appeal under section 263 was allowed, and the appeal bearing no.22/Mum/2010 was dismissed as infructuous. The order was pronounced on October 27, 2016.
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