2003 (1) TMI 287 - AT - Income Tax

Summary

Issues Involved:

1. Deletion of additions made on account of ad hoc payments received for extra excavation work.
2. Apportionment of ad hoc payment.
3. Treatment of disputed amount recoverable in excess of the amount fixed as income.

Detailed Analysis:

1. Deletion of Additions on Account of Ad Hoc Payments:

The first common ground in both appeals concerns the deletion of additions of Rs. 50,73,698 and Rs. 8,47,118 made on account of ad hoc payments received from Sardar Sarovar Nigam for extra efforts of excavation work. The assessee, a contracting firm specializing in earthwork, was working on the construction of the Narmada Canal. During the excavation, the firm encountered more rock than initially anticipated, leading to increased costs. Consequently, the Nigam made an ad hoc/provisional payment of Rs. 3,70,54,104 to the assessee.

The Assessing Officer (AO) computed the average rate per cubic meter of rock excavated and concluded that an additional amount of Rs. 50,73,698 should be credited to the Profit & Loss account. The assessee resisted this addition, arguing that the payment was provisional and could be recovered by the Nigam. The CIT(A) observed that the AO's method of working out the average rate was incorrect and directed the deletion of the addition with the stipulation that if the ad hoc payment ceased to be held as a deposit, it would become taxable in the year it ceased to be a deposit.

2. Apportionment of Ad Hoc Payment:

The second issue relates to the apportionment of the ad hoc payment. The CIT(A) found that the AO did not consider the higher future expenses while determining the average rate based on the ad hoc payment. The CIT(A) held that there was no firm commitment from the Nigam, and the payment could only be treated as a deposit in the hands of the assessee. The CIT(A) directed the deletion of the addition with the condition that if the amount ceased to be a deposit, it would become taxable as income in that year.

3. Treatment of Disputed Amount Recoverable in Excess of the Amount Fixed as Income:

The third issue involves the treatment of the disputed amount recoverable in excess of the amount fixed as income. The Departmental Representative argued that the right to receive payment existed, and the CIT(A) was influenced by the Nigam's clarification that the payment was provisional and could be recovered. The assessee contended that the ad hoc payment was provisional and liable to be recovered, and the AO had not allowed expenses incurred on extra work.

The Tribunal considered the rival contentions and the material on record. It distinguished the present case from the Supreme Court cases cited by the Departmental Representative, noting that the facts were different. The Tribunal found that the payment was provisional and could not be considered income for the year under consideration. The Tribunal upheld the CIT(A)'s order deleting the addition, noting that the payment was merely a receipt without the attributes of income and that the assessee had no legal claim over it.

Conclusion:

The Tribunal dismissed both appeals by the Department, upholding the CIT(A)'s order deleting the additions made on account of ad hoc payments received for extra excavation work. The Tribunal found that the payments were provisional and could not be treated as income for the year under consideration, and the apportionment method used by the AO was incorrect. The Tribunal also noted that the disputed amount recoverable in excess of the amount fixed could not be treated as income, as the assessee had no absolute right to receive the payment.