2012 (4) TMI 340 - AT - Income Tax

Disallowance made u/s. 40(a)(ia) hire charges - TDS u/s 194I or 194C - held that - before taking a decision on the applicability of TDS u/s. 194C of the Act on a contract, it is required to be examined whether the contract is a contract for work or a contract for sale . TDS shall be applicable only where it is a contract for work as per the principles laid down in para 7(vi)(a) of Circular No. 681, dated 8-3-1994 and Circular No. 13/2006, dated 13-12-2006. - as per Circular No. 558, dated 28th March 1990, the applicability of the provisions of section 194C will have to be examined with reference to the terms and conditions of each contract. - transactions of the assessee will fall under the provisions of Sec. 194-I of the Act, which is effective from 13/7/2006. Since the assessment year involved in this appeal of the assessee is 2006-07, which is prior to the amendment made by the Taxation Laws (Amendment) Act, 2006 w.e.f. 13/7/2006. - Decided in favor of assessee. Unexplained expenditure - Addition of Rs. 33,13,143/- u/s. 69C - There is no dispute to the fact that the payments in question related to the liabilities brought forward from earlier year, i.e. payments were made against the opening balance of liabilities of the assessment year under consideration. In such circumstances, by no stretch of imagination, provisions of sec. 69C of the Act do apply to such transactions. It is also not disputed that the payments have not been entered in the P/L Account and claimed as expenditure. In that view of the matter, we find no infirmity in the order of ld. C.I.T.(A) in deleting the addition of Rs. 33,13,143/- made u/s. 69C of the Act, which is upheld Regarding estimation of gross profit - The ld. C.I.T.(A) has elaborately discussed the issue and came to a reasonable conclusion that net profit @ 3% instead of 4.5% estimated by the ld. A.O. would meet the ends of justice under the facts and circumstances of the case. After careful perusal of the said observation/finding, we are inclined to uphold the direction given by the ld. C.I.T.(A) to the ld. A.O. to compute contract profit @ 3% in place of 4.5% - Decided in favor of the assessee

Summary

Issues Involved:
1. Disallowance under Section 40(a)(ia) of the Income Tax Act.
2. Deletion of addition under Section 69C of the Income Tax Act.
3. Allowing higher rate of depreciation on machinery given on hire.
4. Application of profit rate for estimating contract income.

Issue-wise Detailed Analysis:

1. Disallowance under Section 40(a)(ia) of the Income Tax Act:
The primary issue in the assessee's appeal for the assessment year 2006-07 was the disallowance of Rs. 1,44,91,357/- under Section 40(a)(ia) due to non-deduction of TDS on hire charges paid to M/s Bharat Earth Movers. The assessee argued that the payment was for machinery hire and not for a contractual work, thus TDS under Section 194C was not applicable. The Assessing Officer (A.O.) based his conclusion on the Inspector's report and a bill from M/s Bharat Earth Movers, treating the payment as contractual. The CIT(A) upheld this view, relying on the Inspector's findings and the statement of a partner of Bharat Earth Movers. However, the Tribunal found that there was no written contract, and the certificate from Bharat Earth Movers indicated the payment was for hire charges. The Tribunal concluded that the transactions should fall under Section 194-I, which was not applicable for the assessment year 2006-07. Therefore, the addition under Section 40(a)(ia) was deleted.

2. Deletion of Addition under Section 69C of the Income Tax Act:
For the assessment years 2006-07 and 2007-08, the department challenged the deletion of additions made under Section 69C for payments made to different parties against earlier year's liabilities. The A.O. treated these payments as unexplained expenditures. The assessee explained that these were old liabilities brought forward and not incurred during the current year. The CIT(A) agreed, noting that Section 69C applies to expenditures incurred during the financial year under assessment. The Tribunal upheld the CIT(A)'s decision, confirming that the payments related to earlier liabilities and did not affect the current year's profit and loss account.

3. Allowing Higher Rate of Depreciation on Machinery Given on Hire:
The department contested the CIT(A)'s decision to allow a higher rate of depreciation on machinery given on hire, resulting in a relief of Rs. 7,75,104/- for the assessee in the assessment year 2006-07. The A.O. had observed that the assessee earned substantial income from hiring out machinery. The CIT(A) found that the machinery was indeed let out on hire, supported by independent confirmation from the hirer. The Tribunal upheld the CIT(A)'s finding, noting that the department could not controvert the evidence provided by the assessee.

4. Application of Profit Rate for Estimating Contract Income:
For the assessment year 2007-08, the department objected to the CIT(A)'s direction to apply a profit rate of 3% instead of 4.5% as estimated by the A.O. The A.O. had increased the contract profit based on a higher estimated profit rate due to low disclosed profits. The CIT(A) considered past profit rates and the nature of the assessee's business, concluding that a 3% profit rate was reasonable. The Tribunal agreed with the CIT(A), noting that the estimation should be fair and have a reasonable nexus to the available material and circumstances. The Tribunal upheld the CIT(A)'s direction to apply a 3% profit rate.

Conclusion:
The Tribunal allowed the assessee's appeal for the assessment year 2006-07, deleting the disallowance under Section 40(a)(ia). It dismissed the department's appeals for both assessment years 2006-07 and 2007-08, upholding the CIT(A)'s decisions on the deletion of additions under Section 69C, allowing higher depreciation on hired machinery, and applying a 3% profit rate for estimating contract income.