2012 (6) TMI 535 - AT - Income Tax

Whether Commissioner of Income-tax (Appeals) has erred in confirming the action of Assessing Officer in making disallowance of expenditure of Rs. 71, 00, 339/- u/s. 40(a)(ia) of the I.T. Act Held that - peculiarity of this case is that the sub-contract which was assigned to this assessee was not further sub-contracted to the lorry owners. In a sub-contract a prudent contractor generally include the clauses of liability which were undertaken by him while accepting the execution of the work from the main contractor. condition of passing of the liability cannot exhaustive and cannot be said to be the only criteria to decide whether there was an existence of contract or sub-contract. The catalog of criterion must include certain other clauses as well yet in this case this criteria can be determinative considering the nature of work assigned by the assessee to transporters. in the absence of transfer or pass-over of any contractual responsibility to transporters as a sub-contractor the assessee being an individual was not responsible for the deduction of tax at source as prescribed u/s. 194C(2) of the IT Act. Consequence thereupon the provisions of section 40(a)(ia) of the Act were incorrectly invoked hence the view taken by the authorities below are hereby reversed. Ground is allowed Whether Commissioner of Income-tax (Appeals) has erred in confirming the action of Assessing Officer in making disallowance of Rs. 45, 275/- being 20% of telephone expenses and 10% of other expenses - under the head miscellaneous expenses staff welfare expenses telephone expenses travelling expenses etc. a total sum of Rs. 3, 87, 801/- was debited out of which the AO has made disallowance at 20% amounting to Rs. 77, 560 - Held that - When it was contested before the ld. CIT(A) the disallowance in respect of telephone expenses @ 20% was upheld. However the disallowance in respect of other heads it was restricted to 10%. On hearing the submissions of both the sides and considering the nature of business as also the size of the business we hereby hold that only 5% disallowance should suffice to cover up the expenditure alleged to be made towards personal use by the assessee. appeal of the assessee is partly allowed

Summary

Issues Involved:
1. Disallowance of 10% out of wages, labor, and salary expenses.
2. Disallowance of expenditure under Section 40(a)(ia) of the IT Act for non-deduction of TDS on transportation expenses.
3. Disallowance of 20% of telephone expenses and 10% of other expenses.

Issue-wise Detailed Analysis:

1. Disallowance of 10% out of wages, labor, and salary expenses:
The first ground raised by the assessee was regarding the disallowance of Rs. 2,86,357/- being 10% out of wages, labor, and salary expenses. The assessee's representative expressed not to press this ground, and hence, it was dismissed as not pressed.

2. Disallowance of expenditure under Section 40(a)(ia) of the IT Act:
The second ground concerned the disallowance of Rs. 71,00,339/- under Section 40(a)(ia) of the IT Act due to non-deduction of TDS on transportation expenses. The assessee, engaged in civil work as a proprietor, claimed transportation expenses without deducting TDS as required under Section 194C. The AO disallowed the amount, considering it a violation of Section 40(a)(ia).

The assessee argued that the payments to transporters were not sub-contracts but principal-to-principal arrangements, and thus, Section 194C(2) was not applicable. The CIT(A) disagreed, stating that the assessee was a contractor and the transporters were sub-contractors, making Section 194C(2) applicable. The CIT(A) upheld the disallowance.

Upon appeal, the Tribunal examined the provisions of Section 194C, noting the amendments and the specific applicability to individuals only from 1-6-2007. For the assessment year 2007-08, the Tribunal held that the provisions of Section 194C(1)(k) were not applicable to the assessee, an individual. The Tribunal further analyzed the contractual relationships and concluded that the transporters were not sub-contractors but independent contractors. Therefore, the assessee was not liable for TDS under Section 194C(2), and the disallowance under Section 40(a)(ia) was incorrect. The Tribunal allowed this ground in favor of the assessee.

3. Disallowance of 20% of telephone expenses and 10% of other expenses:
The third ground involved the disallowance of Rs. 45,275/- being 20% of telephone expenses and 10% of other expenses. The AO initially disallowed 20% of miscellaneous expenses, including staff welfare, telephone, and traveling expenses, totaling Rs. 3,87,801/-. The CIT(A) upheld the 20% disallowance for telephone expenses but reduced the disallowance for other expenses to 10%.

Upon appeal, the Tribunal considered the nature and size of the business and concluded that a 5% disallowance would suffice to cover personal use. The Tribunal directed a partial relief, reducing the disallowance to 5%. This ground was partly allowed.

Conclusion:
The appeal of the assessee was partly allowed, with the Tribunal reversing the disallowance under Section 40(a)(ia) and reducing the disallowance on telephone and other expenses. The first ground was dismissed as not pressed.