2015 (7) TMI 70 - AT - Income Tax

Business of works contract implementation - Addition on account of mismatch of Unsecured loan - Addition on account of Non-accounting of hire charges payable- Addition on account of Non-accounting of TDS - Addition on account of low rate of TDS on sub-contracts - Held that - In view of the findings of the Assessing Officer in the remand report, inter alia, that on verification of the same, it was found that the total figure of ₹ 41,71,000/- shown under the head advance from customers in the balance sheet as at 31.3.2008 includes the sum of ₹ 28,60,000/-, now it can be concluded that instead of showing this amount under unsecured loan the assessee has included it in advance from customers under the major head of current liabilities and provisions, and in regard to the amount of ₹ 10,00,000/-, it is, inter alia, stated that it is concluded that the unsecured loan of ₹ 10,00,000/- was received by the assessee from Sri Bijay Kumar Behera during financial year 2006-07 relevant to the assessment year 2007-08 which still remains advance from customers instead of unsecured loan included in the liabilities of the balance sheet , we do not find any infirmity in the order of ld CIT(A) to interfere as the AO has clearly accepted the assessee s contention after due verification. Ld CIT(A) deleted the addition relying on the findings of the Assessing Officer in the remand report, wherein, he has clearly stated that all payments were made on different dates and to different persons, which are below ₹ 20,000/- and, therefore, provisions of section 194C were not attracted. We do not find any reason to interfere with the order of ld CIT(A). Hence, Ground No.3 is rejected. Scope of section 194C - We find that ITAT Delhi Bench in the case of Mrs Kanak Singh in 2015 (7) TMI 69 - ITAT DELHI order dated 19.9.2014 held that it is to be noted that for disallowing expenses from business and profession on the ground that TDS has not been deducted, the amount should be payable and not which has been paid by the end of the year. We do not find that the Tribunal has committed any error in recording the finding on the facts, which were not controverted by the department and thus the question of law as framed does not arise for consideration in the appeal. The income tax appeal is dismissed. We restore this issue to the file of the AO to verify the assessee s contention and if it is found that a sum of ₹ 10 lakhs represented the opening balance in the accounts of S.S.Builders, then the contention of the assessee that provisions of section 194C are not attracted, has to be accepted. The contention of ld counsel for the assessee that provisions of section 194C are not attracted, is not acceptable because on one hand, assessee is pleading that section 194C is not attracted as the amount represented opening balance but on the other hand, he is claiming that disallowance cannot be made under section 40(a)(ia) of the Act because payment had been made. Thus, the assessee is taking contradictory stand. Hence, Ground No.4 is allowed for statistical purposes. - Appeal filed by the revenue dismissed and assessee s appeal is partly allowed.

Summary

Issues Involved:
1. Deletion of additions regarding unsecured loans.
2. Deletion of addition under Section 69C for non-accounting of hire charges payable.
3. Deletion of addition under Section 40(a)(ia) for non-deduction of TDS.
4. Alleged violation of Rule 46A by CIT(A).
5. Disallowance of expenses under Section 40(a)(ia) for payments made to subcontractors.

Issue-wise Detailed Analysis:

1. Deletion of Additions Regarding Unsecured Loans:
The Assessing Officer (AO) observed discrepancies in the balance sheet regarding unsecured loans from Anand Exports (Rs. 28,60,000/-) and B. Behera (Rs. 10,00,000/-), which led to additions under Section 69C of the Income Tax Act. The CIT(A) deleted these additions after considering the remand report, which confirmed that these amounts were disclosed under "advance from customers" in the balance sheet. The Tribunal upheld the CIT(A)'s decision, finding no infirmity since the AO accepted the assessee's contention after due verification. Hence, Ground Nos. 1 & 2 of the department's appeal were dismissed.

2. Deletion of Addition Under Section 69C for Non-Accounting of Hire Charges Payable:
The AO made an addition of Rs. 9,75,000/- under Section 69C for non-accounting of hire charges payable. The CIT(A) deleted this addition, noting that the amount was part of the liabilities in Schedule-4 of the balance sheet, as verified by the AO during the remand. The Tribunal found no reason to interfere with the CIT(A)'s order and dismissed Ground No. 3 of the department's appeal.

3. Deletion of Addition Under Section 40(a)(ia) for Non-Deduction of TDS:
The AO disallowed Rs. 1,55,000/- under Section 40(a)(ia) for non-deduction of TDS on payments made to Prabir Kumar Rout. The CIT(A) deleted the addition based on the AO's remand report, which indicated that all payments were made on different dates and to different persons, each below Rs. 20,000/-, thus not attracting Section 194C. The Tribunal upheld the CIT(A)'s decision and rejected Ground No. 3 of the department's appeal.

4. Alleged Violation of Rule 46A by CIT(A):
The department contended that the CIT(A) violated Rule 46A by accepting the assessee's contentions without a comprehensive remand report. The Tribunal found no violation since the CIT(A) had called for a remand report and decided the issue based on it. Hence, Ground No. 4 of the department's appeal was rejected.

5. Disallowance of Expenses Under Section 40(a)(ia) for Payments Made to Subcontractors:
The assessee's appeal involved disallowances of Rs. 1,75,000/- paid to Subrat Sahoo and Rs. 78,100/- to Biswajit Construction under Section 40(a)(ia). The AO disallowed these amounts for non-deduction of TDS, considering them service contracts under Section 194C. The CIT(A) confirmed the additions. The Tribunal, referencing the ITAT Delhi Bench and Hon'ble Allahabad High Court decisions, allowed Ground Nos. 2 & 3 of the assessee's appeal, noting that no amount was outstanding at the year-end.

Regarding the Rs. 10,00,000/- paid to S.S. Builders, the Tribunal restored this issue to the AO for verification of whether it represented an opening balance. If confirmed, the provisions of Section 194C would not be attracted. Hence, Ground No. 4 was allowed for statistical purposes.

Ground No. 5 was partly allowed in light of the findings on Ground Nos. 2 & 3.

Conclusion:
- The department's appeal was dismissed.
- The assessee's appeal was partly allowed, with specific issues remanded for further verification.