TMI Blog2012 (10) TMI 468X X X X Extracts X X X X X X X X Extracts X X X X ..... sessment year under appeal. Disallowance in respect of slurry removal expenses,Repair & Maintenance Charges - Held that:- slurry removal expenses has been categorically shown in respect of tankers and lorries on which the assessee has reimbursed the expenses and this break-up has not been disproved nor shown to be wrongly claimed by the assessee. finding of the ld. CIT (Appeals) on this issue is on a right footing and does not call for any interference - revenue's appeal stand dismissed. - IT APPEAL NO. 1071 (KOL.) OF 2010 - - - Dated:- 3-7-2012 - C.D. RAO AND GEORGE MATHAN, JJ. L.K.S. Dahiya for the Appellant. S.K. Tulsiyan for the Respondent. ORDER George Mathan, Judicial Member - This is an appeal filed by the Revenue against the order of ld. Commissioner of Income Tax (Appeals)-XXXII, Kolkata in Appeal No. 126/CIT(A)-XXXII/Cir-51/08-09/Kol.dated 22.01.2010, for the assessment year 2006-07. 2. In Revenue's appeal, the revenue has raised the following grounds:- "(1) In the facts and circumstances of the case, ld. CIT(A) was not justified in directing to delete the addition of Rs. 1,99,95,180/- as labour charges when the assessee failed to pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the Assessing Officer had also examined one Shri Anant Ray, who had been produced by the assessee, who was claimed to be the supervisor of the assessee, who had made the payments to the labourers. It was the submission that the said Anant Ray was, in fact, a sub-contractor and not an employee of the assessee. It was the submission that the said Anant Ray had acquired a house property having a value of more than Rs. 5 lakh during the period and was also maintained family of three members and paying house rent of Rs. 1,000/- per month. It was the further submission that the assessee has not deducted PF or ESI contribution in respect of labourers. It was the submission that in the audit report, which was found in the paper book of the assessee at page 6, column 16(b) of the audit report, against the column showing that any sum received from employee towards contributions to any provident fund superannuating fund, etc., the same has shown as NIL. It was the submission that as the assessee had not deducted PF in respect of the employees and as the number of employees during the year exceeded 110 as per the statement of the assessee itself, there was clear violation of the provisions o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mployees of the assessee in respect of the sites, where the assessee has undertaken the projects. It was the further submission that no action has been taken against the assessee for non-deduction of TDS under the provisions of section 201 201(1A) of the Act. It was the submission that nowhere a finding has been given that the assessee was liable to deduct tax, which has not been deducted. It was the submission that as no proceedings has been initiated against the assessee u/s. 201 201(1A) and it could not be held that the assessee was liable for deduction of TDS. It was further submitted that the assessee had produced wages register maintained by the various supervisors of the assessee in respect of the projects. It was the submission that the veracity of the said wage sheets has not been proved as non genuine. It was the submission that the only issue was that the said wage sheets did not contain the signature and seal of the labourer department. It was the submission that it would not make the wage sheets maintained by the assessee is non-reliable. 6. In reply, ld. D.R. submitted that order u/s. 201 201(1A) had no bearing to the case in so far as that was an action which ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ided the issue in favour of the assessee by following the decision of the Hon'ble Special Bench of this Tribunal in the case of Merilyn Shipping Transport (supra), conceding to the submission of the ld. DR that the finding on facts is also required, we proceed to decide the issue on facts. 8. Admittedly, assessee has produced a register, which contained payments to various labourers. Admittedly, this register does not contain the addresses of the labourers nor it contains revenue stamp, nor is it signed by the Labour Department, no PF has also been deducted. Does all these wrongs in its entirety or individuality make the expenses incurred by the assessee deniable? Can this defect be held to be changing the mode of payment of the assessee from one mode to another? Here we would answer 'no'. The names of the persons are available, the project is available. No businessman, who is having multiple projects, can be expected to know the name and address of each of the workers. More so, when such workers are not permanent employees and who are working in the project only during the duration of such project. A violation of the provisions of Provident Fund Act could have best lead to ini ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the hire charges in respect of plant and machinery w.e.f. July, 2006, we are of the view that the finding of the ld. CIT (Appeals) in deleting the disallowance made by the Assessing Officer is on a right footing and does not call for any interference. 12. In regard to Grounds No. 4 5, it was the submission by the ld. DR that the said disallowance was in respect of slurry removal expenses, which the assessee had claimed to be reimbursement of expenses. It was the submission that a perusal of the chart produced by the assessee, which was shown at pages 112 to 114 of the paper book clearly shows that the assessee has shown a break-up in respect of the reimbursement of cost of consumables, etc. and repairing charges. It was the submission that normally the bill in respect of the transporting charges does not contain such break-up and the break-up was only an after thought. It was replied by the ld. AR that as the bills had been produced and the payments were specifically shown to be reimbursed of the expenses, the disallowance of the slurry removal expenses was uncalled for. He vehemently supported the order of ld. CIT (Appeals) 13. We have considered the rival submissions. As it ..... X X X X Extracts X X X X X X X X Extracts X X X X
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