TMI Blog2013 (10) TMI 420X X X X Extracts X X X X X X X X Extracts X X X X ..... eration amounted to Rs. 5,11,800/- - Payments made to Shri Amar Singh Solanki were on account of dining charges i.e. for meals of the labourers and the staff members - When the Assessing Officer himself admitted that those payments were made on account of meals provided to the labourers, then it can't be presumed that the payments were made only for one person in a single day and not for fooding charges of many persons. However, as the details of such employees/labourers were not provided to the Assessing Officer and in absence of the details, the disallowance was made under section 40A(3) of the Act - Remanded the issue back to the file of Assessing Officer to verify from the details, if any, submitted by the assessee as to whether the impugned amount was reimbursement of the meal charges to Shri Amar Singh Solanki or it was payments towards expenses exceeding to Rs. 20,000/- - ITA No.388/Jodh/2012 - - - Dated:- 7-10-2013 - Shri Hari Om Maratha And Shri N. K. Saini,JJ. For the Petitioner : Shri U. C. Jain Shri Rajendra Jain For the Department By : Shri N.A. Joshi- D. R. ORDER Per N. K. Saini, A. M. This is an appeal by the assessee against the order d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 6AS submitted by the contractee-company, the total contract payment to the assessee were shown at Rs. 1,51,89,921/- with TDS of Rs. 3,44,403/-. He was of the view that the receipts of Rs.24,09,162/- were not shown by the assessee. The explanation of the assessee was that the said amount must represent the book adjustment entries made by the company (contractee), which in fact had not been received by the assessee. The Assessing Officer had given the details of receipts shown by the assessee in the books of accounts at Rs. 1,27,89,759/- along with TDS of Rs. 2,89,809/- and also the details of receipts not shown by the assessee at pages 4 5 (not numbered) of the assessment order dated 28/11/2011. The Assessing Officer pointed out that the assessee had not shown the receipts of Rs. 22,29,386/- received from M/s. Binani Cement Works Ltd. Sikar and Rs. 1,79,776/- received from FLSMDTH Pvt. Ltd. He also noted that in the bank account, the assessee had shown deposit of Rs. 96,07,478/- including certain cash deposits as against the contract receipts shown of Rs. 1,27,89,759/-. It was pointed out by the Assessing Officer that the assessee partly shown the receipts from M/s. Binani Cement ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rk at Sikar during December to March 2008-09. Subsequently there was a dispute also. Regarding Rs. 1,79,776/- the payment was received before April,2008 and it does not fall in the Assessment Year 2009-10. 4. The learned A.O. termed the whole submission as a story. The learned A.O. asked to produce various details and documents. Since these were lost in transit, which was further substantiated by lodging a F.I.R. of loss by the Assessee. 5. Without pre-judicious to above, the nexus of the point and ground of the appeal is alleged addition of suppressed contract receipts of Rs. 24,09,162/- was added as Income in the hands of the assessee. This fact is further important that Form No. 26AS is authentic public document but illiterate assessees most of the time fails to access Form No. 26AS online and due to this reason also this fact the receipts remained un-accounted. The assessee as well did not claim TDS and also the expenses. The learned A.O. has nowhere in his assessment order disputed the circumstances in the justice of law and on the basis of various case laws. Even in the case of search and seizure assessment, the total suppressed sum has been held un-justified as addition ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... resaid contract receipt of Rs. 24,09,762.00 added = 30,40,276.00 gives a Net Profit rate of 23.77% which is impossible and impractical. This would have given a unbelievable result. Hence this presumption of the learned A.O. is neither true and correct on the basis of facts as well not in law. It is very important to note that the learned A.O. in his concluding para (i) has stated that normally expected rate must of Net Profit must be 8.00% in case of assessee. Thus the learned A.O. has contradicted his own presumption." 6. The learned CIT(A) after considering the submissions of the assessee observed that the assessee initially tried to explain that the receipt of Rs. 22,29,386/- paid by M/s. Binani Cement Works Ltd. represented the book adjustment entry later-on, changed this version and claimed that the work at Neem Ka Thana unit was sub-contracted to other person for net consideration of Rs. 1,50,000/-, however, the assessee had not shown any amount from the sub-contractor of Rs. 1,50,000/-. Learned CIT(A) also observed that the assessee had not shown by way of any evidence that the expenses of relevant period at Neem Ka Thana unit were incurred by the sub-contractor and also ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... books of accounts and by the contractee in Form No. 26AS. The assessee could not produce any evidence in support of his contention that the difference was on account of adjustment entry. In the present case it is clear that the total receipts amounting to Rs. 1,51,89,921/- were not shown by the assessee, there was a difference of Rs. 24,09,162/- since the assessee had shown the contract receipts at Rs. 1,27,89,759/- only. The Assessing Officer made the addition on account of difference in those receipts. The learned CIT(A) sustained the addition of Rs. 22,29,386/- received from M/s. Binani Cement Works Ltd. and for the other receipts of Rs. 1,79,776/-, a direction was given to the Assessing Officer to verify the claim of the assessee that as to whether the said amount pertained to the preceding year and was accounted for in that year and if it was so, then no addition was called for. In our opinion, when the receipts were not shown by the assessee in the regular books of accounts, it cannot be presumed without bringing cogent material on record that the expenses related to the said receipts were shown in the books of accounts. In other words, when the receipts were out of the book ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2. Learned counsel for the assessee reiterated the submissions made before the authorities below and further submitted that the learned CIT(A) enhanced the disallowance without issuing any show-cause notice and the Assessing Officer made disallowance without appreciating the facts in the right perspective. It was further submitted that no addition was warranted under section 40A(3) of the Act since the profit was estimated by application of NP rate. 13. In his rival submissions, learned D.R. supported the orders of the authorities below. 14. We have considered the submissions of both the parties and carefully gone through the material available on record. In the present case, the observations of the Assessing Officer in para 5 of the assessment order was that the assessee made the payments towards meals charges to labourers and staff members to Shri Amar Singh Solanki and the said payments during the year under consideration amounted to Rs. 5,11,800/-. The Assessing Officer noticed that the cash payment in each day exceeded to Rs. 20,000/- and in whole of the year it was at Rs. 4,86,800/-. In the present case, it is an admitted fact that the payments made to Shri Amar Singh Sol ..... X X X X Extracts X X X X X X X X Extracts X X X X
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