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2015 (4) TMI 543 - ITAT AHMEDABAD

2015 (4) TMI 543 - ITAT AHMEDABAD - TMI - Unexplained cash credit u/s.68 - CIT(A) deleted the addition - Held that:- Amount of ₹ 1,00,000/- received from Nanak Sadi Centre and ₹ 2,50,000/- received from Nilkanth Industries was not found cash credits but repayment received from them towards advances made to them on earlier dates. In this background, CIT(A) was convinced from the explanation given by assessee that amounts represent advance repayments from Nanak Sadi Centre and Nilkanth .....

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rting Contractor, assessee has hired Hydraulic Trucks for carting boulders from explosion sites to the crushers sites for making metals etc. Payments were made on regular basis. In case of Associated Cement Ltd. (1993 (3) TMI 1 - SUPREME Court) was in connection with ‘any work’ and ‘on income comprised therein’ in Section 194C(1) of the Act. CIT(A) distinguishing the case law has rightly confirmed the addition made by Assessing Officer invoking the provisions of Section 40(a)(ia) of the Act. - D .....

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aking metals etc. - Decided against assessee.

Payment made to Ramaiya Compressorwala and Ladubhai Compressorwala, payments were for hire or rent charge for equipment like compressor only. CIT(A) having considered the submission of assessee observed that assessee has been hiring equipment from year to year and the payments are made on regular basis even if no written agreement exists between the contractor and contractee. The equipment is specialized one hired for the drilling work. H .....

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t credited is exigible to TDS. Therefore, only amount of ₹ 15,000/- provision made on 31.03.2006 for fees to be paid for the year concerned i.e. A.Y.2006-07 may attract TDS liability and amount paid ₹ 15,000/- fees accrued for earlier year and paid in the year 2006-07 was not exigible to TDS. Provision made of ₹ 15,000/- fees payable to Income Tax Consultant on 31.3.2006 for the A.Y. 2006-07 which was understood as credited in any other name, is exigible to TDS but being below .....

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fore non-deduction of Tax does not attract the provision of Section 40(a)(ia). In view of the above, CIT(A) agreed with the contention of assessee that payment made on this account is not subject provision of Section 40(a)(ia) of the Act. Accordingly, CIT(A) rightly directed the Assessing Officer to delete the additions made on this account. This reasoned finding of CIT(A) needs no interference - Decided against revenue.

Addition u/s 40(A)(3) - payment exceeding ₹ 20,000/- at o .....

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served by any bank to any person who ordinarily reside or carrying on any profession, business or vocation in any of village. Payees had no bank account at Alipore-Degam, therefore assessee was required to make payment in cash. In this background, CIT(A) was justified in directing the Assessing Officer to delete addition because application was within eligible limits. This reasoned finding of CIT(A) needs no interference - Decided against revenue.

Disallowance of 10% and 5% out of var .....

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; 23,12,858/- [(Rs.70,825/- ) + (Rs.48,610/-) + (Rs.21,93,423/-) = 23,12,858/-]. This reasoned finding of CIT(A) need no interference from our side - Decided against revenue.

Disallowance of agricultural income - AO after making inquiry from land records and from APMC gave the finding that assessee had inflated income from vegetables - Held that:- After considering the facts and circumstances of the case, CIT(A) found that Assessing Officer was too conservative to adopt income from sa .....

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he Appellant :Shri M. K. Singh, Sr. D.R. For the Respondent : Shri Umaid Singh Bhati, A.R. ORDER Per Shailendra Kumar Yadav, J.M: These two set of Cross appeals of assessee and Revenue are arising out form the orders of CIT(A), Valsad, dated 24.11.2010 for the assessment years 2006-07 and 25.11.2010 for A.Y. 2007-08. So, they are being disposed of by way of this common order for the sake of convenience. 2. In ITA No. 435/Ahd/2011 for A.Y. 2006-07, Revenue has filed appeal on the following ground .....

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mount of the income 'tax consultant fees, auditors remuneration to the respective persons. [3] On the facts and in the circumstances of the case and in law, the Hon'ble CIT(A) erred in deleting the addition of ₹ 19,253/- made by invoking section 40(A)(3) of the IT Act. in respect of payment exceeding ₹ 20,000/- at one time in a single day. [4] On the facts and in the circumstances of the case and in law, the Hon'ble CIT(A) erred in deleting the addition of ₹ 34,992/ .....

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essee has filed appeal on the following grounds: (1) Lr. A.O. has erred in law and on facts to invoke provisions of Sec.40a(ia) of the Act in respect of payment to Manoj C. Patel, Proprietor of Mohmangal Carting Contractor for ₹ 3,62,440/ towards moving metal from mine to crusher machine and crushed metal from crusher machine to storage place ignoring the fact that movement of goods within factory premises does not came within abmit of Sec. 194C.Lr. CIT(Appls.), Valsad also erred in law to .....

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Appls.), Valsad has also erred in holding that hiring of equipment attracts provisions of Sec.l94C of the Act. (3) Lr. A.O. has erred in law and on facts to disallow 10% out of Telephone expenses, Petrol expenses and Motor car depreciation on personal ground. Lr. CIT(Appls.), Valsad has also erred in restricting such disallowance to 5% on presumptive and ad hoc basis. (4) Lr. A.O. has erred in law and on facts to add ₹ 1,14,672/ being 5% of repairs / maintenance and diesel expenses without .....

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wer authorities. 3. Assessee is running a stone quarry and is also doing agricultural activity for last many years. He is extracting boulders from his quarry and after crushing converting them into stone or metal of various sizes as per the requirement of customers. Assessee has been paying royalty as specified by Government of Gujarat for extracting stone from quarry land. 3.1 First issue is with regards to addition of ₹ 1,00,000/- and ₹ 2,50,000/- u/s.68 of Income Tax Act. In asses .....

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,50,000/- under the provision of Section 68 of the Act. 3.2 Matter was carried before the First Appellate Authority, wherein assessee filed (1) a copy of confirmation from Shree Nanak Sadi Centre, Chikhli i.e. copy of assessee,s account in their books (2) Copy of Centurian Bank's current account's statement for a period of 30.6.2005 to 27.07.2005 showing an amount of ₹ 1,00,000/- advanced by Nilkanth Quarry Works to Nanak Sadi Centre on 21.7.2005 vide cheque No.248384 shown withdra .....

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repayments of Advances made by assessee to Nilkanth Industries which is a proprietary concern of his daughter-in-law (son's wife). Assessee produced a copy of ledger account of Nilkanth Industries from his books of account which shows ₹ 2,00,000/- being drawn on ICICI Bank on Dt.20.6.2005 and ₹ 50,000/- on 21.11.2005 drawn on ICICI Bank, Surat Branch. The ICICI Bank statement for the month of June,2005 and November, 2005 confirms this position. M/s. Nilkanth Quarry Works is shown .....

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d Nilkanth Industries and fully explained and held that in these circumstances, provisions of Section 68 of the Act are not attracted and accordingly, he rightly directed the Assessing Officer to delete the addition in question. This reasoned finding of CIT(A), needs no interference from our side. We uphold the same. 4. Next issue is with regards to disallowance of following amounts by invoking provisions of Section 40(a)(ia) of the Act because assessee had not deducted at source before making t .....

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ies for first three items. Assessing Officer also considered the alternative plea made by assessee before him before coming to the conclusion. Stand of assessee has been that as per guidelines of CBDT in view of Supreme Court's judgement in case of Associated Cement Company Ltd. Vs. CIT (1993) 201 ITR 435 (SC) wherein it has been held that provisions of Section 194C would not be made applicable to the payment made for hiring or renting of equipment. Referring the said decision, it was conten .....

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d before the First Appellate Authority, wherein various contentions were raised as discussed above and having considered the same CIT(A) also confirmed the addition. With regard to addition made to MohMangal Carting Contractor, Ramaiya Compressorwala and Ladubhai Compressorwala while deleted the addition made on account of Fees paid to Auditor. Against deletion of ₹ 75,000/- made within meaning of Section 40(a)(ia) read with Section 194J for not deducting tax at source while making payment .....

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o MohMangal Carting Contractor, assessee has hired Hydraulic Trucks for carting boulders from explosion sites to the crushers sites for making metals etc. Payments were made on regular basis. In case of Associated Cement Ltd. (supra) was in connection with any work and on income comprised therein in Section 194C(1) of the Act. CIT(A) distinguishing the case law has rightly confirmed the addition made by Assessing Officer invoking the provisions of Section 40(a)(ia) of the Act. We uphold the same .....

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regard to payment made to Ramaiya Compressorwala and Ladubhai Compressorwala. Stand of assessee has been that these payments do not attract provision of Section 194C. Payment made to Ramaiya Compressorwala of ₹ 1,61,006/- was for hiring charges of Compressor used in making holes or drilling holes in quarry land to fill explosives to blast out. Man power, materials used in this drilling work are supplied by assessee. Payments were for hire or rent charge for equipment like compressor only. .....

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ecialized one hired for the drilling work. Hiring of such equipment and payment on such hiring squarely falls within the scope of Section 194C. In view of above, CIT(A) confirmed the order with regard to above payments, disallowed by Assessing Officer by invoking provision of Section 40(a)(ia). This factual and reasoned finding of CIT(A) needs no interference from our side. We uphold the same. 4.2.3 Regarding disallowance of payment made for accounting work, Audit fees and Income Tax fees payabl .....

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sessee vide his letter dated 15.12.2008 explained to the Assessing Officer, drawing his attention to the ledger entries in this regard, but Assessing Officer rejected the stand of assessee and made addition of ₹ 75,000/-. Matter was carried before the First Appellate Authority, wherein various contentions were raised on behalf of assessee and having considered the same CIT(A) granted relief to the assessee. Same has been opposed on behalf of Revenue inter alia submitted that CIT(A) erred i .....

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consideration. Assessee made provision of Income Tax fees payable for A.Y. 2006-07. Provision is nothing but expenditure payable was debited and to whom to be paid was either to be credited to the person concerned or crediting consultant fees payable account. Thus, in case of assessee who follows mercantile system, income & expenditure account pertaining to the relevant year is required to be shown as liability. When outstanding liability is paid, it is not payable of current year expenditu .....

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onsultant on 31.3.2006 for the A.Y. 2006-07 which was understood as credited in any other name, is exigible to TDS but being below ₹ 20,000/, no TDS was required to be made. Regarding Accounting fees, amount of ₹ 20,000/- was shown payable on 01.4.2005 was the expenditure of earlier year and paid during the year is not expenditure but a discharging of liability which is not exigible to TDS Provision made of ₹ 20,000/- of Accounting fees for A.Y.2006-07 was as good as amount of .....

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CIT(A) needs no interference from our side. We uphold the same. This take care of ground no.1 & 2 raised in assessee s appeal and ground no.2 of Revenue s appeal. 5. Next issue is with regards to disallowance of ₹ 19,253/- made by the Assessing Officer by invoking provision of Section u/s. 40A(3) of the Act. Assessing Officer in para (6) of his Order has given the particulars of amount of ₹ 96,296/- paid to Laxmanbhai and 3 others Compressorwalas in Tabular form. Assessing Office .....

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wala. Payments made to them were treated as contract receipts then why total payments of ₹ 96,296/- were treated not payments for contract Works. Assessee contended that Assessing Officer has given no reason for distinguishing payment made to Ramaiya Compressorwala and Ladubhai Compressorwala from payments made to each of these 4 Compressorwalas who are also paid hire charges for hiring their compressors. In the case of 4 Compressorwalas, payment made to each of them did not exceed ₹ .....

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o ordinarily reside or carrying on any profession, business or vocation in any of village. Payees had no bank account at Alipore-Degam, therefore assessee was required to make payment in cash. In this background, CIT(A) was justified in directing the Assessing Officer to delete addition because application was within eligible limits. This reasoned finding of CIT(A) needs no interference from our side. We uphold the same. 6. Next issue is with regards to disallowance of 10% and 5% out of various .....

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being 5% out of above v & vi aggregate expenses of ₹ 22,93,423/-. In appeal, CIT(A) estimated lump sum 5% disallowance on Telephone expenses (Rs.70,825/-), petrol expenses (Rs.48,610/-) and diesel expenses (Rs.21,93,423/-) and directed the Assessing Officer to restrict the disallowance to 5% of ₹ 23,12,858/- [(Rs.70,825/- ) + (Rs.48,610/-) + (Rs.21,93,423/-) = 23,12,858/-]. This reasoned finding of CIT(A) need no interference from our side. We uphold the same. 7. Next issue is w .....

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t Assessing Officer has not disputed the land owned by assessee and vegetables, Mango and paddy were grown there. The dispute was only on the income from vegetables. It was also stated that generally expenses on cultivation comes to 25% to 30%. While contesting the rate from APMC, Chikhli, adopted by Assessing Officer, assessee contended that the rate can vary depending on the availability of produce in market in a particular day. In case of assessee, it is sold on retail basis, therefore, rates .....

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us unverifiable agriculture income. CIT(A) observed that there is no dispute on land holding and the produce thereon. The only dispute was that Assessing Officer found only issue with regard to income from vegetables. After considering the facts and circumstances of the case, CIT(A) found that Assessing Officer was too conservative to adopt income from sale vegetables at ₹ 24,200/-. Vegetables are grown from 0.59 Hector. Accordingly, he estimated the income from vegetable at ₹ 3,50,0 .....

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u/s.68 of the IT Act. [2) On the facts and in the circumstances of the case and in law, the Hon'ble CIT(A) erred in deleting the addition of ₹ 15,940/- out o total addition of ₹ 1,15,940/- made on account of disallowance of excess payment of royalty claimed. [3] On the facts and in the circumstances of the case and in law, the Hon'ble CIT(A) erred in deleting the addition of ₹ 41,469/- made on account of personal use of car and telephone expenses. [4] On the facts and i .....

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Contractor who hired out hydraulic truck for shifting crushed material from stone-mine and crushed stones from crusher machine to storage site, does not attract provisions of Sec.194C. A.O. and Lr. CIT(Appls.), Valsad presumed without any evidence that there was oral contract between assessee and Manoj C. Patel for such carting work. Payment of ₹ 6,15,320/- does not attract provisions of Sec.194C of I.T.Act, 1961 and therefore invocation of provisions of Sec. 40a(ia) is not just and proper .....

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ls and therefore disallowance made by A.O. is not just and proper. Lr.CIT(Appls.), Valsad has also erred in sustaining disallowance of ₹ 4,65,435/-. 9. First issue in Revenue s appeal is with regards to addition of ₹ 1 lac made by Assessing Officer u/s. 68 of the Act. Stand of assessee has been that amount pertains to repayment of advance made to Nanak Saree Centre and situation was clarified with regard to ledger account and bank statements. Similar point is raised in A.Y. 2006-07 o .....

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ct. As per para 6 of assessment order, Assessing Officer treated payment made to Manojbhai C. Patel proprietor of M/s. Mohmangal Carting Contract falls u/s.194C of the Act and provisions of Section 40a(ia) were applicable. Accordingly, he disallowed expenses of ₹ 6,15,231/-. 10.1 Matter was carried before the First Appellate Authority wherein CIT(A) confirmed the same. Same has been opposed before us. We find that in similar set of facts in A.Y. 2006-07 in assessee s own case while dealing .....

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decision for A.Y. 06-07 under the provisions of Section 194C. Same is upheld. 11. Next issue in Revenue s appeal is with regards to addition of ₹ 15,940/- out of total addition of ₹ 1,15,940/- made on account of disallowance of excess payment of Royalty. Assessing Officer noticed that assessee had debited excess royalty charges in profit and loss account. He collected information form the Mining Department which confirmed royalty paid was ₹ 13,58,098/- whereas assessee had clai .....

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y, Assessing Officer was rightly directed to allow the deduction of royalty expenses of ₹ 13,74,038/-. Same is upheld. 12. Next issue is with regards to various miscellaneous expenses. Assessing Officer made disallowance of ₹ 41,469/- being 10% of various expenses claimed. In appeal, CIT(A) observed that in assessee s appeal for A.Y. 2006-07, personal element can be attributable for telephone and petrol/diesel expenses. Assessing Officer has disallowed 10% of expenses on telephone, d .....

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,145/- and treating same as business income by Assessing Officer. Facts of the case are that assessee has shown ₹ 12,74,936/- as income from agriculture in return of income. Assessing Officer suspected in earlier year assessee had inflated agricultural income to cover up the concealed income from quarry business of assessee. Findings of Assessing Officer were found identical in previous year. The submission made by assessee before CIT(A) was also identical barring few legal submissions. In .....

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39/- 4,90,329/- 9,81,010/- The expenditure made by assessee although details were not produced before Assessing Officer, was 33.31%. The produce cost vis-à-vis sales will be more, particularly for vegetable, compared to places well connected and consumers are located near by to the produce centre. In the instant case, assessee s produce centre is located in interior village limits. Assessee had also claimed of having grown sugarcane and chikku in protion of land which Assessing Officer ha .....

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t assessee has increased agricultural income at 30% which appears to be higher side particularly the area of cultivation remains same. In this background, CIT(A) observed that there is no dispute on land holding . However, Assessing Officer had disputed the produce of mango and vegetables thereby he treated the income from those items as unaccounted income from business. Assessing Officer disputed the income by way of sale of vegetables and mango. In earlier year, Assessing Officer had given fin .....

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