TMI Blog2016 (7) TMI 322X X X X Extracts X X X X X X X X Extracts X X X X ..... the instant case, the disallowance made is sustainable primarily on account of non-availability of documentary evidences on the part of the assessee and not for the reasons of non-appearance of the parties summoned. Therefore, case laws cited by the assessee are of no assistance to the assessee. Needless to say, the primary onus to establish the bonafides of the transactions always lies with the assessee, which has not been discharged in the instant case. In the totality of circumstances, we find no infirmity in the order of the CIT(A). - Decided against assessee. - ITA No.858/PN/2014 - - - Dated:- 27-5-2016 - SHRI VIKAS AWASTHY, JM AND SHRI PRADIP KUMAR KEDIA, AM For The Appellant : Shri C. H. Naniwadekar For The Respondent : ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... usher 6,05,000.00 Total 23,93,862.00 4. The assessee was called upon by the Assessing Officer to produce the account extract of the above mentioned parties. The Assessing Officer also considered it expedient to verify the claim and the nature of services rendered by these five parties such as site for which work was done, specification of work, rate, the number of labourers supplied, nature of goods purchased if any, etc.. The assessee was requested to produce these parties for cross-verification of claim and goods/services stated to be received from these parties. The assessee, however, could not furnish any details and thus failed to substa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is claim. The Assessing Officer, therefore, noted that the averments made before him are bald and could not be supported by the documentary evidences. Similar statements were recorded in the case of Shri Gulab Shah. Shri Gulab Shah also confirmed having done work of ₹ 6.18 lakh for the assessee but he also failed to substantiate the assertions made by any documentary evidence. 6. It was also asserted in the Remand Report that the impugned payments were made in cash and no TDS was deducted thereon. The Assessing Officer, thus, observed that the genuineness of the sub-contract expenses is not proved. The only two sub-contractors out of five sub-contractors appeared for the examination but except for oral assertions, were unable to pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ons asserted that they have received the payments from the assessee in consideration of services rendered. The Ld. AR vehemently asserted that assessee cannot be held responsible for non-appearance of parties summoned. He relied upon the decision of Agra Bench of ITAT in the case of ITO vs. Mayur Agarwal, (2011) 128 ITD 55 (TM) and the decision of Ahmedabad Bench of ITAT in the case of Sunij Pharma P. Ltd. vs. DCIT, (2014) 42 CCH 59 (Ahd-Trib.) (copy placed in file) for the aforesaid proposition. 9. The Ld. Departmental Representative (DR) for the Revenue, on the other hand, submitted that the assessee has not discharged the primary onus of substantiating the claim by documentary evidences. He relied upon the order of the authorities bel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... id account extract also reveals that in all these five parties, there are several instances where several payments have been shown to be made in cash on the same date which if clubbed together will breach the threshold limit set under S. 40A(3) of the Act. Section 40A(3) obliges the assessee to shun settlement of payments towards expenditure in cash and avail banking channel for making payments above threshold limit of ₹ 20000/-. S. 194C also casts obligations to deduct TDS on payments made towards carrying out any work and deposit the same to the Govt. treasury as per statutory framework provided under the Act. Thus, series of cash payments running for days and months to the same party which hovers around threshold limit is uncharact ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... comprehensible. The payment of such large amount in cash without meeting obligations under S. 40A(3) and/or to deduct TDS clearly casts aspersions on the conduct of the assessee. Two of the parties who attended in response to the summons in the remand proceedings also could not furnish any worthwhile evidence to support their assertions of receipt of money. Thus, such averment is not of evidentiary value. Thus, when the facts and circumstances are integrated, it is evident that the assessee could not discharge onus which lay upon it by adducing any cogent evidence to support the bonafides of the claim as a first step de hors the appearance or otherwise of the parties summoned. Thus, on this score alone, the claim of expenses are liable to ..... X X X X Extracts X X X X X X X X Extracts X X X X
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