TMI Blog2017 (3) TMI 973X X X X Extracts X X X X X X X X Extracts X X X X ..... Hemani Enterprises. However, he has not assigned any reasons why he has disbelieved it. The assessee supplied complete addresses, bank details, PAN and mobile no. of Shri Manoj Bhai Gohil who is the proprietor of M/s. Hemani Enterprises. The Ld. first appellant authority has observed, if assessing officer has any doubt he should have disbelieved the total contract payment made to him, why the outstanding only. The assessee was awarded contract by Canal Division of R&B department under the tender. It has executed the contract through M/s.Hemani Enterprises, if the line of action adopted by the assessing officer is being upheld, than the profit in this contract would be very abnormal because in a contract of having value of ₹ 2,17,02,016/- a some of ₹ 72,88,879/- is being treated as a profit than the ratio of profit would quite high in a Civil Construction work.AO ought to have considered that a contract given by a Govt. agency was completed and payment was made by Canal Division of Govt. department. In such situation the activities cannot be held as bogus. - Decided in favour of assessee - ITA.No.1601/Ahd/2011 - - - Dated:- 20-3-2017 - SHRI RAJPAL YADAV, JUDICIAL MEM ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... duct TDS on the labour payment to the alleged headman/contractors of labour supplier. 5. Dissatisfied with the action of AO, assessee carried the matter in appeal, it was contended by the assessee that he has not avail the services of a labourcontract, all the labourers were employed by the assesseeat its own. These were casual workers, the assessee made payment directly to the labourer, there is no relationship of a contractor and contractee between the payments of labour charges to the labourers. The assessing officer has unnecessary assumed existence of certain facts without their being any supporting materials. 6. The Ld. first appellant authority has accepted contentionsof the assessee and deleted the addition. 7. Before us,Ld.DR relied upon the order of the Assessing Officer. On the other hand the Ld.Counsel for the assessee pointed out that during the hearing beforethe Ld.first appellant authority, the assesseesubmitted all the details of payment and also emphasized that services of any sub-contractor was not availed. The Ld.CIT(A) has called for a remand report from the AO, directing him to verify some of the labourers. The Ld. AO did not bother to carry out this e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y the assessing officer with the aid of section 68 of the Income Tax Act, 1961. 11. The brief facts of the case are that during the year,assessee has assigned its two contracts to one M/s.HimaliEnterprises. In other words it has sub contracted its two work contracts awarded to it by Canal Division of R B department under tender. The sub contract was for the entire work to be completed in its entirety as per the terms of the tender and the assesseefirm was to retain 1.75% of the billed amount under the tender as its profit. M/s. Hemani Enterprises had billed for ₹ 2,17,02,016/- a total payment of ₹ 1,44,13,137/- (including TDS was made to it) the balance amount of ₹ 72,88,879/- was shown has a payable to it by the assessee in its accounts as on 31/03/2007. The Ld. AO added this amount as an unexplained cash credit. 12. On appeal, the assessee has filed written submission and it was explained has to how this addition could not be made. The submission made by the assesse, has been noted by the CIT(A) in the paragraph 6 . It is pertinent to note the observation of Ld.CIT(A) made while taking note of the assessee s submissions. In this context it is submitte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ure itself speaks of the opportunity provided and time given. However the notice u/s 133(6) was finally served on the HIMALI on 18/12/09. 11. Whereabouts of Shri MD GOHIL: Only because a person does not turnout before the Assessing Officer it cannot be established the person is nonexistent more so when all other circumstantial evidences as available to the assessee are provided. The remarks of the LD Assessing Officer that the assessee had tried to give it a colour of genuine transaction by deducting TDS on the payments made to HIMALI ENT, but unfortunately other evidence which has been collected during the assessment proceedings, points to the fact that the transaction with the HIMALI ENTERPRISES are non genuine transaction to reduce its taxable liability has no locus standi. The other evidences which the LD Assessing Officer had mentioned had been never confronted to the assessee either by way of a show cause notice or otherwise. Even the nature of such other evidences is not mentioned in the assessment order. 12. Addition u/s 68: The LD Assessing Officer had made addition of ₹ 72,88/879/- which is the outstanding amount payable to M/s Himali as on 31/03/07 do ..... X X X X Extracts X X X X X X X X Extracts X X X X
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