9911796707
TMI Blog2018 (8) TMI 128X X X X Extracts X X X X X X X X Extracts X X X X ..... tribunal") read as under:- " 1. The Learned Commissioner of Income tax Appeal (30) has erred in the facts and circumstances of the case and in law in estimating Income at the rate of 15 percent of gross turnover Rs. 8, 33, 34, 738/- (i.e. 8.33 Crs) before Interest and remuneration payable to the partners without any basis and / or comparable cases in this line of contract business hence returned Income which is 9% of turnover before interest and Remuneration to the partners be accepted. 2. The Learned Commissioner of Appeal (30) ought to have accepted the book results of the appellant, which is nine percent of the gross turnover of Rs. 8, 33, 34, 738/- before interest and Remuneration payable to the partners, which is more than 8% percent [which is acceptable in case of the appellant who is liable to tax under Section 44AD of IT Act 1961] 3. The Assessing Officer ought not to have disallowed interest under Section 36 (i) (iii) of the IT Act 1961 amounting to Rs. 1.21, 064/-. All trade advances of Rs. 29, 80.500/- are given wholly and exclusively for Business purposes in the ordinary course of business and the Learned CIT (A) 30 ought not to have confirmed the disallowance o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... th the tribunal. After hearing both the parties and concession offered by the assessee in dismissal of ground no. 3 to 5 as not being pressed, we are dismissing ground 3, 4 and 5 raised by the assessee in grounds of appeal filed along with memo of appeal filed with tribunal as not pressed. We order accordingly. 6. The learned counsel for the assessee has prayed for admission of additional grounds of appeal which as per learned counsel for the assessee is purely legal ground as to claim of the assessee that whence books of accounts are audited by a qualified chartered accountant within provisions of Section 44AB and expenses are supported by proper vouchers and authorisations, no disallowance of expenses are warranted. We direct admission of this additional ground filed by the assessee. We order accordingly. 7. The assessee is a registered firm, engaged in the business of cable laying and trenching contractor. The assessee has claimed to have paid labour charges Mukadam to the tune of Rs. 1, 28, 93, 615/- to following parties which was debited to Trading and Profit & Loss Account, as detailed hereunder: Name Amount (Rs) Ashok Kumar Sharma 581768 E Velumalai 263957 Guddu Ra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... basis. These Sardars / Mukadums are not contractors within the meaning of section 194C(2) under provisons of section 40(a)(ia) cannot be applied as decided in Samanvaya vs ACIT (2009) 34 SOT 331 (Kol) Trib. Also Nalawade C Maruti vs JCIT (2011) 48 SOT 566 (Pune) Trib, In view of the above mentioned judgment it is clear that Mukadums cannot be termed as contractors hence no TDS deductible". The AO, however, rejected the contentions of the assessee and alternatively additions were confirmed by the AO to the tune of Rs. 1, 28, 93, 615/-to the income of the assessee on account of payments made towards labour charges (Mukadam) by also invoking provisions of Section 40(a)(ia) of the 1961 Act, vide assessment order dated 26.03.2013 passed by the AO u/s 143(3) of the 1961 Act. 7. Similarly, there was an addition of Rs. 8, 75, 773/- made by the AO to the income of the assessee vide assessment order dated 26-03-2013 passed by the AO u/s 143(3) towards labour charges as the assesse failed to furnish names, addresses, PAN, amount paid and services rendered by the labour and the assessee failed to prove that the services were rendered wholly and exclusively for the business of the assessee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 013 passed by learned CIT(A). The learned CIT(A) did not admitted additional evidences and rejected the application filed by the assessee before it towards admission of additional evidences within parameters of Rule 46A of the 1962 Rules on the grounds that proof of illness of partner is not produced by the assessee. The assessee also failed to produce medical certificate before learned CIT(A) evidencing illness of partner of the assessee firm when the assessment proceedings were in progress. Similarly, the assessee could not produce evidence of illness of close relative of partner of the assessee firm because of which the assessee could not produce evidences before the AO during assessment proceedings. The assessee also could not demonstrate as to when the accountant left the assessee firm when assessment proceedings were in progress leading to non furnishing of details before the AO during assessment proceedings. All these factors weighed heavily on the minds of the learned CIT(A) which led to rejection of application filed by the assessee for admission of an additional evidences u/r 46A of the 1962 Rules. On merits, the learned CIT(A) observed that assessee is engaged in busines ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ns for delay of 930 days in filing CO late beyond time stipulated u/s 253(4) of the 1961 Act. The learned DR also could not explain why application praying for condonation of delay has not been filed before tribunal. It could also not be explained as to why no affidavit has been filed, rather the learned DR categorically stated that bench can take decision as may deemed fit. 11. We have considered rival contention and perused the material on record. We have observed that the assessee filed its appeal in the year 2014 and hearing in this case commenced before the Bench from September 2016 . Several hearing took place before tribunal since September 2016 so far as assessee's appeal which hearings continued from time to time as late as on 25.05.2018 . The Revenue filed cross objection on 30-05-2018 which was filed 930 days late beyond time stipulated u/s 253(4) of the 1961 Act but no application praying for condonation of delay of 930 days in filing late this CO has been filed by Revenue . No affidavit has been filed and even no reasons for aforesaid delay whatsoever has been filed to justified and explain the causes of this delay of 930 days in filing CO late beyond the time stipula ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ate of 9% of turnover( before deducting remuneration to partners). The learned CIT(A) rejected books of accounts and Reliance has been placed on the decision of Hon'ble Supreme Court in the case of M/s.Kanchwala Gems v. JCIT reported in (2007) 158 taxman 71(SC) and it was submitted that reasonable estimation of profit be made @10% of turnover as against 15% as assessed by learned CIT(A). It was submitted that 8% profit is stipulated u/s. 44AD. He also relied upon page no. 80 /paper book wherein written submissions are placed. it was submitted that 9% profits were declared which can be enhanced to 10% . On the other hand learned DR relied upon the order of learned CIT(A) . 13. We have considered rival contention and perused the material on record including case laws relied upon. We have observed that the assessee is in the business of trenching and laying of cables . The assessee has done work of trenching and cable laying for Tata Teleservices (Maharashtra) Ltd. . The assessee paid labour charges to Mukadam to the tune of Rs. 1, 28, 93, 615/-. The assessee had claimed that payments towards labour charges were made through Mukadam to following parties as under:- Name Amount ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stantial justice instead rejected assessee's application filed u/r 46A of the 1962 Rules at threshold on technical grounds as in the opinion of learned CIT(A) no evidence to support justification for not filing evidence before the AO could be filed by the assessee. The assessee had on the other hand contended that it was due to illness of its partner incharge of taxation and accounts as well illness of the close relative of said partner, the details could not be furnished during assessment proceedings before the AO. The assessee has also submitted that its accountant left the organisation which was another reason for non production of details/evidences before the AO during assessment proceedings which was also disbelieved by learned CIT(A). Be it as may be but the fact remains that the assessee has claimed to have come forward with all the necessary evidences to justify its stand and corroborate that the expenses are bonafide, genuine and incurred wholly and exclusively for the purposes of its business. These evidences got discarded by learned CIT(A) on technical grounds and these evidences never saw day of light with respect to their evaluation/verifications on the touchstone of m ..... X X X X Extracts X X X X X X X X Extracts X X X X
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