TMI Blog2018 (12) TMI 827X X X X Extracts X X X X X X X X Extracts X X X X ..... demonstrate the factual matrix on merits to take it out of clutches of provisions of Section 194J. The AO shall adjudicate this issue afresh on merits. Addition u/s 43B - Non-payment of services tax as claimed was paid after the due date of filing of return of income u/s 139(1), which fell on 30th September 2012 - Held that:- The assessee fairly admitted before us that this disallowance is to be upheld, keeping in view that there is an infringement of Section 43B as admitted by the assessee in paying the service tax late beyond the due date of filing of return of income as prescribed u/s 139(1) , we uphold the aforesaid disallowance. Addition of labour payments - Held that:- AO disbelieved the contentions of the assessee that it physically carried huge cash from Maharashtra to Jharsuguda, Orissa for making payments to labour , but the facts also remains that the assessee has got contract from Vedanta Aluminium Ltd. industrial unit at Jharsuguda (Orissa) for which it is stated by the assessee that it engaged local labour and its turnover increased - AO on its part only disallowed 30% of labour payments while rest stood allowed despite the fact that the AO doubted genuineness ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 58145 15.12.2011 20.12.2011 67753 15.01.2012 16.01.2012 62446 15.04.2012 17.04.2012 68109 15.12.2011 20.12.2011 64780 15.01.2012 16.01.2012 53211 15,04.2012 17.04.2012 28758 21.04.2012 25.04.2012 4,60,464 ESIC (Jharsuguda division): Amount (Rs.) Due date Date of payment 17359 21.12.2011 11.05.2012 16523 21.01.2012 11.05.2012 15707 21.02.2012 11.05.2012 13180 21.03.2012 11.05.2012 13572 21.04.2012 11.05.2012 763 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Mst. Rishaan Liladhar Pansania for the period 02-02-2016 to 13-07-2018 and contentions are made that accountants son was suffering from blood cancer. The relevant medical documents are enclosed and placed in file. It is claimed that due to medical disturbances in the family of the accountant of the assessee, it prevented assessee s AR to appear before the Ld. CIT(A) and also in late filing of the appeal before the tribunal. It is claimed that appeal by learned CIT(A) was disposed of ex-parte as the assessee could not enter appearance due to medical disturbances in the family of accountant of the assessee and the appeal of the assessee stood dismissed ex-parte by learned CIT(A). It is also explained that the appeal was filed late with the tribunal due to above cited reasons late by 93 days beyond time stipulated u/s 253(5) of the 1961 Act. It was prayed that delay in filing this appeal late with the tribunal be condoned . Keeping in view the entire factual matrix and bonafide exigency shown by the assessee by way of heart ailment of accountant and blood cancer of his son supported by medical documents which in our considered view was a sufficient cause which prevented assessee fr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3. The second disallowance concern itself with disallowance of professional fee paid of ₹ 23340/- on the grounds that income tax deducted at source of ₹ 2,334/- u/s 194J of the 1961 Act was not deposited by the assessee, keeping in view provision of section 40(a)(ia) of the 1961 Act. The assessee has contended that the limit of non deduction of income-tax at source u/s. 194J during the relevant period was ₹ 30,000/- for each payee during the entire year and since the payment of professional fees was made to the tune of ₹ 23,340/- , income tax was deducted wrongly at source while no such TDS ought to have been deducted by the assessee as the said amount was lower than the threshold limit as prescribed u/s 194J of the 1961 Act. We have observed that the total professional fees paid by the assessee was ₹ 62,250/- during the year under consideration. However, as per facts emanating from records as are available in the file before us , it is not clear that who were the payees to whom the assessee had made payment of ₹ 23,340/- on which income-tax was deducted at source u/s 194J of the 1961 Act. It is equally not available on record , the break-u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an amount of ₹ 1,30,86,113/- was outstanding salary and wages payable for Jharsuguda (Orissa) . The AO also observed that huge amount of labour payments were paid in the month of March for Jharsuguda and payments were made in cash. The AO observed that only ₹ 40 lacs cash was withdrawn from Jharsuguda (Orissa) branch while it was observed by the AO that the cash was withdrawn from branches in Maharashtra and it is claimed by the assessee that cash was carried personally to Jharsuguda (Orissa) from Maharashtra which contention of the assessee was rejected by the AO. The AO also observed that large amount of labour charges were booked in the month of March and name s of labourer , their addresses and ID s were not produced . The AO disallowed 30% of the outstanding salary and labour payments i.e. 30% of ₹ 1,44,87,840/- which comes to ₹ 43,46,352/- , vide assessment order dated 31.03.2015 passed by the AO u/s 143(3) of the 1961 Act. The assessee carried the matter in appeal before Ld. CIT(A) which stood dismissed by learned CIT(A) as there was non-appearance of the assessee before the Ld. CIT(A), vide appellate order dated 15.12.2016 passed by learned CI ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the AO as the assessee could not justify these expenses with labourers names, Id s and addresses etc. . At the same time , the assessee has only withdrawn ₹ 40,00,000/- from Jharsuguda (Orissa) bank branches , while rest of the withdrawal was done from bank branches in Maharashtra. The AO disbelieved the contentions of the assessee that it physically carried huge cash from Maharashtra to Jharsuguda, Orissa for making payments to labour , but the facts also remains that the assessee has got contract from Vedanta Aluminium Ltd. industrial unit at Jharsuguda (Orissa) for which it is stated by the assessee that it engaged local labour and its turnover increased . The AO on its part only disallowed 30% of labour payments while rest stood allowed despite the fact that the AO doubted genuineness of these labour payments. The assessee has also claimed that its turnover had increased but profit ratio fell in this year comparative to preceding year. In our considered view and in all fairness to both the parties, the assessee deserve one more opportunity as the appellate order of the learned CIT(A) was also an ex-parte order , for whatever reasons the assessee could not avail an oppo ..... X X X X Extracts X X X X X X X X Extracts X X X X
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