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TMI Blog2016 (2) TMI 1378X X X X Extracts X X X X X X X X Extracts X X X X ..... under the facts and circumstances of the case, the tribunal was right in law in restricting the addition to 1.6% in respect of an expenditure which is of such nature as covered by section 37(1) of the income tax Act, 1961? 2. Whether under the facts and circumstances of the case, the tribunal right in law in restricting the addition to 1.6% in respect of wages instead of 10.3% and 6.6% adopted by the assessing authority respectively for the Assessment Years 2002- 03 and 2003-04, when the onus to prove the genuineness of expenditure claimed has not been discharged by the assessee"? 2. We have heard Mr. E.I. Sanmathi, learned Counsel for the Appellants - Revenue and Ms. Jinita Chatterjee, learned Counsel appearing for the Respondent. 3. W ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on in accordance with law. 5. In view of the above, one of the vital basis for the decision of the Tribunal in the impugned Order was its earlier view in ITA No.947/Bang/2008 dated 30.04.2009 and when this Court has by the aforesaid Judgment in ITA No.450/2009 has set aside the said order of the Tribunal and has remanded the matter, we find that similar course deserves to be adopted even in the present matter. 6. We may record that this Court in the above referred decision in ITA No.450/2009, had observed thus: "This appeal is filed by the Revenue questioning the order dated 30.4.2009 passed by the Income Tax Appellate Tribunal, Bangalore Bench 'A' in ITA No.947/Bang/08 (Assessment year 2004-05). The appellants have prayed for co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... relates to payment through cheque to the NMPT Union and sub-contractors. However, the Assessing Officer has disallowed the claim of the assessee to the extent of 20% in respect of cash payment to gang leaders as mentioned supra, which means the Assessing Authority allowed the claim of the assessee to the extent of 80%. Questioning the order passed by the Assessing Authority, the assessee filed appeal No.ITA/174/ CIT(A)/MNG/2006-07 before the Appellate Commissioner under Section 246 of the Income Tax Act ('the Act' for short). The Appellate Commissioner while adjudicating the appeal issued show cause notice under Section 251(2) of the Act for enhancement of tax liability. After hearing both the parties, the Appellate Commissioner en ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fficer also came to be examined. It came to be noticed by the Appellate Commissioner that all the subcontractors have stated that they have carried loading and unloading work at the port for the assessee by engaging private labour and they have further confirmed the bill. All these labour contractors are assessed to tax and they have filed returns belatedly declaring the above labour contract proceeds and offered income to tax under Section 44-AD of the Act. However the Appellate Commissioner, on facts has found that the vouchers issued to the sub-contractors and payments made to them are highly suspicious in nature. The details collected from the assessee were made available to the Financial Advisor and Chief Accounts Officer, NMPT, Mangal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... case on hand in respect of 18 sub-contractors. It is also borne out from the records that the sub-contractors have not maintained any list of accounts in respect of labour contract works of the assessee. They have not maintained any records regarding the labourers engaged, the details like names and addresses of the workers etc., and the same are not available with the subcontractors. Even the list of accounts and other details are not available to know the total number of labourers engaged etc., It is also admitted by the sub-contractors that they have not maintained any records to show as to how much payments were made to the labourers. It is further admitted before the Assessing Officer that they have not maintained any evidence like vou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sum of Rs. 2,70,70,745/- which was allowed by the Assessing Officer. 7. The Appellate Tribunal while deciding the appeal, has casually proceeded to sustain the order passed by the Assessing Officer. None of the major points decided by the Appellate Commissioner are answered by the Tribunal while setting aside the order passed by the Appellate Commissioner. Though the order passed by the Tribunal runs to number of pages, the crux of the matter is not adverted to by the Tribunal while arriving at the conclusion. On careful perusal of the order passed by the Tribunal, we are of the opinion that the order of the Tribunal cannot be sustained inasmuch as the Tribunal has not applied its mind judiciously to the facts and circumstances of the cas ..... X X X X Extracts X X X X X X X X Extracts X X X X
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