IN THE INCOME TAX APPELLATE TRIBUNAL,
MUMBAI BENCH `A' BENCH
BEFORE SHRI G.E.VEERABHADRAPPA (PRESIDENT) AND
SHRI B.R.MITTAL (JUDICIAL MEMBER)
ITA No.375/Mum/2009
Assessment Year: 2005-06
ACIT 19(3), Ashoka Builders,
Room No.305, 3rd floor, 210/212, Veena Beena Turner Road,
Piramal Chambers, Parel, Bandra (W), Mumbai-50
Mmbai-12. Vs.
PAN; AABFA 3125 B
(Appellant) (Respondent)
Appellant by : Shri P.K.B.Menon
Respondent by: Shri Hari Raheja
Date of hearing: 4.7.2012
Date of pronouncement: 13. 7.2012
ORDER
Per B.R.Mittal, JM:
The department has filed this appeal for assessment year 2005-06 against order
dated 3.11.2008 of ld CIT(A), Mumbai on the following grounds:
"1) On the facts and in the circumstances of the case and in law, ld
CIT(A) erred in holding that the conditions for invoking the provisions of
Section 145(3) are not made out and consequential action of applying
12% as rate to estimate the income is also without any basis ignoring the
fact that;
a) in depth investigation was done during the course of assessment
proceedings and it was found that the assessee has not maintained
the books of account and debited bogus expenditure in its profit and
loss account.
b) Discrepancies in vouchers and books has not been taken into account
by the ld CIT(A).
c) The assessee did not produce the vouchers in support of expenditure
of Rs.3 crores.
d) The parties produced before him for examination are the created
parties for generation of cash, which is established by recording of
statement of various persons.
2 ITA No.375/Mum/2009
Assessment Year: 2005-06
e) Traveling expenditure claimed by the assessee was found to be bogus
and does not have any relation with the business need of the
assessee.
2) On the facts and circumstances of the case and in law, ld CIT(A)
erred in directing the AO to allow remuneration and interest to
partner ignoring the fact that the remuneration and interest to
partner was already considered as the AC adopted the net income of
the assessee at 12% of total receipts."
2. The relevant facts are that assessee is engaged in the business of construction
as a contractor. The assessee is registered with the PWD of Govt. of Maharashtra and
does government contracts. The assessee filed return of income declaring an income of
Rs.60,69,325 on a total construction receipt of Rs.20.09 crores.
3. During the course of assessment proceedings, Assessing Officer has stated that
the gross profit declared by the assessee is 20.65% and net profit is at 3.69%. He
stated on analysis of the expenditure claimed by the assessee that the major
expenditure has been shown against labour charges which is amounting to more than
37% of the total construction income received. The AO has stated that details of labour
expenditure submitted by the assessee in Schedule-J of the audit report are as follows:
Labour Amount
Labour contractors Rs.3,63,26,326.00
Sundry labour Rs.3,83,57,294.44
Rs.7,46,83,620.44
4. The assessee was asked during the course of assessment proceedings to
produce vouchers for labour expenses and books of ACcount. The accountant of the
assessee Ms Stella Monteiro produced the vouchers of the labour expenses. The AO
impounded the said vouchers and also recorded statement of accountant Ms Stella
Monteiro. During the course of her statement, she explained that the vouchers were
prepared at the site by the Site Engineers and, thereafter, the same were sent to office
3 ITA No.375/Mum/2009
Assessment Year: 2005-06
for accounting. The AO has stated that on analysis of impounded vouchers, the
vouchers impounded amounted to Rs.4,10,68,225 as against the claim of
Rs.7,46,83,620 under the head "labour charges". The AO stated that there was shortfall
of Rs.3,36,14,795 and concluded that the vouchers for the said amount did not exist.
Hence, the expenditure was inflated to that extent. The AO further stated that on
examination of the impounded vouchers, there was defects such as not being
numbered, signed, having addresses, etc. The AO concluded that the same were
fabricated. The AO also asked the assessee to produce all the persons to whom labour
expenses were made. The assessee produced 9 persons out of 15 contractors for
examination, details given at page 7 of the assessment order. The AO recorded the
statement of one of the contractor namely Mr Somanan Goud Nanagoud Kotikhani,
details given at pages 8 to 10 of the assessment order. He confirmed to have done
work with the assessee. However, the AO has stated that the said person Mr Somanan
Goud Nanagoud Kotikhani was initially working with the assessee and his bank account
shows the address of the assessee, all the receipts are from the assessee and since cash
was withdrawn from the bank after the deposit of cheque, he concluded that the
payment was not genuine.
5. Further, the AO has also stated that assessee claimed traveling expenditure of
Rs.19,32,687, details of expenditure given by the AO at pages 12 to 16 of the
assessment order. The AO also examined the partner of the assessee Shri Lachhman M
Rijhwani and recorded his statements, stated in para 16 at pages 16 to 19 of the
assessment order. The AO concluded that the claim of the assessee's expenditure to
foreign visit as a traveling expenditure is not genuine.
4 ITA No.375/Mum/2009
Assessment Year: 2005-06
6. In view of above, AO concluded that the assessee's books of account are not
reliable. Therefore, AO rejected books of account of the assessee under section 145(2)
of the I.T.Act, 1961 and estimated the income of the assessee at 12% of the total
contract receipts which comes to Rs.2,47,02,521. Being aggrieved, assessee filed
appeal before ld CIT(A).
7. On behalf of assessee, it was contended that the net profit of the assessee is
9.75% but the AO has wrongly shown at 3.69% after deducting interest and
remuneration to partners. It was contended that the labour charges consisted of
payment of sundry labour charges amounting to Rs.3,83,57,294, which was evidenced
mostly by vouchers and bills and payment to labour contractors amounting to
Rs.3,63,26,326 evidenced mostly by bills. That the vouchers relating to labour payment
made in cash were of Rs.1,38,84,260 and the balance payments were made by cheque.
It was contended that assessee submitted the statement of the accountant Ms Stella
Monteiro. That the contractors appeared before the AO with necessary proof of having
bank accounts and some even filing income tax returns. The observation of the AO that
expenses were inflated was baseless. It was further contended that the AO examined
one of the Contractor Mr Goud and doubted the genuineness of payment made to him
only because he was earlier an employee of the assessee. It was also contended that
Mr Goud was paid only a paltry sum of Rs.5,67,955. It was contended that the
observation of the AO of withdrawal of cash after the deposit of cheque does not have
merit because that person engaged casual labourers and they were required to be paid
cash only as they do not have bank accounts. It was contended that assessee had
undertaken work at various sites and engaged labour from contractors wherever
possible. The Site Engineers employed a lot of local casual unskilled labour at site. The
casual labourers are poor people who worked on daily basis and collect their labour
5 ITA No.375/Mum/2009
Assessment Year: 2005-06
charges in cash at the end of the day. On behalf of assessee, it was contended that 9
contractors appeared before the AO and confirmed that they had supplied labour to the
assessee for various sites and, therefore, casting aspersions by rejecting books of
account without bringing any specific material on record to show that the books of
account are not reliable or they do not show the real profit of the assessee is not
justified. It was also contended that the AO also estimated the income of the assessee
by not accepting genuineness of traveling expenditure that the assessee furnished
details of local and foreign traveling of the partners. It was contended that no family
members accompanied the partners and that by itself is sufficient to show that the
expenditures are for business purpose. It was also contended that the AO has arbitrarily
applied the rate of 12% on total construction receipts and there is no material to
support it.
8. Ld CIT (A) considered the above submissions of the assessee. He has stated
that the books of accounts are subjected to tax audit u/s.44AB of the Act. There is
nothing on record to suggest that the auditor while carrying out the tax audit had made
any adverse or qualified statements with respect to the genuineness of labour payments
which forms the key or core issue in this appeal. Ld CIT(A) has held that the AO has
not made out the case for invoking section 145(3) [wrongly mentioned sec. 145(2)] and
consequently action of applying 12% rate is also without any basis. Ld CIT(A) also
directed the AO to allow deduction for the interest payment and salary due to partners.
The reasons given by ld CIT(A) are in paras 4.3 to 4.8 of impugned order, which read as
under:
"4.3 The appellant is a builder and is registered as Class-I contractor with the
PWD of the Government of Maharashtra. The total construction receipts have
been declared as Rs.20.90 crores. In the immediately preceding year, it was
Rs.14.5 crores, thus there is a jump of 37% in the receipts turnover this year.
6 ITA No.375/Mum/2009
Assessment Year: 2005-06
The profit before tax is Rs.75.94 lakhs and the gross profit to turnover ratio is
20.65%.
The net profit ratio as per books is 9.75% but it been taken as 3.69% by the AO
after deducting interest and remuneration to partners.
4.4. The AO has focused on the labour charges as it constituted 37% of the
total construction expenses. The appellant has during the course of hearing
produced original labour vouchers and bills relating to sundry labour charges
amounting to Rs.3.83 Cr. (approx.) which were impounded. There were other
bills relating to labour contractors amounting to Rs.3.63 Cr. (approx.) which were
produced and verified by the inspector of the AO. Out of the entire labour
expenditure of Rs.7.46 Cr. (approx.) it is observed that cash payments amounted
to Rs. 1.38 Cr. (approx.) only. Thus labour paid by cash for which cash vouchers
were prepared amounted to 18% of the total payments. Out of these Rs. 1.38
Cr. cash payments through vouchers to labourers the total number of vouchers
where there is no signature are 65 only. (The same has been impounded by the
AO). Out of these 9 are supported by bills of Labour Contractors who have been
paid by cheque and so do not require any signature. The Labour Contractor in
turn has paid the same to the labourers and failed to obtain signature. The
balance 56 vouchers where there is no signature, the total value is of
Rs.1,04,1071- only. This figure in percentage terms constitute O.75% of the total
cash payments made through vouchers amounting to Rs.1.38 Cr. It is less than
even 1 % and it is quite possible in human probability not to obtain signature of
illiterate labourers on various sites on account of various reasons. The appellant
has prepared voucher for the same but it has failed to obtain the signature. The
amount is minor and in consequential if one 4ooks at the totality of the facts and
circumstances in this case.
4.5. The AO has questioned the genuineness of labour payments made through
cash vouchers. He has highlighted certain deficiencies in the cash vouchers
examined by him or his Inspector. The rejoinder to these discrepancies has been
given by the appellant and figures at Para 3.6, Page-7 of this appellate order.
The reason why the vouchers do not bear any address or signed is;
(a) They are casual labourers who come to site in search of work and
stay there till the have or get work.
(b) They live on the site in a temporary structures with their children and
cook in the open.
(c) They can not have any permanent home leave alone any address.
(d) The persons are poor illiterate and so at times are unable to sign.
The AO has failed to notice that all the vouchers have a noting of the site and
this itself is the entry in the Debit Column and all vouchers are marked after they
are entered in the accounting package and hence there was no need to number
them separately. The issue regarding absence of signature of the appellant is
clarified by the fact that there was no such column and the vouchers being
prepared at the site office and entered in the accounts there is no need for it.
Thus the appellant has furnished explanation which is credible and satisfactory.
Had the AO issued a show cause notice after his verification exercise was over
declaring his intention to make an estimate based on his version of facts then
7 ITA No.375/Mum/2009
Assessment Year: 2005-06
these issues could have been clarified by the appellant. It is observed that no
such opportunity was provided and the books of accounts rejected on the basis
of one sided findings without confronting the assessee.
The unilateral onerous exercise on the part of AO has also resulted in incorrect
tabulation of impounded Vouchers leading to discrepancies. Even the segregation
of cheque and cash payments appears to be incorrect. The correct tabulation as
worked out is as follows:
Narration No. of Vouchers Amount (Rs.)
Total labour payments made in 3320 1,38,260
cash at various sites
Total labour payments made in 2,44,71,009
cheque for various sites against
bills
Total payment made to labour 3,63,23,326
contrACtors by cheque against
bills
Total labour 7,46,81,595
charges
The total cash payments by way of vouchers is only Rs.1,38,84,260/- as against
the cheque payments of Rs.6,07,97,335/-. The appellant has made 3,320 cash
payments vouchers at various sites out of which about 58 vouchers are not
signed. This comes to 1.7% of the total vouchers so made. It is axiomatic that in
any Civil Construction work the use of manual labour will constitute the lion's
share of expenditure. The manual labour by its very nature will be made up of
illiterate poor people without any home and hearth. In fact the bulk would be
immigrants from other States who may have come in the commercial capital for
livelihood. The whole issue has to be examined in totality and minor
inconsequential discrepancies can not lead to rejection of audited books of
accounts. It is not fair and reasonable to resort to nitpicking involving labour
payments vouchers and jumping to the conclusion that it has been inflated as
has been done in this case.
4.6. It is further observed that the AO had asked the appellant to produce some
of the contractors on 19.12.2007 and within the span of three days i.e. on
22.12.2007, 9 contractors were produced. These contractors confirmed that they
had supplied labour to the appellant at various sites, their bank statements and
proof of being assessed to income-tax. The AO, however vide order sheet entry
dated 22.12.2007 directed to produce the rest of the contractors for examination
on 26.12.2007 25th being Christmas and a holiday) which could not be complied
with the order was passed on 28.12.2007.
The AO has recorded the statement of one labour contractor by the name
Somana Goud Nanagoud Kotikhani and impeached his independent credentials
as he had worked with the appellant prior to venturing out on his own as
8 ITA No.375/Mum/2009
Assessment Year: 2005-06
supplier of Labour force. His PAN as well as driving licence address is same as
that of Ashoka Builders. The analysis of his bank accounts revealed that it has
withdrawn cash after receiving the cheque payment from the appellant and thus
made the AO doubts it independent standing. Since no opportunity was given by
the AO to the appellant to clarify this point it was averred at the appellate stage
that he engaged casual labour and thus had to withdraw money from bank to
make payment to them in cash. It was also argued that there is nothing wrong in
moving out on one's own even if one had earlier worked with the appellant. It
was also added that the TDS has been done on all payments to the labour
contractor.
Thus it is seen from the above materials on record that though the AO has made
an attempt to treat this contactor has done labour contract work worth
Rs.5,67,955/- only as a dummy one but it has failed to bring enough material
evidence to establish the same. The person confirmed that he has done work for
the appellant at MIDC, Andheri and makes the bill which is submitted to site
Engineer. The payment to him is by cheque on which TDS has been done. There
is nothing on record to establish that the money has gone back to the appellant.
The cash payment made to the labourers is also vouched. As such no case of
collusive transaction is made out. The amount of contract work done by this
contractor is also very small (0.76%), if one looks at the total labour expenditure
of Rs,7.4 Cr.
4.7 The AO had examined one of the partners on the issue of whether the
traveling and exclusively for the purpose of business. After recording his
statement he was of the view that there is no correlation with business needs as
the partner has not been able to specify the name of the persons he met,
exhibition attended or machinery purchased.
The appellant has highlighted the fact that in none of its trips abroad any family
member or wife accompanied the partner which itself is a sufficient and strong
ground to show that it was for the purpose of business. It also said that visits to
foreign countries known for its high standard urban infrastructure like Hong
Kong, Malaysia led to increase of knowledge of recent technology in
construction. It also added that machinery has been purchased in later years
from abroad.
The facts and arguments on this point has been examined by me. The AO could
have disallowed certain percentage of foreign travel expenditure if he felt that it
had a personal element in it. But to make this as one of the grounds to reject the
books of accounts is too far fetched. Disallowance out of such expenses are
made regularly and routinely by the AOs but they cannot be taken as one of the
sufficient grounds to reject the audited books. In this case the fact that the
partner has made the visits on its own without any family member strengthen its
case for having incurred wholly and exclusively for the business. In any case it
can not be part of the reason for invoking Sec. 145(3) (wrongly mentioned
145(2) by the AC) of the I.T.Act, 1961.
4.8. The AO has invoked Sec. 145(2)[it should be 145(3)] on the above
mentioned grounds which are therefore held to be inadequate. It has further
gone to take 12% as rate to estimate its income. The basis on which this rate
9 ITA No.375/Mum/2009
Assessment Year: 2005-06
has been identified has not been mentioned. No comparable case has been
brought on record to establish this 12% rate is a reasonable and fair one. Even
under presumptive rate of taxation meant for small contractors having less than
Rs. 40 lakhs of turnover who do not maintain any books of accounts the rate is
8%. In fact such small contractors can show lower rate than 8% but then they
will have to maintain the books of accounts and get it audited.
The appellant is a Class-I contractor having a turnover of Rs.20,00,00,000/- and
is subject to compulsory audit. Its books profits are reasonable as generally
higher the turnover lower is the profit. The case of inflation of labour expenditure
has not been made out nor can the foreign traveling by the partner be treated as
Bogus. The conditions for invoking Sec. 145(3)[wrongly mentioned as 145(2)]
are not made out in this case. The consequential action of applying 12% rate is
also without any basis.
Thus taking all facts and circumstances as highlighted cumulatively the addition
so made is deleted. The AO is also directed to allow the deduction for the
interest and salary due to the partners as per the partnership deed in accordance
with the provisions of the I.T.Act."
10. Hence, department is in appeal before the Tribunal.
11. During the course of hearing, ld D.R. supported the action of Assessing Officer.
He produced some of the vouchers before us and stated that maintaining of vouchers
were defective as they do not contain requisite details for which payments were made
by the assessee as labour expenses. He submitted that for some of the vouchers no
details were given as to how much payments were made for labour and at what rate the
labour charges were paid. He submitted that assessee was not maintaining basic
details of payments, and hence, AO was justified to reject books of accounts of the
assessee and to apply estimated net profit rate of 12% on the total contract receipts.
12. On the other hand, ld A.R. made his submissions on the lines of submissions
made before ld CIT(A) and submitted that rejection of books of account by the AO was
based on presumptions and assumptions. He submitted that for the assessment year
under consideration, the net profit rate shown by the assessee is highest as compared
to the preceding assessment years. He submitted that AC has wrongly shown the net
profit at 3.69% but the actual net profit ratio is 9.75%. Ld A.R. submitted that the
10 ITA No.375/Mum/2009
Assessment Year: 2005-06
assessee produced original labour vouchers and bills relating to sundry labour charges
amounting to Rs 3,83,57,294/- which were impounded by him. He submitted that bills
relating to labour contractors amounting to Rs 3,63,26,326/- were produced before the
AC and the same were verified by the Inspector of the AO. He submitted that out of
total labour expenses of Rs. 7,46,83,620/-, cash payment is Rs.1,38,84,260 and the
balance payments of Rs. 6,07,97,225/- were by cheques only. He submitted that the
Assessing Officer asked the assessee to produce the contractors and the assessee
produced 9 contractors alongwith their bank statements and proof being assessed to
tax. He submitted that AO has doubted the payments to one of the contractors Shri
Somana Goud Nanagoud Kotikhian merely because he had worked with the assessee
prior to starting independent labour supplies. Ld A.R. further submitted that in respect
of vouchers produced before the AO and impounded by him, the total number of
vouchers where there is no signature or there was some defects were only 65. He
submitted that out of those 9 vouchers are supported by bills and labour contractors
who were paid by cheques and the balance 56 vouchers were of the total value of
Rs.1,04,107/- only which could not be assumed as a mode to inflate expenses. Ld A.R.
further submitted that the casual workers do not have any address and they are
illiterate. They live at the site with their children till the work is available. He submitted
that all the contractors confirmed that they had supplied labourers to the assessee for
the various sites and, therefore, the AO was not justified to reject books of account and
to estimate the profit rate. He submitted that some persons were paid in subsequent
years and no disallowance was made by the department. Ld A.R. further submitted that
the AO has gone on assumptions and presumptions even though the assessee is
following same method of accounting which has been accepted in preceding and
succeeding assessment years. He submitted that the order of ld CIT(A) is justifiable.
11 ITA No.375/Mum/2009
Assessment Year: 2005-06
13. We have carefully considered the orders of authorities below and submissions of
learned representatives of parties. We also perused one of the files containing vouchers
which was produced by ld D.R. at the time of hearing. During the course of hearing, ld
D.R. submitted that the vouchers do not contain requisite details of the rate at which
the labour payments were made nor some of the vouchers contains details as to how
many days the labour payment was made. Therefore, the vouchers were not reliable.
However, Ld D.R. has not disputed the contention of assessee that there were only 65
vouchers which did not bear the requisite details/signatures and out of which 9 vouchers
were supported by bills of contractors against whom payments were made by cheques.
Ld A.R. categorically contended that out of the labour expenses of Rs.7,46,81,595, the
total cash payment is only Rs.1,38,84,260 and the balance payment of Rs.6,07,97,335
was made by cheques. We observe that assessee was working at 21 sites during the
year. We observe that the total contract receipt is Rs. 20.09 crores. It is a fact that for
carrying out construction activity, most of the employed labourers are unskilled and
illiterate. They do not have any permanent address. They also do not have bank
accounts and the payments are to be made to them in cash at the end of the day.
Therefore, in respect of that payment, it could not be accepted to prepare the vouchers
in scientific way containing their addresses, signatures/other details, etc. During the
course of hearing, ld A.R. produced a chart before us giving the gross annual turnover,
net profit rate from assessment years 2000-2001 to 2004-05 and we find that the net
profit declared by the assessee for the assessment year under consideration is highest.
We observe that ld CIT(A) has also taken into account the above aspect and considering
the same, he has stated that AO has failed to notice all the vouchers have a noting of
the site and this itself is the entry in the Debit Column and all vouchers are marked after
they are entered in the accounting package and hence there was no need to number
them separately. We observe that the assessee has furnished explanation in respect of
12 ITA No.375/Mum/2009
Assessment Year: 2005-06
deficiencies pointed out by the AO in respect of vouchers maintained by the assessee
and the explanation furnished by the assessee is satisfactory. We agree with ld CIT(A)
that issue of discrepancy in the vouchers as pointed out by the AO is inconsequential if
the same is considered in totality and, accordingly, we agree with ld CIT(A) that
rejection of audited books of account on the above details given by AO is not justifiable.
We observe that one of the reasons given by AO for rejecting the books of account is
the traveling expenditure debited by the assessee. We observe that the assessee gave
the details of the expenditure incurred, break-up of which has been given by the AO at
pages 12 to 16 of assessment order itself. The assessee gave explanation before the
AO and also reiterated before ld CIT(A) that visits to foreign country were made to
know for its high standard urban infrastructure like Hong Kong, Malaysia which led to
increase of knowledge of recent technology in construction. Further, the machinery was
purchased from abroad in the later years and the said fact was not disputed by ld D.R.
at the time of hearing of the appeal though this was specifically contended by ld A.R.
and reliance has strongly been placed by ld CIT(A) while reversing the findings of AO.
We are of the considered view that in view of above facts, ld CIT(A) has rightly stated
that the AO was not justified to invoke the provisions of section 145(3) of the Act and to
reject books of account of the assessee. Not only this, the AO while applying net profit
rate of 12% of the contract receipts has also not given any justification. It has been
held by Hon'ble Apex Court in the case of Brij Bhushan Lal Parduman Kumar v.
Commissioner of Income-tax, 115 ITR 524 that even in the case of best
judgment assessment, the same has to be done on reasonable basis and it
should not be vindictively or capriciously. The Hon'ble Calcutta High Court has
also held in the case of Commissioner of Income-tax v. Ranicherra Tea Co.
Ltd., 207 ITR 979 that the AO in making best judgment assessment does not
13 ITA No.375/Mum/2009
Assessment Year: 2005-06
possess absolute arbitrary authority to assess any figure he likes. During the course of
hearing, as mentioned hereinabove, ld A.R. contended that net profit declared by the
assessee in the assessment year under consideration, is highest as compared to
preceding assessment years. Therefore, we are of the considered view that ld CIT(A) is
justified to hold that the AO applied 12% net profit rate of the contract receipts without
any basis. Considering the facts of the case and in the light of above discussion, we
hold that there is no infirmity in the order of ld CIT(A). Hence, we uphold his order and
reject grounds of appeal taken by the department.
14. In the result, appeal filed by department is dismissed.
Pronounced in the open court on 13th July , 2012
Sd/- Sd/-
(G.E.VEERABHADRAPPA) (B.R. MITTAL)
PRESIDENT Judicial Member
Mumbai, Dated 13th July , 2012
Parida
Copy to:
1. The appellant
2. The respondent
3. Commissioner of Income Tax (Appeals),XIX, Mumbai
4. Commissioner of Income Tax, City X , Mumbai
5. Departmental Representative, Bench `A' Mumbai
//TRUE COPY// BY ORDER
ASSTT. REGISTRAR, ITAT, MUMBAI
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