The Commissioner Of Income Tax v. M/S Construction Engineer, 54, Industrial Estate, Barzulla, Sgr

Serial No. 6 Final Hearing HIGH COURT OF JAMMU AND KASHMIR AT SRINAGAR ITA No. 03/2013 c/w ITA No. 02/2013 Date of Order: 1[st] Aug. 2017 The Commissioner of Income Tax Vs. M/s construction Engineer, 54, Industrial Estate, Barzulla, Sgr. Coram: Hon’ble Mr Justice Badar Durrez Ahmed, Chief Justice Hon’ble Mr Justice Ali Mohammad Magrey, Judge Appearing counsel: 1. The present appeals are directed against the common order dated 15.10.2012 passed by the Income Tax Appellate Tribunal, Amritsar Bench at Amritsar in respect of assessment year 2008-2009. ITA No. 02/2013 is in respect of ITA No. 102(Asr)/2012 which was an appeal filed by the assessee before the tribunal. ITA No. 03/2013 is in respect of ITA 127(Asr)/2012 which was an appeal preferred by the department before the tribunal. 2. On 03.07.2013, when the present appeals were admitted to hearing, the following substantial questions of law were framed for consideration of this Court:- i) Whether in the facts and circumstances and in law, the Hon’ble ITAT was justified in law, the Hon’ble ITAT was justified in sustaining the addition of Rs. 4,00,000/- only out of Rs. 46,84,809/- with regard to material consumed when there was no supporting bills/vouchers? ii) Whether the findings of the Hon’ble ITAT as regards the bills of sand, dust and Bajri etc. were submitted and payments made to various persons were available with the Assessing Officer is justified when the same is contrary to records and own admission of assessee that he has not produced the bills/vouchers neither before the Assessing Officer during assessment proceedings nor during Appellate before the Hon’ble ITAT? regards the bills of sand, dust and Bajri etc. were submitted and payments made to various persons were available with the Assessing Officer is justified when the same is contrary to records and own admission of assessee that he has not produced the bills/vouchers neither before the Assessing Officer during assessment proceedings nor during Appellate before the Hon’ble ITAT? iii) Whether in the facts and circumstances and in law, the Hon’ble ITAT was justified in sustaining the addition of Rs. 4,00,000/- only out of Rs. 17,55,312/- with regard to site expenses without giving reasons especially when there was no supporting bills/vouchers? law, the Hon’ble ITAT was justified in sustaining the addition of Rs. 4,00,000/- only out of Rs. 17,55,312/- with regard to site expenses without giving reasons especially when there was no supporting bills/vouchers? iv) Whether in the facts and circumstances and in law, the Hon’ble ITAT was justified in deleting the addition of Rs. 24,11,260/- under the head labour expenses when the nature of payments made in cash and were not verifiable? law, the Hon’ble ITAT was justified in deleting the addition of Rs. 24,11,260/- under the head labour expenses when the nature of payments made in cash and were not verifiable? 3. In that order itself, it was however recorded that it will be open for the assessee to argue that no substantial question of law had arisen. That is exactly what the learned counsel for the assessee has done before us. 4. If one goes to examine the four questions, it would become immediately clear that questions (i) and (ii) deal with the same subject matter, that is, materials consumed (sand, dust, bajri etc.,) and, therefore, we shall deal with these two questions together. 5. Question No. (iii) pertains to the issue of Site Expenses and question No. (iv) deals with Labour Expenses. Question Nos. (i) and (ii). 3. In that order itself, it was however recorded that it will be open for the assessee to argue that no substantial question of law had arisen. That is exactly what the learned counsel for the assessee has done before us. 4. If one goes to examine the four questions, it would become immediately clear that questions (i) and (ii) deal with the same subject matter, that is, materials consumed (sand, dust, bajri etc.,) and, therefore, we shall deal with these two questions together. 5. Question No. (iii) pertains to the issue of Site Expenses and question No. (iv) deals with Labour Expenses. Question Nos. (i) and (ii). 6. We shall first take up question Nos. (i) and (ii). The Assessing Officer made an addition of Rs. 46,84,809/- under the head of materials consumed in respect of sand, dust and bajri for which no supporting bills/vouchers were presented by the assessee. It would be pertinent to note that under the head ‘materials consumed’, the assessee had debited Rs. 16,32,99,362/-. It is further pertinent to note that the total expenditure on sand, dust and bajri was to the tune of Rs. 2,02,11,961/- as per the details submitted by the assessee to the Assessing Officer. Out of this amount, there were no supporting bills/vouchers in respect of an amount of Rs. 46,84,809/- and to that extent, the Assessing Officer made a disallowance and added back the said amount to the income of the assessee. The Commissioner of Income Tax (Appeals) reduced the addition to Rs. 9,36,962/- which was further reduced by the tribunal to Rs. 4.00 lacs. The learned counsel for the revenue submits that there was absolutely no basis for the CIT(A) or the tribunal to have reduced the disallowance from Rs. 46,84,809/- to Rs. 9,36,962/- and ultimately to Rs. 4.00 lacs. He drew our attention to paragraph No. 6 at internal page 5 of the impugned order which reads as under:- “6. We have heard the rival contentions and perused the facts of the case. As regards the material consumed, the assessee has submitted all the bills and vouchers. As regards the bills of Sand, Dust and Bazri, etc., all the details were submitted. The payments made to various persons with regard to Sand, perused the facts of the case. As regards the material consumed, the assessee has submitted all the bills and vouchers. As regards the bills of Sand, Dust and Bazri, etc., all the details were submitted. The payments made to various persons with regard to Sand, Dust and Bazri, were available with the A.O. which actually have not been considered in right spirit. The Ld. CIT(A) is not justified in retaining the disallowance @ 20% of the claim of the assessee, which appears to be excessive keeping in view the non-maintenance of bills of Sand, Dust and Bazri and to meet both ends of justice, the addition of Rs. 4 lacs will be justified and the A.O. is directed to sustain an addition of Rs. 4 lacs on account of material consumed.” 7. In the above extracted paragraph, it has been indicated that as regards the bills of sand, dust and bajri etc., all the details were submitted. It is further indicated that payments made to various persons with regard to sand, dust and bajri were available with the Assessing Officer which had not been considered in the right spirit. The disallowance to the extent of 20% by CIT(A) was in the view of the tribunal excessive and the tribunal limited the same to Rs. 4.00 lacs which according to the tribunal appeared to be justified. The learned counsel for the revenue submitted that the finding of the tribunal is not supported by any material on record. As per the assessment order, it is evident that no supporting bills/vouchers etc., had been submitted in respect of sand, dust and bajri to the extent of Rs. 46,84,809/-. The learned counsel for the assessee submitted that the fact that the assessee was a big contractor and had constructed the buildings was sufficient to indicate that sand, dust and bajri had been consumed and, therefore, the disallowance by the Assessing Officer and the CIT(A) was not justifiable. 8. Upon considering the submissions of the counsel for the parties, it is evident and an admitted position that in respect of expenses to the tune of Rs. 46,84,809/- no supporting bills/vouchers or any other evidence was submitted by the assessee. In fact the claim of the assessee was that some amount has to be regarded as having been spent on sand, dust and bajri in a building contract and that the Assessing Officer could not have made disallowance of the entire amount claimed. But, we are afraid, this argument has no factual basis for the reason that the total amount claimed to have been spent on sand, dust and bajri was Rs. 2,02,11,961/-. However, out of that amount, supporting evidence in the form of bills/vouchers were not available for an amount of Rs. 46,84,809/- and it is that which has been disallowed by the Assessing Officer and added back to the income of the assessee. Therefore, we are in agreement with the learned counsel for the revenue that the finding of the tribunal in limiting the disallowance to Rs. 4.00 lacs has no basis at all and there is no evidence to back the same. 9. Consequently, the question Nos. (i) and (ii) are decided in favour of the revenue and against the assessee. Question No. (iii). 10. Insofar as the question No. (iii)is concerned, the same relates to Site Expenses. The Assessing Officer added Rs. 17,55,312/- to the income of the assessee on account of alleged site expenses which were not supported by any ITA No. 03/2013 and ITA No. 02/2013 Page 5 of 8 bills/vouchers etc. It may be pointed out that the total amount claimed under the head ‘site expenses’ was Rs. 87,76,558/- and that for this entire amount of Rs. 87,76,558/-, no bill or voucher had been submitted by way of supporting evidence. The Assessing Officer, however, did not disallow the entire amount, but, limited the disallowance to 20% which worked out to Rs. 17,55,312/- and the same was added back to the income of the assessee. The CIT(A) reduced the disallowance to 10%, that is, Rs. 8,77,656/-. The said CIT(A) noted the arguments on behalf of the assessee that the disallowance made by the Assessing Officer was excessive and also noted the fact that there was no denying that such expenditure must have been incurred in building contracts. The said CIT(A) held that no specific reasons were mentioned by the Assessing Officer while making the general disallowance of 20%. The said CIT(A) reduced the disallowance to 10%. 11. When the matter was before the tribunal, the tribunal observed as under:- “6.2. As regards the site expenses, the assessee has submitted all the details, but in fact, no vouchers have been maintained. The assessee has submitted the explanation which is with regard to the welfare of the labour where the turnover is more than Rs. 30 crores and keeping in view the size of the business and past history of the case, the disallowance retained by the ld. CIT(A) appears to be excessive and therefore, it will be in the interest of justice if an addition of Rs. 4 lacs is sustained. The AO is directed accordingly.” has submitted all the details, but in fact, no vouchers have been maintained. The assessee has submitted the explanation which is with regard to the welfare of the labour where the turnover is more than Rs. 30 crores and keeping in view the size of the business and past history of the case, the disallowance retained by the ld. CIT(A) appears to be excessive and therefore, it will be in the interest of justice if an addition of Rs. 4 lacs is sustained. The AO is directed accordingly.” 12. It will be evident from the above narration on facts that all the authorities below recognized the fact that expenditure in respect of site expenses has to be allowed though not in toto. The disallowance by all the three authorities has been based on their respective estimates. Since the tribunal is the final fact finding authority, we have nothing before us to challenge the estimation of the tribunal by restricting the addition to Rs. 4.00 lacs. In fact, we agree with the learned counsel for the assessee that this question is purely one of fact and is not a substantial question of law. Consequently, the finding of fact returned by the Tribunal would stand. Question No. (iv). 13. Now coming to the last question No. (iv) which relates to labour expenses. The Assessing Officer had added Rs. 24,11,260/- on account of alleged non-verifiable labour expenses made in cash. CIT(A) confirmed the said addition, however, the tribunal deleted the said addition. From the impugned order, it appears that the tribunal was impressed by the fact that the muster roll which had all the details of the labour and payments had been produced and there was no dispute with regard to the same. Therefore, the Assessing Officer, according to the tribunal, was not justified in making any addition without pointing out any defect in the same. We may point out that the assessee had debited an amount of Rs. 4,82,25,191/- under labour expenses and the Assessing Officer had made a disallowance of 5% thereon amounting to Rs. 24,11,260/- which was confirmed by the CIT(A). The reasoning adopted by the Assessing Officer was that as the genuineness of payments to the aforesaid extent could not be ascertained, therefore, he considered it appropriate to disallow 5% of the expenditure as the same was made in cash and were not “properly verifiable”. However, the tribunal being the final fact finding authority has taken the stand that the muster roll which contained all the details of the labour and the payments made had not been rejected by the Assessing Officer and, therefore, no disallowance could be made on this account. 14. We do not find any infirmity in the decision of the tribunal. Consequently, question No. (iv) is decided in favour of the assessee and against the revenue. 15. In view of the foregoing, both the appeals are partly allowed as above. (Ali Mohammad Magrey) (Badar Durrez Ahmed) Judge Chief Justice Srinagar 1[st] Aug. 2017 Altaf