ACIT, Circle, Barmer V. M/s. Mahaveer Infra Engineering Pvt. Ltd. , Mumbai.

ITA 186/JODH/2018

• Counselvise Citation: [2020] 109 COUNSELVISE.COM (IT) 9705 (ITAT-JODHPUR)
• Duration Of Justice: 2 year(s) 7 month(s) 26 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 21-12-2020
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Assessment Year: 2014-2015
• Appeal Filed On: 25-04-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: K C BADHOK LD
• Assessee Lawyers: RAKSHA BIRLACALD ARS
• Keywords: Unexplained cash credit; Unexplained expenditure; Business expenditure; Principle of natural justice; Opportunity of cross examination; Third party statement; TDS; FORM 26AS
• Section: 69C; 143(3); 40(a)(ia); 133(6); 13; 154; 15; 68

Judgement Text

1 M/S. MAHAVEER INFRA ENGINEERING PRIVATE LIMITED ASSESSMENT YEARS: 2014-15 & 2015-16 IN THE INCOME TAX APPELLATE TRIBUNAL JODHPUR BENCH, JODHPUR , , BEFORE HONBLE SHRI SANDEEP GOSAIN, JM AND HONBLE SHRI MANOJ KUMAR AGGARWAL, AM (HEARING THROUGH VIDEO CONFERENCING MODE) 1. ./ I.T.A. NO.186/JODH/2018 ( / ASSESSMENT YEAR: 2014-15) & 2. ./ I.T.A. NO.212/JODH/2019 ( / ASSESSMENT YEAR: 2015-16) ACIT CIRCLE AAYKAR BHAVAN MAHAVEER NAGAR, BARMER RAJASTHAN / VS. M/S. MAHAVEER INFRA ENGINEERING PVT. LTD. E-109, ANSA INDUSTRIAL ESTATE, SAKI VIHAR ROAD, SAKI NAKA, ANDHERI (EAST) MUMBAI-400 072 ./ ./PAN/GIR NO. AAFCM-8521-Q ( /APPELLANT ) : ( / RESPONDENT ) & 3. ./ I.T.A. NO.222/JODH/2019 ( / ASSESSMENT YEAR: 2015-16) & 4. C.O. NO.18/JODH/2019 (ARISING OUT OF ITA NO.186/JODH/2018) ( / ASSESSMENT YEAR: 2014-15) M/S. MAHAVEER INFRA ENGINEERING PVT. LT D. E-109, ANSA INDUSTRIAL ESTATE, SAKI VIHAR ROAD, SAKI NAKA, ANDHERI (EAST) MUMBAI-400 072 / VS. ACIT CIRCLE AAYKAR BHAVAN MAHAVEER NAGAR, BARMER RAJASTHAN ./ ./PAN/GIR NO. AAFCM-8521-Q ( /APPELLANT ) : ( / RESPONDENT ) ASSESSEE BY : SHRI RAJENDRA JAIN (ADVOCATE) & MS. RAKSHA BIRLA (CA)-LD.ARS REVENUE BY : SHRI K.C. BADHOK- LD. CIT- DR / DATE OF HEARING : 02/11/2020 2 M/S. MAHAVEER INFRA ENGINEERING PRIVATE LIMITED ASSESSMENT YEARS: 2014-15 & 2015-16 / DATE OF PRONOUNCEMENT : 21/12/2020 / O R D E R MANOJ KUMAR AGGARWAL (ACCOUNTANT MEMBER): - 1.1 THE REVENUE IS UNDER APPEAL FOR ASSESSMENT YEAR S (AY) 2014-15 & 2015-16 AGAINST SEPARATE APPELLATE ORDERS . THE ASSESSEE IS ALSO IN APPEAL FOR AY 2015-16 WHEREAS I T HAS PREFERRED CROSS-OBJECTIONS FOR AY 2014-15. 1.2 FACTS AS WELL AS ISSUES ARE STATED TO BE IDENTI CAL IN BOTH THE YEARS AND THEREFORE, THE APPEALS AS WELL AS CROSS-O BJECTION ARE BEING DISPOSED-OFF BY WAY OF THIS COMMON ORDER FOR THE SAKE OF CONVENIENCE & BREVITY. FIRST, WE TAKE UP REVENUES APPEAL AS WELL AS CROSS-OBJECTIONS FOR AY 2014-15 WHICH IS AGAINST THE ORDER DATED 09/01/2018 PASSED BY LD. COMMISSIONER OF INCOME-TAX (APPEALS)- 2, JODHPUR, [IN SHORT REFERRED TO AS CIT(A)], APPEAL NO.212/2016- 17. 1.3 THE GROUNDS RAISED BY THE REVENUE READ AS UNDER :- 1. WHETHER, ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD. CIT(A)-2, JODHPUR WAS JUSTIFIED IN DELETING THE ADD ITION OF RS.14,30,32,450/- MADE U/S 68 ON ACCOUNT OF UNEXPLAINED CREDITORS, IGNORIN G THE FACT THAT DURING ASSESSMENT PROCEEDINGS THE ASSESSEE FAILED TO PRODUCE CONFIRMA TION OF UNSECURED LOAN AND LETTERS ISSUED U/S 133(6) TO THE CREDITORS AT THEIR ADDRESSES PROVIDED BY THE ASSESSEE WERE RECEIVED BACK UN-SERVED. 2. WHETHER, ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD. CIT(A)-2, JODHPUR WAS JUSTIFIED IN DELETING THE ADD ITION OF RS. 5,76,00,000/- MADE ON ACCOUNT OF UNEXPLAINED UNSECURED LOAN CREDITORS, IG NORING THE FACT THAT DURING ASSESSMENT PROCEEDINGS THE ASSESSEE FAILED TO PRODU CE CONFIRMATION OF UNSECURED LOAN AND LETTERS ISSUED U/S 133(6) TO THE CREDITORS AT THEIR ADDRESSES PROVIDED BY THE ASSESSEE WERE RECEIVED BACK UN-SERVED. 3. WHETHER, ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD. CIT(A)-2, JODHPUR WAS JUSTIFIED IN DELETING THE ADD ITION OF RS.13,10,343/- MADE ON ACCOUNT OF UNRECORDED RECEIPTS DISCREPANCIES OF 26A S, IGNORING THE FACT THAT DURING 3 M/S. MAHAVEER INFRA ENGINEERING PRIVATE LIMITED ASSESSMENT YEARS: 2014-15 & 2015-16 THE COURSE OF ASSESSMENT PROCEEDINGS THE ASSESSEE C OULD NOT EXPLAIN THE DISCREPANCIES. 4. WHETHER, ON THE FACTS AND IN THE CIRCUMSTANCES O F THE CASE AND IN LAW, THE LD. CIT (A)-2, JODHPUR WAS JUSTIFIED IN RESTRICTING THE DIS ALLOWANCE TO 5% AS AGAINST 25% DISALLOWED BY THE AO ON ACCOUNT OF DISPROPORTIONATE RISE IN EXPENSES, IGNORING THE FACT THAT DURING THE ASSESSMENT PROCEEDINGS THE ASS ESSEE FAILED TO EXPLAIN / PRODUCE COMPLETE BILLS / VOUCHERS OF THESE EXPENSES AND ALS O NOT FURNISHED SITE-WISE DETAILS OF MATERIAL OR OTHER CONSUMABLES. 5. WHETHER, ON THE FACTS AND IN THE CIRCUMSTANCES O F THE CASE AND IN LAW, THE LD. CIT (A)-2, JODHPUR WAS JUSTIFIED IN RESTRICTING THE DIS ALLOWANCE TO 5% AS AGAINST 10% DISALLOWED BY THE AO ON ACCOUNT OF UN-VOUCHED / UNV ERIFIABLE EXPENSES, IGNORING THE FACT THAT DURING THE ASSESSMENT PROCEEDINGS THE ASS ESSEE FAILED TO EXPLAIN / PRODUCE THE COMPLETE BILLS / VOUCHERS OF THESE EXPENSES AND THESE PAYMENTS WERE MADE IN CASH. 6. WHETHER, ON THE FACTS AND IN THE CIRCUMSTANCES O F THE CASE AND IN LAW, THE LD, CIT (A)-2, JODHPUR WAS JUSTIFIED IN DELETING THE ADDITI ON OF RS.82,49,484/- MADE ON ACCOUNT OF NOT SHOWING COMMISSION INCOME ON SUB-LET WORK, IGNORING THE FACT THAT NO COMMISSION INCOME ON SUB-LET WORK WAS SHOWN BY THE ASSESSEE. 1.4 THE EFFECTIVE GROUNDS TAKEN IN ASSESSEES CROSS -OBJECTIONS READ AS UNDER: - 1. THAT ON THE FACTS & IN THE CIRCUMSTANCES OF THE CASE THE ID CIT (A) ERRED IN SUSTAINING DISALLOWANCES OF RS.15,84,847/- ON ACCOU NT OF DISPROPORTIONATE RISE IN EXPENSES. 2. THAT ON THE FACTS & IN THE CIRCUMSTANCES OF THE CASE THE ID CIT (A) ERRED IN SUSTAINING DISALLOWANCES OF RS.4,00,035/- ON ACCOU NT OF VARIOUS BUSINESS EXPENSES. 3. THAT ON THE FACTS & IN THE CIRCUMSTANCES OF THE CASE THE ID CIT (A) ERRED IN CONFIRMING DISALLOWANCES OF EXPENSES WITHOUT CONSID ERING THE DECISION OF HON'BLE RAJASTHAN HIGH COURT IN THE CASE OF CIT V/S CONSULT ING ENGINEERING GROUP REPORTED IN 365 ITR 284. 4. THAT ON THE FACTS & IN THE CIRCUMSTANCES OF THE CASE THE ID CIT (A) ERRED IN CONFIRMING DISALLOWANCES IN ARBITRARILY MANNER WITH OUT APPLICATION OF MIND AND EXPLANATION FURNISHED BY THE ASSESSEE. 5. THAT ON THE FACTS & IN THE CIRCUMSTANCES OF THE CASE THE ID CIT (A) ERRED IN SUSTAINING DISALLOWANCES OF LOSS OF RS. 23,68,613/- ON ACCOUNT OF SALE OF MACHINERY. 6. THAT ON THE FACTS & IN THE CIRCUMSTANCES OF THE CASE THE HABIT OF THE DEPARTMENT TO MAKING HIGH PITCHED ADDITION AND CREATED HUGE DEMAN D AGAINST THE APPELLANT COMPANY REGULARLY SINCE 2011 ONWARD AND DUE TO SUCH ARBITRARILY AND ILLEGAL ACT OF THE DEPARTMENT THE BUSINESS OF THE APPELLANT COMPAN Y WAS LIKELY TO BE CLOSURE. 7. THAT ON THE FACTS & IN THE CIRCUMSTANCES OF THE CASE, THE VARIOUS ADDITIONS MADE BY THE ID AO IN THE ASSESSMENT ORDER ARE NOT ONLY I LLEGAL BUT ALSO WITHOUT JURISDICTION AND VIOLATION OF PRINCIPLE OF NATURAL JUSTICE. 4 M/S. MAHAVEER INFRA ENGINEERING PRIVATE LIMITED ASSESSMENT YEARS: 2014-15 & 2015-16 2. WE HAVE CAREFULLY HEARD THE RIVAL SUBMISSIONS AN D PERUSED RELEVANT MATERIAL ON RECORD INCLUDING WRITTEN SUBMI SSIONS AND DOCUMENTS PLACED IN THE PAPER BOOK. THE JUDICIAL PR ECEDENTS AS RELIED UPON DURING THE COURSE OF HEARING HAVE DULY BEEN DELIBERATED UPON. THE TRIBUNAL ORDER IN ASSESSEES OWN CASE FOR AYS 2012-13 & 2013-14, ITA NOS.274 & 275/JODH/2017 COMMON ORDER DATED 08/02/2018 HAS ALSO BEEN CONSIDERED. OUR ADJUDICATI ON TO THE SUBJECT MATTER WOULD BE AS GIVEN IN SUCCEEDING PARA GRAPHS. 3.1 THE ASSESSEE BEING RESIDENT CORPORATE ASSESSEE STATED TO BE ENGAGED AS CIVIL CONTRACTOR WAS ASSESSED U/S 143(3) ON 26/12/2016 WHEREIN RETURNED INCOME OF RS.178.09 LACS WAS ASSES SED AT RS.2812.42 LACS AFTER CERTAIN ADDITIONS / ADJUSTMEN TS / DISALLOWANCES. 3.2 IT IS EVIDENT THAT THE ASSESSEE HAS REFLECTED G ROSS PROFIT OF 16% DURING THE YEAR ON GROSS CONTRACT RECEIPTS OF R S.5440 LACS. THIS RATE WAS HIGHER THAN RATE OF 10.18% & 9.69% RE FLECTED FOR AYS 2013-14 & 2012-13 RESPECTIVELY. OUR ADJUDICATION TO THE ISSUES ARISING OUT OF APPEAL WOULD BE AS FOLLOWS. 4. ADDITION ON ACCOUNT OF DISCREPANCIES IN FORM 26A S 4.1 CERTAIN DISCREPANCIES WERE NOTED IN GROSS CONTR ACT RECEIPTS VIS--VIS RECEIPTS REFLECTED IN FORM 26AS AND ACCOR DINGLY, THE ASSESSEE WAS REQUIRED TO RECONCILE THE SAME. THE AS SESSEE RECONCILED DIFFERENCE OF 8 PARTIES BUT FAILED TO FI LE ANY EXPLANATION WITH REGARD TO 7 PARTIES. AFTER CONSIDERING THE ASS ESSEES EXPLANATION AS WELL AS DOCUMENTARY EVIDENCES, LD. A O OPINED THAT THOUGH TDS CREDIT WAS CLAIMED BUT RECEIPTS WERE NOT ACCOUNTED FOR 5 M/S. MAHAVEER INFRA ENGINEERING PRIVATE LIMITED ASSESSMENT YEARS: 2014-15 & 2015-16 AS PER FORM 26AS. THE DIFFERENCE WAS WORKED OUT TO BE RS.434.58 LACS WITH RESPECT TO 13 ENTITIES, THE DETAILS OF WH ICH HAVE ALREADY BEEN EXTRACTED ON PAGE-22 OF THE ORDER. THEREFORE, THE SAME WERE ADDED TO THE INCOME OF THE ASSESSEE. 4.2 IT IS APPARENT FROM PARA 6.2 OF THE IMPUGNED OR DER THAT THE ASSESSEE PREFERRED RECTIFICATION APPLICATION U/S 15 4 BEFORE LD.AO WHEREIN THIS ADDITION SO MADE WAS ULTIMATELY REDUCE D TO RS.13.10 LACS AND THE BALANCE ADDITIONS WERE ALREADY DELETED . 4.3 BEFORE LD. CIT(A), IT WAS POINTED OUT THAT THE DIFFERENCE OF RS.13.10 LACS AROSE DUE TO DOUBLE ENTRY OF TDS DEDU CTION BY THE RESPECTIVE PARTIES WHILE MAKING THE ADVANCES BUT NE VERTHELESS, THE RECEIPTS WERE ENTIRELY DISCLOSED BY THE ASSESSEE IN THE BOOKS OF ACCOUNTS. ALTERNATIVELY, PROFITS ARISING OUT OF THO SE DIFFERENTIAL RECEIPTS MAY BE ADDED. ACCEPTING THE ALTERNATIVE PL EA, LD. CIT(A) ESTIMATED AN ADDITION OF 5.26% ON DIFFERENCE OF RS. 13.10 LACS. THIS RATE WAS NOTHING BUT PROFIT RATE OF IMMEDIATELY PRE CEDING YEAR. AGGRIEVED, THE REVENUE IS IN FURTHER APPEAL BEFORE US BY WAY OF GROUND NO.3. 4.4 UPON DUE CONSIDERATION, WE FIND THAT SUBSTANTIA L ADDITIONS WERE ALREADY DELETED BY LD.AO U/S 154. REGARDING BA LANCE UNEXPLAINED RECEIPTS, INCOME HAS BEEN ESTIMATED AT PROFIT RATE AS REFLECTED IN IMMEDIATELY PRECEDING YEAR. IN OUR CON SIDERED OPINION, THE APPROACH ADOPTED BY LD. CIT(A) WAS PERFECT IN A LL RESPECT SINCE THE CONTRACT RECEIPTS WOULD NOT CONSTITUTE PROFIT O F THE ASSESSEE RATHER IT WOULD BE THE PROFIT ELEMENT EMBEDDED ON T HOSE RECEIPTS, WHICH WAS TO BE BROUGHT TO TAX. SIMILAR IS THE VIEW OF TRIBUNAL IN 6 M/S. MAHAVEER INFRA ENGINEERING PRIVATE LIMITED ASSESSMENT YEARS: 2014-15 & 2015-16 PARA 8.3.1 OF CITED ORDER FOR AY 2012-13. IN THE RE SULT, GROUND NO.3 OF REVENUES APPEAL STAND DISMISSED. 5. OUTSTANDING TRADE PAYABLES 5.1 THE ASSESSEE REFLECTED YEAR-END TRADE PAYABLES AT RS.4106.23 LACS. ACCORDINGLY, THE ASSESSEE WAS REQU IRED TO ESTABLISH THE IDENTITY AND CREDITWORTHINESS OF THE ENTITIES. THOUGH THE ASSESSEE EXPLAINED THE SAME, HOWEVER, LD. AO OP INED THAT THE ASSESSEE COULD NOT DISCHARGE THE ONUS TO ESTABLISH IDENTITY, CREDITWORTHINESS AND GENUINENESS OF 10 ENTITIES, TH E DETAILS OF WHICH HAVE BEEN EXTRACTED ON PAGE-34 OF THE ORDER. THESE CREDITORS AGGREGATING TO RS.1430.32 LACS WERE ADDED TO ASSESS EES INCOME U/S 68 OF THE ACT. 5.2 BEFORE LD. CIT(A), A PLEA WAS RAISED THAT THE P ROVISIONS OF SEC.68 WERE NOT APPLICABLE TO TRADE CREDITORS SINCE NO LOANS WERE RECEIVED BUT THE AMOUNTS WERE TO BE PAID AGAINST GO ODS / SERVICES RECEIVED BY THE ASSESSEE. ALL THE REQUISITE DETAILS WERE ALREADY PROVIDED TO LD. AO DURING THE COURSE OF ASSESSMENT PROCEEDINGS. 5.3 THE LD. CIT(A), WHILE REJECTING THE PLEA OF NON -APPLICABILITY OF SEC.68, OBSERVED THAT THE PARTIES UNDER CONSIDERATI ON WERE TRADE CREDITORS AND THE AMOUNTS DUE TO THEM WERE IN THE N ATURE OF CONTRACT WORK EXECUTED BY THEM ON BEHALF OF THE ASS ESSEE. THE ASSESSEE RECEIVED 2% COMMISSION ON SUB-LETTING WHIC H WAS ACCOUNTED FOR IN THE BOOKS OF ACCOUNT. THE PAYMENTS WERE THROUGH BANKING CHANNELS AND DUE TDS WAS DEDUCTED AGAINST T HE SAME. 7 M/S. MAHAVEER INFRA ENGINEERING PRIVATE LIMITED ASSESSMENT YEARS: 2014-15 & 2015-16 THE REQUISITE CONFIRMATIONS OF ACCOUNTS WERE FILED. THE PARTIES WERE IN EXISTENCE AND THE PAYMENTS TO THESE PARTIES WERE CLEARED BY THE ASSESSEE IN SUBSEQUENT YEARS. MERELY BECAUSE NOTICE U/S 133(6) DID NOT ELICIT SATISFACTORY RESPONSE, COULD NOT BE SOLE BASIS TO MAKE IMPUGNED ADDITIONS. THEREFORE, THE ADDITIONS WERE D ELETED WHICH HAS GIVEN RISE TO REVENUES GROUND NO.1. 5.4 UPON PERUSAL OF DOCUMENTARY EVIDENCES AS PLACED IN THE PAPER-BOOK BEFORE US, IT IS EVIDENT THAT THE STATED OUTSTANDING WERE TRADE CREDITORS FOR THE ASSESSEE. THEY HAVE EITHER CARRIED OUT WORK ON BEHALF OF THE ASSESSEE OR SUPPLIED GOODS / SERVI CES AGAINST CONSIDERATION. SUFFICIENT DOCUMENTARY EVIDENCES INC LUDING CONFIRMATION COPIES, COPIES OF INVOICES, BANK STATE MENTS ETC. HAVE BEEN PLACED ON RECORD WHICH WOULD INDICATE THAT THE SE OUTSTANDING, BY NO STRETCH OF IMAGINATION, COULD BE CONSIDERED A S MATTER OF ADDITION U/S 68. THE LD. CIT(A) CLINCHED THE ISSUE CORRECTLY BY OBSERVING THAT DUE TDS WAS DEDUCTED AND THE PAYMENT S WERE CLEARED IN SUBSEQUENT YEARS. THEREFORE, FINDING NO SUBSTANCE IN THIS GROUND RAISED BY THE REVENUE, WE DISMISS THE SAME. 6. UNSECURED LOAN CREDITORS 6.1 THE ASSESSEE REFLECTED YEAR-END LOAN CREDITORS FOR RS.739.29 LACS. ACCORDINGLY, THE ASSESSEE WAS REQUIRED TO EST ABLISH THE IDENTITY AS WELL AS CREDITWORTHINESS OF THE ENTITIE S IN TERMS OF REQUIREMENTS OF SEC.68. THOUGH THE ASSESSEE FILED C ERTAIN EXPLANATIONS / CONFIRMATIONS, HOWEVER, THE SAME COU LD NOT CONVINCE LD. AO WHO ADDED AN AMOUNT OF RS.576 LACS TO THE IN COME OF THE 8 M/S. MAHAVEER INFRA ENGINEERING PRIVATE LIMITED ASSESSMENT YEARS: 2014-15 & 2015-16 ASSESSEE U/S 68 WITH RESPECT TO 4 ENTITIES AS TABUL ATED ON PAGE-44 OF THE ORDER. 6.2 THE LD.CIT(A), AFTER CONSIDERING ASSESSEES DOC UMENTARY EVIDENCES, CAME TO A CONCLUSION THAT ALL THE 4 LEND ERS WERE ASSESSED TO INCOME TAX AND THEY FILED CONFIRMATION COPIES, COPY OF RETURN OF INCOME ALONG WITH AUDITED FINANCIAL STATE MENTS NOT ONLY FOR THIS YEAR BUT ALSO FOR EARLIER YEARS. IN THEIR RESP ECTIVE BALANCE SHEETS, THE LOANS SO ADVANCED TO THE ASSESSEE WERE DULY REFLECTED. THE BANK ACCOUNTS WERE OPERATIVE ACCOUNTS. THEREFOR E, SINCE THE ASSESSEE HAD SUCCESSFULLY DISCHARGED THE REQUISITE ONUS, THE ADDITIONS WERE TO BE DELETED. AGGRIEVED, THE REVENU E IS IN FURTHER APPEAL BEFORE US BY WAY OF GROUND NO.2. 6.3 WE HAVE GONE THROUGH ASSESSEES SUBMISSIONS AS WELL AS DOCUMENTARY EVIDENCES AS FILED BY THE ASSESSEE DURI NG THE COURSE OF APPELLATE PROCEEDINGS. UPON PERUSAL OF THE SAME, WE CONCUR WITH THE FINDINGS OF LD. CIT(A) THAT THE ASSESSEE HAD SU CCESSFULLY DISCHARGED THE REQUISITE ONUS IN TERMS OF SEC.68. A LL THE 4 LENDERS FILED CONFIRMATION OF ACCOUNTS AS WELL AS RESPECTIV E COPIES OF INCOME RETURNS. THE LOANS ADVANCED TO THE ASSESSEE WERE REFLECTED IN THEIR AUDITED FINANCIAL STATEMENTS. TH EREFORE, WE DO NOT FIND ANY INFIRMITY IN THE IMPUGNED ORDER, ON THIS I SSUE. THIS GROUND STAND DISMISSED. 7. DISPROPORTIONATE RISE IN EXPENSES 7.1 THE ASSESSEE CLAIMED AGGREGATE EXPENDITURE OF R S.803.59 LACS ON ACCOUNT OF PURCHASE OF RAW MATERIAL, REPAIR & MAINTENANCE AND TRANSPORTATION EXPENSES. THE SAME IN THE OPINIO N OF LD. AO 9 M/S. MAHAVEER INFRA ENGINEERING PRIVATE LIMITED ASSESSMENT YEARS: 2014-15 & 2015-16 WERE DISPROPORTIONATE VIS--VIS EXPENSES CLAIMED IN AY 2013-14. HENCE, THE ASSESSEE WAS REQUESTED TO PROVIDE COMPLE TE BOOKS OF ACCOUNTS, VOUCHERS & BILLS ETC. AFTER CONSIDERING A SSESSEES SUBMISSIONS, LD. AO CHOSE TO DISALLOW 25% OF INCREM ENTAL EXPENDITURE WHICH RESULTED INTO ANOTHER ADDITION OF RS.79.24 LACS IN THE HANDS OF THE ASSESSEE. 7.2 THE LD. CIT(A) OBSERVED THAT THE ONUS WAS ON AS SESSEE TO SUBSTANTIATE WITH DOCUMENTARY EVIDENCES TO THE EFFE CT THE EXPENDITURE CLAIMED IN PROFIT & LOSS ACCOUNT WAS LA ID OUT OR EXPANDED WHOLLY AND EXCLUSIVELY FOR THE PURPOSES OF THE BUSINESS. KEEPING IN VIEW THE FACTUAL MATRIX OF THE CASE, LD. CIT(A) FOUND THE ESTIMATION OF 25% ON THE HIGHER SIDE PARTICULARLY W HEN THE ASSESSEE WAS NOT AWARDED TRANSPORTATION WORK ON SUB LET BASIS AND THE ENTIRE WORK WAS EXECUTED BY THE ASSESSEE HIMSEL F WHICH LED TO INCREASE IN THE EXPENDITURE DURING THE YEAR. THE GP RATE WAS BETTER IN THIS YEAR. THEREFORE, THE DISALLOWANCE WAS TO BE REDUCED TO 5%. AGGRIEVED, THE ASSESSEE AS WELL AS REVENUE IS IN FU RTHER APPEAL BEFORE US. 7.3 WE FIND THAT THIS ISSUE IS COVERED IN ASSESSEE S FAVOR BY THE CITED DECISION OF THIS TRIBUNAL FOR AY 2013-14, WHE REIN THE ESTIMATED DISALLOWANCE OF 5% HAS BEEN DELETED BY TH E COORDINATE BENCH BY OBSERVING THAT IN THE ABSENCE OF ANY SPECI FIC FINDING BY LD. AO REGARDING DEFECTS EITHER IN BOOKS OF ACCOUNT S OR THE VOUCHERS, THE ADHOC DISALLOWANCE WAS TO BE DELETED. RESPECTFULLY FOLLOWING THE SAME, WE DELETE THE ENTIRE DISALLOWAN CE OF 25% AS MADE BY LD. AO IN THE ASSESSMENT ORDER. GROUND NO. 4 OF 10 M/S. MAHAVEER INFRA ENGINEERING PRIVATE LIMITED ASSESSMENT YEARS: 2014-15 & 2015-16 REVENUES APPEAL STAND DISMISSED WHEREAS GROUND NO. 1 OF ASSESSEES CROSS-OBJECTIONS STAND ALLOWED. 8. UN-VOUCHED / UNVERIFIABLE EXPENSES 8.1 THE ASSESSEE HAD CLAIM OPERATING EXPENSES AGGRE GATING TO RS.80 LACS AGAINST WHICH AN ADHOC ADDITION OF 10% W AS MADE BY LD.AO. THE SAME RESULTED INTO ANOTHER ADDITION OF R S.8 LACS IN THE HANDS OF THE ASSESSEE. 8.2 UPON FURTHER APPEAL, LD. CIT(A), FOLLOWING THE PRINCIPLE THAT COMPLETE ONUS TO ESTABLISH THE FACT THAT THE EXPEND ITURE WAS LAID OUT OR EXPANDED WHOLLY AND EXCLUSIVELY FOR THE PURPOSES OF THE BUSINESS WAS ON THE ASSESSEE, FOUND THE ESTIMATION OF 10% TO BE ON THE HIGHER SIDE AND THEREFORE REDUCED THE SAME T O 5%. AGGRIEVED, THE ASSESSEE AS WELL AS REVENUE IS IN FU RTHER APPEAL BEFORE US. 8.3 SINCE THE DISALLOWANCE IS AN ADHOC DISALLOWANCE AS IN GROUND NO.7, FOLLOWING THE SAME ANALOGY, THE ENTIRE DISALL OWANCE OF 10% STANDS DELETED. GROUND NO. 5 OF REVENUES APPEAL ST AND DISMISSED WHEREAS GROUND NO.2 OF ASSESSEES CROSS-OBJECTIONS STAND ALLOWED. 8.4 GROUND NO.3 & 4 OF ASSESSEES CROSS-OBJECTIONS ARE IN SUPPORT OF GROUND NOS.1 & 2. SINCE WE HAVE ALREADY ALLOWED GROUND NOS. 1 & 2 OF THE CROSS-OBJECTIONS, THESE GR OUNDS ARE DEEMED TO HAVE BEEN ALLOWED. 9. LOSS ON SALE OF MACHINERY 11 M/S. MAHAVEER INFRA ENGINEERING PRIVATE LIMITED ASSESSMENT YEARS: 2014-15 & 2015-16 9.1 THE ASSESSEE CLAIMED LOSS ON SALE OF MACHINERY FOR RS.23.68 LACS WHICH REMAINED UNSUBSTANTIATED AND ACCORDINGLY , DISALLOWED BY LD AO WHILE FRAMING THE ASSESSMENT. SIMILAR WAS THE POSITION BEFORE LD.CIT(A) WHO CONFIRMED THE ADDITION BY OBSE RVING THAT THE ASSESSEE FAILED TO FILE ANY EVIDENCES OF SALE CONSI DERATION. AGGRIEVED, THE ASSESSEE HAS RAISED GROUND NO. 5 IN THE CROSS- OBJECTION. 9.2 IN THE ABSENCE OF ANY NEW MATERIAL FORTHCOMING BEFORE US, WE ARE INCLINED TO CONFIRM THE STAND OF LOWER AUTHORIT IES ON THIS ISSUE AND DISMISS THIS GROUND AS RAISED BY THE ASSESSEE. 10. REST OF THE GROUND IN ASSESSEES CROSS-OBJECTIO NS IS GENERAL IN NATURE WHICH WOULD NOT REQUIRE ANY SPECIFIC ADJUDIC ATION ON OUR PART. 11. COMMISSION INCOME ON SUB-LETTING WORK 11.1 THE ASSESSEE RECEIVED CONTRACTS, PART OF WHICH WAS SUBLET TO OTHER PARTIES AND REMAINING WORK WAS TO BE EXECUTED BY THE ASSESSEE. THOUGH ASSESSEE REFLECTED 2% COMMISSION I N EARLIER YEARS, BUT NO SUCH COMMISSION WAS STATED TO BE SHOW N IN THIS YEAR. ACCORDINGLY, LD. AO ESTIMATED SIMILAR COMMISSION IN THIS YEAR AND ADDED AN AMOUNT OF RS.82.49 LACS TO THE INCOME OF T HE ASSESSEE. 11.2 THE LD.CIT(A), AFTER DUE CONSIDERATION OF FACT UAL MATRIX AS WELL AS RELEVANT AGREEMENTS, RENDERED A FINDING THA T THE ASSESSEE HAD DISCLOSED NET OF RS.113.87 LACS WHICH COMPRISES -OFF OF PROFIT EARNED FROM WORK EXECUTED BY IT AND COMMISSION RECE IVED FROM THIRD PARTIES IN RESPECT OF WORK ALLOTTED ON SUBLET BASIS. THEREFORE, ADDING THE SAME AGAIN WOULD AMOUNT TO DOUBLE TAXATI ON. THEREFORE, 12 M/S. MAHAVEER INFRA ENGINEERING PRIVATE LIMITED ASSESSMENT YEARS: 2014-15 & 2015-16 THE ADDITIONS WERE TO BE DELETED. AGGRIEVED, THE RE VENUE HAS RAISED GROUND NO. 6 BEFORE US. 11.3 WE FIND THAT THE FINDINGS OF LD. CIT(A) REMAIN UNDISTURBED BEFORE US. ONCE THE AMOUNT HAS ALREADY BEEN OFFERED TO TAX, ADDING THE SAME AGAIN WOULD AMOUNT TO DOUBLE TAXATION. THE REFORE, NO FAULT COULD BE FOUND WITH THE APPROACH OF APPELLATE AUTHORITY, ON THIS ISSUE. THE GROUND STAND DISMISSED. CONCLUSION 12. THE REVENUES APPEAL STAND DISMISSED WHEREAS TH E ASSESSEES CROSS-OBJECTIONS STANDS PARTLY ALLOWED 13. CROSS-APPEALS FOR AY 2015-16 FACTS AS WELL ISSUES ARE SUBSTANTIALLY THE SAME AS IN AY 2014-15. WHILE FRAMING ASSESSMENT U/S 143(3) ON 30/12/2017, THE ASSESSEE WAS SADDLED WITH FOLLOWING ADDITIONS: - NO. PARTICULARS AMT. (RS.) 1. MISMATCH IN FORM 26AS RS.208.62 LACS 2. DISALLOWANCE U/S 40(A)(IA) RS.33.26 LACS 3. EXPENDITURE CLAIMED FROM BOGUS PARTIES RS.45.45 LACS 4. ADDITION U/S 68 (UNSECURED LOANS) RS39.69 LACS 5. BOGUS BILLING ENTRY RS.998.61 LACS 6. ADDITION U/S 69C RS.49.39 LACS 7. ADDITION U/S 69C RS.0.99 LACS 8. DISALLOWANCE OF EXPENDITURE RS.24.38 LACS 14. MISMATCH IN FROM 26AS 14.1 AN ADDITION OF RS.208.62 LACS WAS MADE WITH RE SPECT TO 6 ENTITIES ON ACCOUNT OF MISMATCH IN FORM 26AS WHICH IS ON SIMILAR LINES AS IN AY 2014-15. 13 M/S. MAHAVEER INFRA ENGINEERING PRIVATE LIMITED ASSESSMENT YEARS: 2014-15 & 2015-16 DURING APPELLATE PROCEEDINGS, THE ASSESSEE SUBMITTE D THAT DIFFERENCE AROSE ONLY BECAUSE THE DEDUCTOR DEDUCTED TDS ON SERVICE TAX, TDS WAS DEDUCTED WHILE MAKING ADVANCE PAYMENT AND THE INCOME WERE ALREADY SHOWN IN OTHER YEARS. ACCOR DINGLY, A REMAND REPORT WAS CALLED FROM LD. AO, IN THIS REGAR D. AFTER CONSIDERING REMAND REPORT AS WELL AS ASSESSEES REP LIES THERETO, LD. CIT(A) DIRECTED LD.AO TO RESTRICT THE ADDITION TO THE EXTENT OF 5.26% OF MISMATCH AMOUNT. THIS RATE WAS NOTHING BUT HIGHEST PROFIT RATE REFLECTED BY THE ASSESSEE DURING PAST THREE CO NSECUTIVE YEARS. THE AFORESAID ADJUDICATION HAS GIVEN RISE TO CROSS- APPEALS BEFORE US. 14.2 THE LD. AR, IN THE WRITTEN SUBMISSIONS HAS SUB MITTED THAT THERE IS NO MISMATCH IN FORM NO.26AS AS ALLEGED BY LOWER AUTHORITIES. ON IDENTICAL FACTS, LD. AO HAD RECTIFI ED THE MISTAKES IN AY 2014-15 WHEREAS APPLICATION FOR THIS YEAR HAS BE EN REJECTED IN AN ARBITRARY MANNER. THE LD. CIT(A) DID NOT APPLY MIND TO THE REMAND REPORT AND MERELY ENDORSED THE VIEW OF LD. A O AND BLINDLY DIRECTED FOR APPLICATION OF PROFIT RATE TO THE MISM ATCH WITHOUT CONSIDERING THE FACTUAL MATRIX. 14.3 UPON CAREFUL CONSIDERATION OF ASSESSEES WRITT EN SUBMISSIONS, WE FIND SUBSTANCE IN THE ARGUMENTS RAISED BEFORE US . IF TDS HAS BEEN DEDUCTED ON SERVICES TAX COMPONENTS OR ADVANCE PAYMENT, THERE WOULD NATURALLY BE A MISMATCH IN THE FIGURES REFLECTED IN BOOKS OF ACCOUNTS VIS--VIS FIGURES REFLECTED IN FO RM 26AS. FURTHER, FEW RECEIPTS HAVE ALREADY BEEN OFFERED TO TAX IN OT HER YEARS. WE FIND THAT THIS MATTER IS FACTUAL MATTER ND REQUIRE FURTHER VERIFICATION 14 M/S. MAHAVEER INFRA ENGINEERING PRIVATE LIMITED ASSESSMENT YEARS: 2014-15 & 2015-16 FOR PROPER ADJUDICATION. THEREFORE, WE RESTORE THIS MATTER BACK TO THE FILE OF LD. CIT(A) FOR RE-ADJUDICATION IN THE L IGHT OF ARGUMENTS RAISED BEFORE US AS WELL AS IN THE LIGHT OF REMAND REPORT SUBMITTED BY LD. AO. THE ASSESSEE IS DIRECTED TO PROVIDE THE REQUISITE DETAILS. GROUND NO. 1 OF REVENUES APPEAL AS WELL AS GROUND NO.2 & 2.1 OF ASSESSEES APPEAL STAND ALLOWED FOR STATISTICAL PUR POSES. 15. DISALLOWANCE U/S 40(A)(IA) 15.1 THIS ADDITION STEM FROM THE FACT THAT THE ASSE SSEE DID NOT DEDUCT TDS ON SUBLET WORK WITH RESPECT TO 25 ENTITI ES. THE DETAILS THEREOF HAVE BEEN TABULATED IN PARA-16 OF THE ASSES SMENT ORDER. INVOKING THE PROVISIONS OF SEC.40(A)(IA), LD.AO MAD E ADDITIONS OF RS.30% AGAINST AGGREGATE SUM OF RS.110.87 LACS WHIC H RESULTED INTO AN ADDITION OF RS.33.26 LACS IN THE HANDS OF T HE ASSESSEE. 15.2 DURING APPELLATE PROCEEDINGS, THE ASSESSEE PRO DUCED COPIES OF FORM 26Q. UPON PERUSAL OF THE SAME, IT WAS FOUND THAT DUE TDS WAS DEDUCTED WITH RESPECT TO 17 PARTIES BUT NO TDS WAS DEDUCTED AGAINST 8 PARTIES. THE DETAILS OF THE SAME HAVE BEE N TABULATED IN PARA 7.2 OF THE IMPUGNED ORDER. SINCE THE ASSESSEE FAILED TO DEDUCT TDS AGAINST SUM OF RS.10.84 LACS, DISALLOWANCE OF 3 0% WAS CONFIRMED AGAINST THE SAME. THE AFORESAID ADJUDICAT ION HAS GIVEN RISE TO CROSS-APPEALS BEFORE US. 15.3 WE FIND THAT DISALLOWANCE HAS BEEN MADE SINCE THERE WAS EITHER SHORT-DEDUCTION OF TDS OR NO TDS. THE SHORT- DEDUCTION OF TDS, IN OUR CONSIDERED OPINION, WOULD NOT FALL FOR DISALLOWANCE U/S 40(A)(IA) AS PER THE DECISION OF HONBLE CALCUTTA HIGH COURT IN CIT VS. S.K.TEKRIWAL [2014 46 TAXMANN.COM 444] AS WELL AS THE 15 M/S. MAHAVEER INFRA ENGINEERING PRIVATE LIMITED ASSESSMENT YEARS: 2014-15 & 2015-16 DECISION OF HONBLE KARNATAKA HIGH COURT IN CIT VS. KISHORE RAO & OTHERS [2017 79 TAXMANN.COM 357]. THEREFORE, THE DISALLOWANCE TO THAT EXTENT IS NOT SUSTAINABLE. 15.4 HOWEVER, NO TDS DEDUCTION CASE WOULD CERTAINLY FALL FOR DISALLOWANCE U/S 40(A)(IA). THE PARTIES LISTED AT S ERIAL NOS. 15, 23 & 25 OF THE TABLE AS EXTRACTED IN THE IMPUGNED ORDER, WOULD FALL UNDER THIS CATEGORY. THE AGGREGATE WOULD AMOUNT TO RS.4,8 8,149/-. ACCORDINGLY, DISALLOWANCE IS SUSTAINED TO THE EXTEN T OF 30% THEREOF WHICH COMES TO RS.1,46,445/-. WE ORDER SO. GROUND NO. 2 OF REVENUES APPEAL STAND DISMISSED WH EREAS GROUND NO.3 OF ASSESSEES APPEAL STAND PARTLY ALLOW ED. 16. EXPENDITURE CLAIMED FROM BOGUS PARTIES 16.1 IT WAS FOUND THAT THE CERTAIN AMOUNTS WERE OUT STANDING AT YEAR-END AGAINST TRADE CREDITORS AGGREGATING TO RS. 227.25 LACS. IN THE ABSENCE OF CONFIRMATION OF ACCOUNT, 20% OF SUCH CREDITORS WAS DISALLOWED WHICH CAME TO RS.45.45 LACS. 16.2 THE LD. CIT(A), SUBSTANTIALLY FOLLOWING THE AP PELLATE ORDER FOR AY 2014-15 HELD THAT THE ADDITIONS WERE TO BE DELET ED. AGGRIEVED, THE REVENUE IS IN FURTHER APPEAL BEFORE US. 16.3 WE FIND THAT FACTUAL MATRIX TO BE PARI-MATERIA THE SAME AS IN SIMILAR ISSUE IN AY 2014-15. THEREFORE, TAKING THE SAME VIEW, WE CONFIRM THE ACTION OF LD. CIT(A). CONSEQUENTLY, GRO UND NO. 3 OF REVENUES APPEAL STAND DISMISSED. 17. ADDITION U/S 68 (UNSECURED LOANS) 17.1 UPON VERIFICATION OF UNSECURED LOANS, THE LOAN S TAKEN FROM M/S AETOS DISTILLERIES LTD. AS WELL AS FROM M/S ZENITH STRIPS PVT. LTD. 16 M/S. MAHAVEER INFRA ENGINEERING PRIVATE LIMITED ASSESSMENT YEARS: 2014-15 & 2015-16 AGGREGATING TO RS.39.69 LACS WERE FOUND TO BE UNSUB STANTIATED AND ACCORDINGLY, ADDED U/S 68. THE STAND OF LD. AO, UPO N CONFIRMATION BY LD. CIT(A), IS UNDER CHALLENGE BEFORE US BY WAY OF GROUND NO.4 TO 4.2 OF ASSESSEES APPEAL. 17.2 UPON PERUSAL OF LEDGER EXTRACT OF M/S AETOS DI STILLERIES PVT. LTD., AS PLACED ON PAGE-225 OF THE PAPER-BOOK, WE F IND THAT THIS ENTITY HAS PRIMARILY PAID VAT ON BEHALF OF THE ASSE SSEE WHICH IS EVIDENT FROM COPIES OF VAT CHALLANS PLACED ALONG-WI TH THE LEDGER EXTRACT. THIS IS CONTRARY TO FINDINGS RENDERED BY L D. CIT(A). IT HAS BEEN EXPLAINED THAT DUE TO ATTACHMENT OF ACCOUNTS, THE ASSESSEE WAS UNABLE TO PAY GOVERNMENT TAXES AND THEREFORE, R EQUESTED THE SAID PARTY TO MAKE VAT PAYMENT ON BEHALF OF THE ASS ESSEE. THE ASSESSEES SUBMISSIONS ARE BACKED BY DOCUMENTARY EV IDENCES IN THE SHAPE OF VAT CHALLANS AND THEREFORE, ACCEPTING THE SAID SUBMISSIONS, WE DIRECT LD. AO TO DELETE ADDITION AG AINST THIS PARTY. 17.3 SO FAR AS THE RECEIPT OF RS.3 LACS FROM M/S ZE NITH STRIPS PRIVATE LIMITED IS CONCERNED, IT IS THE SUBMISSIONS OF THE ASSESSEE THAT THERE WAS A BONA-FIDE MISTAKE COMMITTED BY THE ASSESSEE THAT THE AFORESAID AMOUNT WAS WRONGLY ENTERED IN THE ACC OUNT OF M/S SOHEL TRANSPORT WHO REGULARLY TRADE WITH THE ASSESS EE. THE MISTAKE HAS SINCE BEEN RECTIFIED. WE FIND THAT SUBM ISSIONS WOULD REQUIRE FACTUAL VERIFICATION AND ACCORDINGLY, WE DI RECT LD. CIT(A) TO ASCERTAIN THE CORRECT FACTS AND RE-ADJUDICATE THE S AME IN THE LIGHT OF ASSESSEES SUBMISSIONS. 17.4 THE GROUND RAISED IN ASSESSEES APPEAL STANDS PARTLY ALLOWED. 18. BOGUS BILLING ENTRY & ADDITION U/S 69C 17 M/S. MAHAVEER INFRA ENGINEERING PRIVATE LIMITED ASSESSMENT YEARS: 2014-15 & 2015-16 18.1 PURSUANT TO RECEIPT OF CERTAIN INFORMATION FRO M INVESTIGATION WING, KOLKATA, IT WAS ALLEGED THAT THE ASSESSEE OBT AINED ACCOMMODATION JOB WORK BILL FOR RS.998.61 LACS FROM AN ENTITY NAMELY M/S ARAVINDA INFRASTRUCTURE PVT. LTD. ACCORD INGLY, THE SAME WAS DISALLOWED AS BOGUS EXPENDITURE. FURTHER, 0.10% COMMISSION WAS ESTIMATED AGAINST THESE BILLS WHICH LED TO ANOT HER ADDITION OF RS.0.99 LACS U/S 69C. 18.2 IT FURTHER TRANSPIRED THAT THE ASSESSEE MADE P AYMENT OF RS.49.39 LACS TO A SIMILAR ENTITY NAMELY M/S BRIDGE & BUILDING CONSTRUCTION CO. PVT. LTD. WHICH WAS ALSO ADDED U/S 69C AS UNEXPLAINED EXPENDITURE. 18.3 DURING APPELLATE PROCEEDINGS, LD. CIT(A) OBSER VED THAT THE ASSESSEE HAS REGULARLY ALLOTTED THE CONTRACT WORK O N SUBLET BASIS TO BOTH THE ENTITIES. DUE TDS WAS DEDUCTED AGAINST THE PAYMENT SO MADE. WHILE ARRIVING AT SUCH A CONCLUSION, THE DOCU MENTARY EVIDENCES VIZ. CONFIRMATION OF ACCOUNTS, WORK ORDER , BILLS RAISED BY THE SUB-CONTRACTOR WERE DULY EXAMINED. FURTHER, THE PROVISIONS OF SCE.69C COULD BE INVOKED ONLY WHERE THE ASSESSEE IN CUR ANY EXPENDITURE AND OFFER NO EXPLANATION ABOUT THE SOUR CE OF SUCH EXPENDITURE. HOWEVER, IN ASSESSEES CASE, THERE WAS NO SUCH UNEXPLAINED EXPENDITURE. ANOTHER FACT TO BE NOTED W AS THAT SIMILAR TRANSACTIONS CARRIED OUT WITH THESE ENTITIES IN EAR LIER YEAR WERE FOUND TO BE GENUINE BY LD. FIRST APPELLATE AUTHORIT Y. ACCORDINGLY, THE ADDITIONS WERE DELETED. AGGRIEVED, THE REVENUE IS I N FURTHER APPEAL BEFORE US BY WAY OF GROUND NOS. 4 TO 6. 18 M/S. MAHAVEER INFRA ENGINEERING PRIVATE LIMITED ASSESSMENT YEARS: 2014-15 & 2015-16 18.4 AFTER GOING THROUGH DOCUMENTARY EVIDENCES AS P LACED IN THE PAPER-BOOK WITH RESPECT TO THESE TWO ENTITIES, WE F IND THAT M/S ARAVINDA INFRASTRUCTURE PVT. LTD. HAS REGULAR DEALI NG WITH THE ASSESSEE. THE ASSESSEE HAS AWARDED WORK ORDER TO TH IS PARTY VIDE AGREEMENT DATED 15/12/2014 TO DEVELOP TENTATIVE ARE A OF 412727 CUBIC MTR. AT RS.216/- PER CUBIC MTR. THE CONFIRMED COPY OF THE ACCOUNT IS ON RECORD. THE ASSESSEE HAS DEDUCTED TDS AGAINST THE JOB WORK EXPENSES. THE PART PAYMENT HAS BEEN SETTLE D IN SUCCEEDING YEAR. SIMILAR FACTS AND DOCUMENTARY EVID ENCES EXIST IN THE CASE OF M/S BRIDGE & BUILDING CONSTRUCTION CO. PVT. LTD. 18.5 FURTHER, THE WHOLE BASIS OF MAKING IMPUGNED AD DITIONS ARE THIRD PARTY STATEMENTS WITHOUT THERE BEING ANY CONC RETE EVIDENCE ON RECORD TO ESTABLISH THAT THE EXPENDITURE WAS BOGUS IN NATURE. IT IS TRITE LAW THAT NO ADDITIONS COULD BE MADE MERELY ON THE BASIS OF SUSPICION, CONJECTURES OR SURMISES. SINCE THE ASSES SEE HAS DISCHARGED THE ONUS OF PROVING THE GENUINENESS OF I MPUGNED EXPENDITURE, THE ADDITIONS SO MADE WOULD NOT BE JUS TIFIED. ACCORDINGLY, NO INTERFERENCE IS CALLED FOR, ON THES E ISSUES, IN THE IMPUGNED ORDER. GROUNDS THUS RAISED BY THE REVENUE STAND DISMISSED. 19. DISALLOWANCE OF EXPENDITURE 19.1 IT TRANSPIRED THAT THE ASSESSEE CLAIMED SITE E XPENSES & TRANSPORT EXPENSES FOR RS.487.70 LACS WHICH WERE MO STLY PAID IN CASH. SINCE THE SAME WERE SUPPORTED ONLY BY SELF MA DE VOUCHERS, LD. AO ESTIMATED AN ADDITION OF 5% AGAINST THE SAME WHICH TRANSLATED INTO AN ADDITION OF RS.24.38 LACS IN THE HANDS OF THE 19 M/S. MAHAVEER INFRA ENGINEERING PRIVATE LIMITED ASSESSMENT YEARS: 2014-15 & 2015-16 ASSESSEE. THE LD. CIT(A) CONFIRMED THE SAME TO COVE R UP POSSIBLE LEAKAGES ON ACCOUNT OF PERSONAL ELEMENT AND IN VIEW OF THE FACT THAT THE SAME WERE UN-VOUCHED EXPENSES. AGGRIEVED, THE ASSESSEE IS IN FURTHER APPEAL BEFORE US BY WAY OF GROUND NOS . 5 TO 5.2. 19.2 THE ASSESSEE, IN THE WRITTEN SUBMISSIONS, HAVE CONTROVERTED THE STAND OF LOWER AUTHORITIES BY ASSERTING THAT SU BSTANTIAL PAYMENTS WERE THOUGH BANKING CHANNELS DULY SUPPORTED BY THE BILLS. THE DETAILS HAVE BEEN TABULATED IN THE WRITTEN SUBMISSI ONS. THIS IS CONTRARY TO THE FINDINGS RENDERED BY LD.AO. THEREFO RE, WE REMIT THIS ISSUE BACK TO THE FILE OF LD. CIT(A) FOR AFORESAID FACTUAL VERIFICATION. THE ESTIMATED DISALLOWANCE OF 5%, IN OUR OPINION, I S QUITE FAIR & REASONABLE BUT IT SHOULD BE RESTRICTED ONLY TO CASH EXPENDITURE INCURRED UNDER THESE HEADS. WE ORDER SO. THIS GROUN D STAND PARTLY ALLOWED FOR STATISTICAL PURPOSES. 19.3 REST OF THE ARGUMENTS IN CROSS-APPEALS ARE EIT HER GENERAL OR CONSEQUENTIAL IN NATURE AND HENCE, DO NOT REQUIRE A NY SPECIFIC ADJUDICATION ON OUR PART. 20. IN THE RESULT, THE REVENUES APPEAL STAND PARTL Y ALLOWED FOR STATISTICAL PURPOSES WHEREAS THE ASSESSEES APPEAL STAND PARTLY ALLOWED IN TERMS OF OUR ABOVE ORDER. CONCLUSION 21. THE REVENUES APPEAL FOR AY 2014-15 STANDS DISM ISSED. THE REVENUES APPEAL FOR AY 2015-16 STANDS PARTLY ALLOW ED FOR STATISTICAL PURPOSES. THE ASSESSEES CROSS-OBJECTIONS FOR AY 20 14-15 AS WELL AS APPEAL FOR 2015-16 STANDS PARTLY ALLOWED TO THE EXTENT INDICATED IN THE ORDER. 20 M/S. MAHAVEER INFRA ENGINEERING PRIVATE LIMITED ASSESSMENT YEARS: 2014-15 & 2015-16 ORDER PRONOUNCED U/R 34(4) OF INCOME TAX (APPELLATE TRIBUNAL) RULES, 1963. SD/- SD/- (SANDEEP GOSAIN) (MAN OJ KUMAR AGGARWAL) / JUDICIAL MEMBER / ACCOUNTANT MEMBER MUMBAI; DATED : 21/12/2020 SR.PS:-JAISY VARGHESE ! / COPY OF THE ORDER FORWARDED TO : 1. ' / THE APPELLANT 2. #$' / THE RESPONDENT 3. % ( ) / THE CIT(A) 4. % / CIT CONCERNED 5. &'#( ) , ) , ) / DR, ITAT, JODHPUR 6. '+,-! / GUARD FILE / BY ORDER, / (DY./ASSTT.REGISTRAR) , / ITAT, JODHPUR.