M/s. B.M.S. Projects Pvt.Ltd., Surat V. The Dy.CIT.,Circle-1, Surat

ITA 643/AHD/2009

• Counselvise Citation: [2013] 120 COUNSELVISE.COM (IT) 0318 (ITAT-AHMEDABAD)
• Duration Of Justice: 3 year(s) 10 month(s) 24 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 21-01-2013
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: D
• Next Hearing Date: 02-07-2012
• Assessment Year: 2005-2006
• Appeal Filed On: 27-02-2009
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: D P GUPTA
• Assessee Lawyers: J P SHAH
• Keywords: Depreciation; Principle of natural justice; Retrospective amendment; Corroborative evidences

Judgement Text

, , , , IN THE INCOME TAX APPELLATE TRIBUNAL D BENCH, AHMEDABAD , ! '#, $% $ & BEFORE SHRI MUKUL KR.SHRAWAT, JUDICIAL MEMBER AND SHRI ANIL CHATURVEDI, ACCOUNTANT MEMBER 1. ./ I.T.A.NO.643/AHD/2009 - ! ) ! ) ! ) ! )/ // / A.Y. 2005-06 2. ./ I.T.A.NO.748/AHD/2009 - ! ) ! ) ! ) ! )/ // / A.Y. 2005-06 1. B.M.S.PROJECTS PVT.LTD. A-508, TIRUPATI PLAZA NR.COLLECTOR OFFICE ATHWAGATE SURAT 395 001 2. DY.CIT SURAT ! ! ! ! / VS. 1. DY.CIT CIRCLE-1, SURAT 2. B.M.S.PROJECTS PVT.LTD. SURAT * $% ./+, ./ PAN/GIR NO. : AAACB 9707 G ( *- / // / APPELLANTS ) .. ( ./*- / RESPONDENTS ) ASSESSEE BY : SHRI J.P.SHAH, A.R. REVENUE BY : SHRI D.P.GUPTA, CIT-DR !0 1 % / / / / DATE OF HEARING : 26/10/2012 23) 1 % / DATE OF PRONOUNCEMENT : 21/01/2013 $4 / O R D E R PER SHRI MUKUL KR. SHRAWAT, JUDICIAL MEMBER : THESE CROSS-APPEALS HAVE BEEN FILED AGAINST THE O RDER OF THE LD.CIT(A)-I, SURAT DATED 24.12.2008 FOR A.Y. 2005-0 6. SINCE THE ISSUE INVOLVED AND RELATED FACTS ARE COMMON, HENCE THESE TWO APPEALS ARE CONSOLIDATED. WE SHALL FIRST TAKE UP THE ASSESSEE S APPEAL. [A ASSESSEES APPEAL, ITA NO.643/AHD/2009 2. GROUND NO.1 READ AS UNDER: ITA NO.643/AHD/2009(BY ASSESSEE) & ITA NO.748/AHD/2009 (BY REVENUE) BMS PROJECTS PVT.LTD. VS. DY.CIT ASST.YEAR - 2005-06 - 2 - 1. THAT ON FACTS AND CIRCUMSTANCES OF THE CASE, TH E LEARNED CIT(A) HAS ERRED IN UPHOLDING THE DISALLOWANCE OF PAYMENT MADE TO SUB- CONTRACTORS OF RS.86,643/ - AS MADE BY THE AO ALLEGING THAT THE CREDITORS ARE NOT PROVED, WHICH IS INCORRECT AND NE EDS TO BE DELETED IN THE INTEREST NATURAL JUSTICE AND EQUITY. 2.1. FACTS IN BRIEF AS EMERGED FROM THE CORRESPONDI NG ASSESSMENT ORDER PASSED U/S.143(3) OF THE IT ACT DATED 17.12.2007 WERE THAT THE ASSESSEE- COMPANY IS IN THE BUSINESS OF CONSTRUCTION OF INFRA STRUCTURE PROJECTS. IT WAS NOTED BY THE AO THAT THE ASSESSEE HAD UNDERT AKEN THE WATER SUPPLY PROJECT . IT HAS ALSO BEEN NOTED BY THE AO THAT THE PRIN CIPLE SOURCE OF INCOME OF THE ASSESSEE WAS JOB WORK RECEIPTS . IN RESPECT OF THE GROUNDS, MAINLY GROUND NO. 1 & 2, WE HAVE BEEN INFORMED THAT THE AO HAD NOTED THAT THE TOTAL WORK CARRIED OUT BY THE ASSESSEE WAS STATED TO BE RS.11,80,40,814/-. THE ASSESSEE HAD GIVEN SUB-C ONTRACT AND THE VALUE OF THE WORK OF THE SUB-CONTRACT WAS RS.3,41,38,500/ -. THE AO HAS RAISED QUERIES IN RESPECT OF THE SAID AMOUNT WHICH WAS CLAIMED TO BE SUB- CONTRACTED AND INVESTIGATED TO VERIFY THE FACTS IN THIS REGARD. THE AO HAD ISSUED NOTICE REQUIRING THE ASSESSEE TO FURNISH THE INFORMATION IN RESPECT OF THOSE SUB-CONTRACTORS, SUCH AS, THEIR AD DRESSES, PAN DETAILS AND DETAILS OF PAYMENT. TO VERIFY THE GENUINENESS OF THE SUB-CONTRACTORS, THE AO HAD CARRIED OUT THE INVESTIGATION AS PRESCRI BED U/S.133(6) OF THE IT ACT. THERE WAS A LONG LIST OF SUB-CONTRACTORS AGAINST WHOM THE AO HAD MADE THE ENQUIRIES. IN THE FOLLOWING PARAGRA PHS, THE NATURE OF DISALLOWANCES SHALL BE DISCUSSED SEPARATELY, HOWEVE R AT PRESENT THE IMPUGNED ADDITION WAS IN RESPECT OF TWO PERSONS; ON E IS NAMELY, JETHWA OF RS.75,350/- AND ANOTHER PARTY PRATIK OF RS.11, 293/- TOTALLING TO ITA NO.643/AHD/2009(BY ASSESSEE) & ITA NO.748/AHD/2009 (BY REVENUE) BMS PROJECTS PVT.LTD. VS. DY.CIT ASST.YEAR - 2005-06 - 3 - RS.86,643/-. IN THIS REGARD, AS ALSO IN REGARD OF ALL OTHER PARTIES, THE FIRST APPELLATE AUTHORITY HAS CALLED FOR THE REMAND REPORTS AND IN COMPLIANCE TWO SUCH REMAND REPORTS WERE CONSIDERED BY LD.CIT(A). ON THE BASIS OF THOSE REMAND REPORTS AND OTHER INFO RMATION, IT WAS NOTED BY LD.CIT(A) THAT THE CLAIM OF THE ASSESSEE I N RESPECT OF ONE OF THE PARTY, NAMELY, SHRI DINESH JAYRAMBHAI JETHWA WAS TH AT THE ASSESSEE HAD CLAIMED THAT HIS RECORDS WERE DESTROYED IN FLOOD. DUE TO THIS REASON, THE TRANSACTIONS COULD NOT BE VERIFIED, HOWEVER, IT WAS ALSO CLAIMED THAT AN AMOUNT OF RS.70,000/- WAS PAID THROUGH ACCOUNT PAYE E CHEQUE. IT WAS NOTED THAT TOTAL BILLS RAISED BY HIM WERE AMOUNTED TO RS.1,56,337/-. 2.2. AS AGAINST THAT, THE ALLEGATION OF THE REVENUE DEPARTMENT WAS THAT ON ENQUIRY, THE SAID PARTY HAD STATED THAT NO TRANS ACTION HAD BEEN MADE WITH THE ASSESSEE-COMPANY. IN COMPLIANCE, ASSESS EES CONTENTION WAS THAT ON ONE HAND, MR.JETHWA HAS CLAIMED THAT HIS RE CORDS WERE DESTROYED IN FLOOD, HOWEVER ON THE OTHER HAND, HE HAD NOT DEN IED THE FACT THAT AN AMOUNT OF RS.70,000/- WAS PAID TO HIM BY ACCOUNT PA YEE CHEQUES. AN ANOTHER FACT HAS ALSO BEEN BROUGHT TO THE NOTICE OF LD.CIT(A) THAT OUT OF THE TOTAL BILL AMOUNT OF RS.1,56,337/-, THE AO HAD MADE THE DISALLOWANCE U/S.40(A)(IA) OF RS.80,987/-, THEREFORE, THE BALANC E AMOUNT WHICH WAS REQUIRED TO BE CONSIDERED INDEPENDENTLY BY THE CIT( A) WAS RS.75,350/-. WE HAVE NOTED THAT DUE OPPORTUNITY WAS GRANTED BUT AFTER ELABORATE DISCUSSION, IT WAS CONCLUDED BY THE LD.CIT(A) THAT THE ASSESSEE HAD FAILED TO ESTABLISH THE CORRECTNESS OF THE PAYMENT OF RS.7 5,350/- TO MR.JETHWA. A CLEAR FINDING WAS GIVEN THAT THE PAYMENT OF THE SAID AMOUNT WAS NOT PROVED. EVEN BEFORE US, THE ASSESSEE HAS NOT STRENGTHENED ITS CASE, ITA NO.643/AHD/2009(BY ASSESSEE) & ITA NO.748/AHD/2009 (BY REVENUE) BMS PROJECTS PVT.LTD. VS. DY.CIT ASST.YEAR - 2005-06 - 4 - THEREFORE WE ARE NOT INCLINED TO REVERSE THE FINDIN GS ON FACTS GIVEN BY LD.CIT(A), HENCE HEREBY CONFIRM THE DISALLOWANCE OF RS.75,350/ -. 2.3. IN RESPECT OF THE PAYMENT CLAIMED TO HAVE BEEN MADE TO ONE M/S PRATIK, AGAIN CIT(A) HAS VERIFIED THE FACTS BUT NOT ED THAT THE CLAIM OF THE ASSESSEE WAS LABOUR PAYMENT TO THE TUNE OF RS.35,86 3/-, CLAIMED TO HAVE BEEN MADE TO M/S.PRATIK CONSTRUCTION. HOWEVER, ON ENQUIRY THE SAID PARTY HAD DENIED THE EXISTENCE OF ANY TRANSACTION W ITH THE ASSESSEE- COMPANY. ON THE OTHER HAND, ASSESSEES CLAIM WAS THAT THE SAID PARTY WAS NOT CONFRONTED TO HIM. DUE TO THAT REASON, LD .CIT(A) HAD CALLED FOR REMAND REPORTS, BUT IT WAS NOTED BY LD.CIT(A) THAT THE ASSESSEE COULD NOT IMPROVE HIS CASE. THEREFORE, LD.CIT(A) HAD GI VEN A CLEAR FINDING ON FACTS THAT OUT OF THE TOTAL PAYMENT OF RS.35,863/- CLAIMED TO HAVE BEEN MADE THE AO HAD ALREADY MADE A DISALLOWANCE U/S.40( A)(IA) AND FOR THE BALANCE AMOUNT OF RS.11,293/-, THE ASSESSEE HAD FAILED TO PROVE THE CORRECTNESS OF THE SAME, HENCE CONFIRMED THE ADDITI ON. IN THE ABSENCE OF ANY COGENT MATERIAL IN SUPPORT OF THE BALANCE AMOUN T, WE HEREBY CONFIRM THE FACTUAL FINDING OF LD.CIT(A) AND DISMISS THIS G ROUND. IN THE RESULT, GROUND NO.1 IS DISMISSED. 3. GROUND NO.2 READS AS UNDER:- 2. THAT ON FACTS AND CIRCUMSTANCES OF THE CASE, TH E LEARNED CIT(A) HAS ERRED IN UPHOLDING THE DISALLOWANCE OF PAYMENT MADE TO SUB- CONTRACTORS OF RS.86,48,415/- U/S.40(A)(IA) AS MADE BY THE AO, WHICH IS ERRONEOUS AND NEEDS TO BE DELETED IN THE I NTEREST NATURAL JUSTICE AND EQUITY. ITA NO.643/AHD/2009(BY ASSESSEE) & ITA NO.748/AHD/2009 (BY REVENUE) BMS PROJECTS PVT.LTD. VS. DY.CIT ASST.YEAR - 2005-06 - 5 - 3.1. FROM THE ORDER OF THE AO, IT WAS NOTICED THAT IN RESPECT OF AS MANY AS 76 PARTIES, THE AO HAD CONDUCTED THE ENQUIR Y AND ALSO CALL FOR THE INFORMATION U/S.133(6) OF IT ACT. AO HAD MAD E A CHART OF THE RESULT OF THE ENQUIRY CONDUCTED U/S.133(6) OF IT ACT AND I N THE COLUMN OF EACH PARTY, THE OUTCOME OF THE ENQUIRY WAS NOTED BY HIM. THE SAID COLUMN THUS REMARKED THAT IN MOST OF THE CASES, THE NOTICE WAS SERVED BUT THERE WAS NO COMPLIANCE. IN FEW CASES, THE NOTICE WAS RETURNED WITH THE REMARK NOT KNOWN. ONLY IN RESPECT OF THREE PART IES, THE EXPLANATION OR THE DETAILS OF THE PAYMENT WAS NOTED BY THE AO. T HERE WAS A REPORT OF THE INSPECTOR WHO HAS INFORMED THAT IN RESPECT OF S OME OF THE PARTIES, IT WAS FOUND THAT THEY HAVE VACATED THE PREMISES AND T HEY HAVE NEVER WORKED FROM THEIR RESIDENTIAL PREMISES AND THAT NOB ODY HAD RECOGNIZED THOSE PARTIES IN THEIR VICINITY. ACCORDING TO HIM, THOSE PARTIES WERE BOGUS PARTIES. IN THE ASSESSMENT ORDER, THEREAFT ER, THERE WAS A MENTION OF SEVERAL OTHER NOTICES. ACCORDING TO AN ANOTHER CHART WHICH WAS ALSO REPRODUCED BY THE AO; THE ASSESSEE HAS INFORMED PAN , ADDRESS, JURISDICTION OF THE AO AND THE AMOUNT PAID TO 76 PA RTIES TOTALLING TO RS.2,78,81,957/-. HOWEVER, AO WAS NOT CONVINCED W ITH THAT REPLY PRIMARILY BECAUSE OF THE REASON THAT IN RESPECT OF SEVERAL PARTIES, THE ADDRESSES GIVEN WAS IDENTICAL AND THOSE PARTIES WER E REGISTERED FROM THAT SINGLE PLACE. IN HIS OPINION, THE SAME ADDRESS OF THOSE PARTIES WAS TOO MUCH OF A CO-INCIDENCE. THE AO HAD ALLEGED THAT TH OSE ENTITIES WERE USED BY THE ASSESSEE TO DIVERT THE FUNDS. THEREFO RE, THE AO HAD DIRECTED THE ASSESSEE TO PRODUCE THOSE PARTIES AS WITNESS. O N ACCOUNT OF EITHER PART COMPLIANCE OR NON-COMPLIANCE, THE AO HAD OPINED THA T THERE WAS A DELIBERATE ATTEMPT ON THE PART OF THE ASSESSEE TO A VOID THE PROCEEDINGS, ITA NO.643/AHD/2009(BY ASSESSEE) & ITA NO.748/AHD/2009 (BY REVENUE) BMS PROJECTS PVT.LTD. VS. DY.CIT ASST.YEAR - 2005-06 - 6 - HENCE IT HAD POSED A SERIOUS QUESTION ABOUT THE IDE NTITY AND THE GENUINENESS OF THE EXPENDITURE. THE CONCLUSION OF THE AO WAS LIKE THIS. IN THE ABSENCE OF ANY COGENT EVIDENCES REGARDING T HE IDENTITY OF THE MAJORITY OF THE TRANSACTING PARTIES, GENUINITY OF THE TRANSACTIONS (RENDERING OF SERVICES) IN RETURN FOR WHICH THE EXPENSES ARE BEING CLAIMED, THE EXPENSE CLAIM OF RS .3,41,38,500 ARE DISALLOWED AND THE INCOME OF THE ASSESSEE FOR T HE A.Y. 2005-06 IS RECOMPUTED ACCORDINGLY. IN VIEW OF ALL THE ABOV E, I AM ALSO SATISFIED THAT ASSESSEE HAS FURNISHED INACCURATE PA RTICULARS OF INCOME TO THE EXTENT DISCUSSED ABOVE. THEREFORE, P ENALTY PROCEEDINGS U/S.271(1)(C) OF THE IT ACT, 1961 ARE B EING INITIATED AGAINST THE ASSESSEE. ( DISALLOWANCE OF RS.3,41,38,500 ) 3.2. SIDE BY SIDE, THE AO HAS ALSO INVOKED THE PROVISIONS OF SECTION 40(A)(IA) AND NOTED THAT THERE WAS A DEFAULT IN TDS PAYMENT. IT WAS NOTED THAT THE TDS AMOUNT OF RS.47,09,743/- WAS ALT HOUGH DEDUCTED BUT BELATEDLY DEPOSITED. HENCE, THE AO HAD GIVEN AN AN OTHER REASON FOR THE DISALLOWANCE OF THE SAID AMOUNT AS FOLLOWS:- HENCE, WITHOUT PREJUDICE TO THE INVESTIGATION AS C ONDUCTED ABOVE THE ASSESSEE ALSO COMMITTED A DEFAULT IN TERMS OF T HE SECTION 40(IA) OF THE IT ACT, 1961. THE AMOUNTS IN RESPECT OF SUC H PAYMENT ARE DISALLOWED AND ADDED BACK TO THE INCOME OF THE ASSE SSEE. SHOW CAUSE NOTICE ISSUED U/S.271(1)(C) R.W.S. EXPLANATIO N 1 OF THE IT ACT, 1961 FOR FURNISHING INACCURATE PARTICULARS OF THE I NCOME / CONCEALMENT OF INCOME. ( ADDITION RS.3,41,38,500 ) 4. WHEN THE MATTER WAS CARRIED BEFORE THE FIRST APP ELLATE AUTHORITY A DETAILED SUBMISSION WAS MADE. THE FOREMOST ARGUME NT OF THE ASSESSEE ITA NO.643/AHD/2009(BY ASSESSEE) & ITA NO.748/AHD/2009 (BY REVENUE) BMS PROJECTS PVT.LTD. VS. DY.CIT ASST.YEAR - 2005-06 - 7 - WAS THAT ONCE TDS WAS DEDUCTED ON PAYMENT TO SUB-CONTRACTORS AND THEIR PAN DETAILS WERE FURNISHED, THEN IT WAS FACTU ALLY WRONG ON THE PART OF THE AO TO HOLD THOSE PARTIES AS BOGUS PARTI ES. BEFORE LD.CIT(A), IT WAS ALSO ALTERNATIVELY CLAIMED THAT T HE TDS WAS DEPOSITED WITHIN THE PRESCRIBED TIME. ONE OF THE CHART FOR REFERENCE IS REPRODUCED BELOW:- SR.NO. DATE AMOUNT IN RS. 1 05.06.2004 5,451 2 05.06.2004 28,733 3 24.07.2004 7,800 4 24.05.2005 2,23,057 5 24.05.2005 20,300 6 24.05.2005 13,060 4.1. THEREAFTER, THE ASSESSEE HAS DESCRIBED THE CO MPLIANCE MADE BEFORE THE AO. IT WAS CONTESTED THAT THE SIGNED RECEIPTS, BILLS, DETAILS OF WORK DONE, CONFIRMATION OF ENGINEER AS ALSO DETAILS OF P AYMENT WERE MADE AVAILABLE TO THE AO, THEREFORE, THERE WAS NO OCCASION TO DISBELIEVE ALL THOSE EVIDENCES. AN INFORMATION HAS ALSO BEEN GIV EN TO LD.CIT(A) ABOUT THE PRESENT RESIDENTIAL ADDRESSES OF THOSE SUB-CONT RACTORS. OUT OF THE TOTAL AMOUNT OF RS.3,41,38,500/-, THE ASSESSEE HAD MADE THE PAYMENT TO SUB-CONTRACTOR AMOUNTING TO RS.2,75,07,645/-. IT WAS FURTHER ELABORATED THAT ONLY BALANCE AMOUNT OF RS.66,30,855/- REMAINED OUTSTANDING AT THE CLOSE OF THE ACCOUNTING PERIOD AS PER THE BALANCE-S HEET FILED. BECAUSE OF CERTAIN INFORMATION AND EVIDENCES PLACED BEFORE LD. CIT(A), A REMAND REPORT WAS CALLED FOR WHICH WAS FURNISHED BY THE AO DATED 14.11.2008. ITA NO.643/AHD/2009(BY ASSESSEE) & ITA NO.748/AHD/2009 (BY REVENUE) BMS PROJECTS PVT.LTD. VS. DY.CIT ASST.YEAR - 2005-06 - 8 - A SUPPLEMENTARY REMAND REPORT HAS ALSO BEEN FURNISH ED DATED 15.12.2008. ON THE BASIS OF THE REMAND REPORTS, LD.CIT(A) HAS FINALLY CONFINED HIS JUDGEMENT ON THE ISSUE OF THE APPLICAB ILITY OF THE PROVISIONS OF SECTION 40(A)(IA). ON THE BASIS OF THE DETAIL S OF TDS FURNISHED BY THE ASSESSEE, LD.CIT(A) HAD COMMENTED AT ONE PLACE AS U NDER:- 2.3.3 WITH RESPECT TO THE DISALLOWANCE U/S.40(A)(I A) THE A.O. HAS STATED IN THE REMAND REPORT AS UNDER:- THE CLAIM OF THE ASSESSEE HAS BEEN VERIFIED. DURIN G THE COURSE OF ORIGINAL ASSESSMENT PROCEEDINGS, THE DETA IL OF TDS HAS NOT BEEN SUBMITTED BY THE ASSESSEE. HOWEVER, DURING THE COURSE OF THE REMAND PROCEEDING S THE DETAIL AS CLAIMED BY THE ASSESSEE HAS BEEN SUBMITTE D BEFORE ME WHICH HAS BEEN VERIFIED AND FOUND TO BE IN ORDER AS SUMMARIZED IN THE ABOVE TABLE. HOWEVER, SINCE THE ABOVE FACTS AND EVIDENCES WERE N OT BROUGHT ON RECORD BY THE ASSESSEE IN THE ORIGINAL ASSESSMENT, AND IN ABSENCE OF ANY DETAIL OR EXPLANA TION, THE SAID EXPENSES HAD TO BE DISALLOWED. IT CAN ALSO BE SEEN FROM THE ABOVE TABLE THAT AN AM OUNT OF RS.86,48,415 IN FORM OF SUB CONTRACT EXPENSES UPTO FEBRUARY, 2005 ON WHICH TDS WAS NOT DEPOSITED IN TH E GOVERNMENT ACCOUNT BEFORE THE DUE DATE. THE AR HAS TRIED TO MAKE ARTIFICIAL DISTINCTION AS REGARDS TO THE WO RD PAID AND PAYABLE. IT MUST BE NOTED THAT PAID INCLUDES P AYABLE. HENCE THE ABOVE AMOUNT OF RS.86,48,415 NEEDS TO BE DISALLOWED. 4.2. ADMITTEDLY A RECTIFICATION ALREADY TOOK PLACE IN THE PAST AND THE FIGURES FOR DISALLOWANCE PURPOSE HAVE BEEN REVISED BY THE A.O. HIMSELF. THUS, WE HAVE BEEN INFORMED THAT ONLY AN AMOUNT OF RS.2,63,83,486/- ITA NO.643/AHD/2009(BY ASSESSEE) & ITA NO.748/AHD/2009 (BY REVENUE) BMS PROJECTS PVT.LTD. VS. DY.CIT ASST.YEAR - 2005-06 - 9 - REMAINED TO BE EXPLAINED INSTEAD OF THE AMOUNT OF R S.2,78,81,957/-. UPTO THAT EXTENT, THERE WAS NO DISPUTE AMONG THE PA RTIES BEFORE US. 4.3. ABOUT THE VERIFICATIONS AS ALSO CONFIRMATIONS, AT ONE PLACE, IT WAS INFORMED TO LD.CIT(A) IN RESPECT OF SOME OF THE PAR TIES, IN THE FOLLOWING MANNER:- (II) AS REGARDS THE AMOUNT OF RS.44,65,543/- FOR WHICH T HE CONFIRMATIONS WERE NOT RECEIVED UPTO THE FINALIZATI ON OF THE REMAND REPORT, IT MAY BE NOTED THAT OUR COMPANY HAS TILL DATE RECEIVED CONFIRMATION OF RS.38,68,664/- AS DETAILED IN THE FOLLOWING TABLE SR.NO. NAME OF THE SUB- CONTRACTOR AMOUNT (RS.) 1. AAKASH DEVELOPERS 13,38,897 2. ASHOK MEHTA 4,62,743 3. DASARATH UROUN 1,99,523 4. DEVINDRA A.MUDDAGI 2,78,466 5. DINESH JAYRAMBHAI 1,56,337 6. MUKTIPADA MANJI 7,08,916 7. MAHADEV MAHTO 2,10,968 8. M.KHAN CONSTRUCTION 2,82,886 9. OM SAI CONSTRUCTION 2,29,928 TOTAL 38,68,664 4.4. ON THE BASIS OF EXPLANATION FURNISHED AND CONS IDERING THE FURNISHING OF PAN, CONFIRMATIONS AND OTHER SUPPORTI NG EVIDENCES, IT WAS DECIDED BY LD.CIT(A) TO DECIDE THE ISSUE IN RESPECT OF THE OTHER REASON OF DISALLOWANCE, I.E. INVOCATION OF THE PROVISION OF SECTION 40(A)(IA). IN SHORT, THE EXPLANATION OF THE ASSESSEE AFTER FURNIS HING OF TDS DETAILS WAS AS UNDER:- ITA NO.643/AHD/2009(BY ASSESSEE) & ITA NO.748/AHD/2009 (BY REVENUE) BMS PROJECTS PVT.LTD. VS. DY.CIT ASST.YEAR - 2005-06 - 10 - IN THE CASE OF OUR COMPANY, OUT OF THE AMOUNT OF RS.3,41,38,500/-, AN AMOUNT OF RS.2,75,07,645/- WAS PAID ON OR BEFORE 31-03-05 AND THE AMOUNT WHICH REMAINED PAYAB LE AS AT THE YEAR END WAS ONLY RS.66,30,855/- ON WHICH TDS HAS B EEN DEDUCTED AND PAID WITHIN TIME I.E. BEFORE THE DATE OF FILLIN G THE RETURN OF INCOME. 4.5. WE HAVE NOTED THAT ON PAGE 20, THE LD.CIT(A) HAS REPRODUCED A TABLE THROUGH WHICH THE RESULT OF THE REMAND REPORT AS ALSO THE EXPLANATION OF THE ASSESSEE WAS SUMMARIZED AS UNDER :- SR.NO. PARTICULARS AMOUNT (RS.) REMARKS 1. SUB CONTRACTOR EXPENSES BELOW RS.20,000/- TO EACH PARTY 10,94,417 SINCE THE VALUE OF EACH CONTRACT REMAINED BELOW RS.20,000/- AND THE AGGREGATE VALUE OF THE CONTRACTS DURING THE YEAR REMAINED BELOW RS.50,000/-. NO DEDUCTION AT TAX AT SOURCE IS REQUIRED TO BE MADE. DETAILED STATEMENT SHOWING THE COMPLETE NAMES & ADDRESSES OF THE SUB-CONTRACTOR, NATURE OF WORK ASSIGNED TO THEM WAS SUBMITTED TO THE LD.AO DURING THE COURSE OF REMAND PROCEEDINGS. 2. SUB CONTRACT WITH M/S.A.INFRASTRUTURE LIMITED 49,39,000 A COPY OF THE CERTIFICATE ISSUED U/S.197(1) OF THE INCOME TAX ACT FOR NO DEDUCTION OF TAX AT SOURCE TO M/S.A.INFRASTRUCTURE LTD. WAS SUBMITTED TO THE AO DURING THE COURSE OF REMAND PROCEEDINGS AND HENCE THERE IS NO DEFAULT OF PROVISIONS OF SEC.40(A)(IA). 3. CREDIT/PAYMENT OF SUB CONTRACT 1,94,56,668 A STATEMENT SHOWING COMPLETE DETAILS OF ADDRESS, PAN AND TDS ITA NO.643/AHD/2009(BY ASSESSEE) & ITA NO.748/AHD/2009 (BY REVENUE) BMS PROJECTS PVT.LTD. VS. DY.CIT ASST.YEAR - 2005-06 - 11 - EXPENSES PERTAINING TO THE PERIOD FROM 1 ST MARCH TO 31 ST MARCH 2005 SUB TOTAL 2,54,90,085 SUBMITTED TO THE LD.AO DURING THE COURSE OF REMAND PROCEEDINGS AND ON GOING THROUGH THE SAID DETAILS IT WAS APPARENT THAT AS PER THE RETROSPECTIVE AMENDMENT AS PER SECTION 40(A)(IA) OF THE ACT, THE SUBJECT AMOUNT OF RS.1,94,56,668/- BECOMES CLEARLY ELIGIBLE FOR DEDUCTION SINCE THE TDS OF RS.2,03,948/- HAS BEEN PAID BY THE COMPANY ON 24-05- 2005 I.E. BEFORE THE DATE OF FILING RETURN OF INCOME U/S.139(1) OF THE ACT. TOTAL AMOUNT IN RESPECT OF WHICH THERE IS NO DEFAULT OF TDS CONSIDERING THE RETROSPECTIVE PROVISIONS OF TDS 4. SUB CONTRACT EXPENSES PERTAINING TO THE PERIOD FROM APRIL 2004 TO FEBRUARY 2005 ON WHICH TDS HAS BEEN PAID ON 24-05-2005 TOTAL 86,48,415 3,41,38,500 A STATEMENT SHOWING COMPLETE DETAIL OF ADDRESS, PAN, AMOUNT PAID AND TDS THEREON WAS SUBMITTED TO THE LD.AO DURING THE COURSE OF REMAND PROCEEDINGS 4.6. BECAUSE OF THE AFORESAID REMARK, THE ASSESSEE HAS CATEGORICALLY STATED THAT IN RESPECT OF THE DISALLOWANCE OF RS.86 ,48,415/-, THE TDS WAS PAID ON 24/05/2005, I.E. BEFORE THE FILING OF THE R ETURN, HENCE THAT AMOUNT SHOULD ALSO BE ALLOWED. THE CONCLUSION OF THE LD.CIT(A) WAS THAT THE AO HAD ACCEPTED THE TOTALLING MISTAKE THER EFORE INSTEAD OF RS.2,78,81,957/- THE CORRECT FIGURE WAS RS.2,63,83, 486/-, HENCE THE BALANCE OF RS.14,98,471/- WAS NOT TO BE ADDED IN TH E TOTAL INCOME. ITA NO.643/AHD/2009(BY ASSESSEE) & ITA NO.748/AHD/2009 (BY REVENUE) BMS PROJECTS PVT.LTD. VS. DY.CIT ASST.YEAR - 2005-06 - 12 - THEREAFTER, CONSIDERING THE SECOND REMAND REPORT, L D.CIT(A) HAS ARRIVED AT THE CONCLUSION THAT SUB-CONTRACT EXPENSE S OF RS.86,48,415/- WERE REQUIRED TO BE DISALLOWED BECAUSE TDS WAS NOT DEPOSITED AS PRESCRIBED U/S.40(A)(IA) AND THE ASSESSEE HAD MADE AN ARTIFICIAL DISTINCTION AS REGARDS TO THE WORD PAID AND PAYABLE. BECA USE OF THE SAID PART- RELIEF BOTH THE SIDES ARE BEFORE US. 5. FROM THE SIDE OF THE ASSESSEE, LD.AR MR. J.P.SHA H APPEARED AND ABOUT THE GENUINENESS OF THE CLAIM, HE HAS PLACED R ELIANCE ON PAGES 110 TO 130 OF THE PAPER-BOOK CONTAINING CONFIRMATIONS, ADDRESSES, DETAILS OF PAYMENT, PANS OF THE SUB-CONTRACTORS. THE ASSESSEE HAS ALSO PLACED RELIANCE ON THE DETAILS OF THE TDS DEDUCTED ON PAYMENT. A SHORT SUBMISSION IN WRITING HAS ALSO BEEN PLACED BEFORE U S, RELEVANT PARAGRAPHS REPRODUCED BELOW:- THE ASSESSING OFFICER DISALLOWED RS.3,41,38,500/- FOR TWO REASONS; (I) THAT THE PAYMENT IS NOT PROVED TO HAVE BEEN MADE FOR SUB-CONTRACT TO 76 SUB-CONTRACTORS AND (II) EVEN IF THE PAYMENT IS SO MADE, IT IS DISALLOWABLE U/S.40(A)(IA). THE ASS ESSEE PREFERRED AN APPEAL TO CIT(A) ON THE ABOVE ADDITION OF RS.3,4 1,38,500/-. THE CIT(A) IN PARA 2.5.5 OF HIS ORDER DISALLOWED RS .75,350/- PAID TO CONTRACTOR DINESH JAYRAMBHAI JETHWA AND DISALLOW ED RS.11,293/- PAID TO PRATIK CONSTRUCTION AS PAYMENTS NOT PROVED TO HAVE BEEN GENUINELY MADE TO THESE TWO PARTIES AS SU B-CONTRACTORS. THIS IS GROUND NO.1 IN ASSESSEES APPEAL OF RS.86,6 43/- (RS.75,350/- + RS.11,293/-) BEFORE THE TRIBUNAL. T HE CIT(A) ALLOWED AS GENUINE THE BALANCE OF RS.3,40,51,857/- AFTER THE DEDUCTION OF RS.86,643/- FROM THE TOTAL PAYMENT OF RS.3,41,38,500/-. HAVING DONE THAT IN PARA 2.5.5, HE TOOK UP THE ALTERNATIVE REASON OF DISALLOWANCE BY THE ASSESSING OFFICER VIZ. SEC.40(A)(IA). THE CIT(A) DISALLOWED RS.86,48,415/ - BEING ACTUAL ITA NO.643/AHD/2009(BY ASSESSEE) & ITA NO.748/AHD/2009 (BY REVENUE) BMS PROJECTS PVT.LTD. VS. DY.CIT ASST.YEAR - 2005-06 - 13 - PAYMENT TO SUB-CONTRACTORS ON WHICH TDS WAS NOT DEP OSITED IN THE GOVERNMENT ACCOUNT BEFORE THE DUE DATE FOR MAKING D EPOSIT. THUS, U/S.40(A)(IA) CIT(A) DISALLOWS RS.86,48,415/- WHICH IS GROUND NO.2 OF THE ASSESSEES APPEAL; WHEREAS THE B ALANCE REMAINING CAME TO BE ALLOWED, WHICH IS RS.2,54,03,3 42/-, WHICH IS THE ONLY GROUND OF THE DEPARTMENTS APPEAL. RS.2,5 4,03,342/- HAS BEEN ARRIVED AT BY DEDUCTING RS.86,643/- + RS.86,48 ,415/- FROM THE TOTAL PAYMENT OF RS.3,41,38,500/- MADE TO SUB-C ONTRACTORS. THE CIT(A) ADJUDICATED BY PARA 2.5.1 TO 2.5.5 OF HI S ORDER THE POINT OF GENUINENESS OF PAYMENT; WHEREAS THE CIT(A) DISPOSED OFF BY PARAS 2.5.6.1 AND 2.5.6.2 OF HIS ORDER THE POINT OF DISALLOWANCE U/S.40(A)(IA). NOW, AS HE RECORDS ON PAGE 36 OF HIS ORDER IN BOLD LETTERS, THE CIT(A) DISALLOWS RS.86,48,415/- BECAUSE THE TDS WAS NOT DEPOSITED IN THE GOVERNMENT ACCOUNT BEFORE THE DUE DATE FOR MAKING DEPOSIT THOUGH THE ACTUAL PAYMENT WAS MADE T O THE SUB- CONTRACTORS IN THE FINANCIAL YEAR. IN VIEW OF THE DECISION OF VIZAKAPATANAM BENCH (SB) OF THE TRIBUNAL IN MERILYN SHIPPING & TRANSPORTS VS. ADDL.CIT - (2012) 136 ITD 23, AS THE ABOVE AMOUNT OF RS.86,48,415/- IS PAID IN THE FINANCIAL YER TO T HE SUB- CONTRACTORS, THE SAME WILL NOT BE DISALLOWABLE. TH E SAME ALSO WILL NOT BE DISALLOWABLE BECAUSE AS NOTED AT THE BOTTOM OF PAGE 20 OF HIS ORDER BY CIT(A), THE TDS THEREON HAS BEEN PAID ON 25.4.2005 I.E. BEFORE THE DUE DATE OF THE FILING OF THE RETUR N BEING 31 ST OCTOBER 2005. THE CALCUTTA HIGH COURT IN AN UNREPORTED DEC ISION OF CIT VS. VIRGIN CREATIONS (NET COPY OF WHICH IS ENCLOSED HEREWITH) DECIDED THAT THE FIRST PROVISO TO THE SAID SUB-SECT ION INSERTED BY THE FINANCE ACT, 2010 IS RETROSPECTIVE. WE HAVE ALSO E NCLOSED TWO DECISIONS OF AHMEDABAD BENCH FOLLOWING THE ABOVE SP ECIAL BENCH DECISION OF THE TRIBUNAL AND THE ABOVE CALCUTTA HIG H COURT DECISION. REGARDING THE GROUND OF APPEAL OF THE DEPARTMENT PE RTAINING TO RS.2,54,03,342/-, THE CHALLENGE IS ON THE FINDING O F CIT(A) OF THIS BEING GENUINE PAYMENT. IN PARA 2.2.1 OF HIS ORDER, THE CIT(A) HAS RECORDED ELABORATE SUBMISSIONS OF THE ASSESSEE. IN PARA 2.3.1, HE ITA NO.643/AHD/2009(BY ASSESSEE) & ITA NO.748/AHD/2009 (BY REVENUE) BMS PROJECTS PVT.LTD. VS. DY.CIT ASST.YEAR - 2005-06 - 14 - HAS RECORDED THE FIRST REMAND REPORT OF THE ASSESSI NG OFFICER AND IN PARA 2.3.2 THE SECOND REMAND REPORT OF THE ASSES SING OFFICER. IN PARA 2.4.1, THE CIT(A) RECORDS THE SUBMISSION OF THE ASSESSEE ON FIRST REMAND REPORT STATING INTER ALIA THAT CONFIRM ATIONS WITH NAME, ADDRESS AND PAN NOS. IN RESPECT OF PAYMENTS OF ARO UND 3.32 CRORES HAVE BEEN SUBMITTED; WHEREAS IN PARA 2.4.3, THE CIT(A) GIVES A SUMMARY OF THE ASSESSEES COMMENTS AND STAR TS DISPOSING OFF THE MATTER IN PARA 2.5.1 TO 2.5.5 HOLDING THAT EXCEPT FOR THE AMOUNT OF RS.75,350/-AND RS.11,293/- TOTALLING RS.8 6,643/- THE BALANCE OF RS.3,40,51,857/- IS A GENUINE PAYMENT TO SUB- CONTRACTORS. 5.1. FURTHER, IN RESPECT OF THE ISSUE OF SECTION 40(A)(IA), RELIANCE WAS PLACED ON THE DECISION OF ITAT B BENCH AHMEDABAD PRONOUNCED IN THE CASE OF M/S.ZAM ZAM EXPORTS LTD. VS. ASST.CIT IN ITA NO.3258/AHD/2009 FOR A.Y. 2006-07 VIDE ORDER DATED 20.4.2012. 5.2. FROM THE SIDE OF THE REVENUE, LD.CIT-DR MR.D.P .GUPTA, HAS EMPHASIZED THAT THE FIRST REASON GIVEN BY THE AO WA S NON-VERIFICATION OF THE LABOUR EXPENSES. ONLY PART COMPLIANCE WAS MADE BY THE ASSESSEE, RATHER THE CONFIRMATIONS FURNISHED WERE DOUBTED BY THE AO. THE ASSESSEE HAS NOT FURNISHED THE COMPLETE DETAILS, HE NCE THE DISALLOWANCE WAS CORRECTLY MADE. THE AO HAS ALSO MADE THE SAID DISALLOWANCE BY INVOKING SECTION 40(A)(IA) BUT IT WAS AN ALTERNATE REASON FOR DISALLOWANCE. SINCE THE PAYMENT TO SUB-CONTRACT WAS NOT ESTABLISH ED, THEREFORE THE DISALLOWANCE WAS RIGHTLY MADE BY THE AO. LD.CIT-DR MR.D.P.GUPTA HAS ALSO PLACED ON RECORD THE WRITTEN SUBMISSIONS A S FOLLOWS:- GROUND NO.1 OF THE REVENUE AND GROUND NO.1 & 2 OF THE ASSESSEE:- ITA NO.643/AHD/2009(BY ASSESSEE) & ITA NO.748/AHD/2009 (BY REVENUE) BMS PROJECTS PVT.LTD. VS. DY.CIT ASST.YEAR - 2005-06 - 15 - DISALLOWANCE OF THE CLAIM OF SUB-CONTRACT EXPENSES OF RS.3,41,38,500/- WAS MADE BY THE ASSESSING OFFICER DUE TO NON VERIFICATION OF IDENTITY OF MAJORITY OF THE PARTIES , GENUINENESS OF THE TRANSACTIONS (RENDERING OF SERVICES) SHOWN WITH THEM AND ABSENCE OF INCURRING THE SAME WHOLLY AND EXCLUSIVEL Y FOR BUSINESS PURPOSES ETC. (PLEASE REFER PARA 3.1 TO 3.8 OF ASSE SSMENT ORDER). THE FINDINGS OF THE ASSESSING OFFICER ARE BASED UPO N THE REPORT OF INSPECTOR, OUTCOME OF THE NOTICES ISSUED TO SUB CON TRACTORS U/S.133(6) AND OTHER REASONS AS DISCUSSED IN PARA 3 .4 OF THE ASSESSMENT ORDER. 1) DURING THE ASSTT.PROCEEDINGS THE PARTYWISE DETA ILS OF 76 SUB CONTRACTORS INVOLVING THE CLAIM OF RS.2,78,81,957 W ERE FURNISHED BUT FOR THE BALANCE CLAIM OF RS.77,50,014 NO DETAIL S WERE FURNISHED. THE CLAIM OF RS.2,78,81,957 WAS FURTHER CORRECTED TO RS.2,63,83486 BY REDUCING THE EXPENSES OF RS.14,36, 252 IN RESPECT OF TRANSPORTATION CHARGES AND RS.38,344/- DUE TO MI NOR MISTAKES WRONGLY INCLUDED THEREIN. (PLEASE REFER PAGE 2 TO 3 OF REMAND REPORT DATED 14.11.2002 & PAGE 30 PARA 2.5.1 OF CIT (A) ORDER. THUS DISALLOWANCE WAS MADE BY THE A.O. ON MERITS OF THE CLAIM. 2) EVEN OTHERWISE ALSO THE AFORESAID PAYMENTS WERE LIABLE TO BE DISALLOWED IN VIEW OF THE PROVISIONS OF SECTIONS 40 A(IA) OF I.T. ACT AS HELD BY THE A.O. (PARA 4 TO 4.4 OF THE ASSESSMEN T ORDER) 3) MAJORITY OF THE CONFIRMATIONS OF THE SUB CONTRA CTORS WERE FILED ONLY BEFORE THE CIT(A) IN APPELLATE PROCEEDINGS WHI CH WERE THEREAFTER FORWARDED BY HIM TO THE ASSESSING OFFICE R. AS PER THE REMAND REPORT DATED 14.11.2008, CONFIRMATIONS FOR T HE CLAIM OF RS.2,74,02,767 (RS.65,22,661 AS PER CHART AT PAGE-1 ) + (RS.2,08,80,106 AS PER PAGE 3) HAVE BEEN FURNISHE D BY THE ASSESSEE. 4) SUBSEQUENTLY ALSO SOME CONFIRMATIONS OF THE SUB CONTRACTORS WERE FILED BEFORE THE CIT(A). AS PER REMAND REPORT SUBMITTED THEREUPON BY THE ASSESSING OFFICER DATED 15.12.2008 FURTHER CONFIRMATIONS FROM SUB CONTRACTORS TO THE TUNE OF R S.38,68,664 ITA NO.643/AHD/2009(BY ASSESSEE) & ITA NO.748/AHD/2009 (BY REVENUE) BMS PROJECTS PVT.LTD. VS. DY.CIT ASST.YEAR - 2005-06 - 16 - WERE FOUND TO BE FURNISHED. PLEASE REFER TO LAST P ARA AT PAGE 3 OF REMAND REPORT. 5) THUS TOTAL CONFIRMATIONS OF THE SUB CONTRACTORS FOR THE TOTAL CLAIM OF RS.3,12,71,431 (RS.2,74,02,767 + RS.38,68, 664) HAVE BEEN FURNISHED BEFORE THE CIT(A). 6) THUS EVEN THE CONFIRMATIONS OF THE REMAINING SU B CONTRACTORS FOR THE CLAIM OF RS.28,62,069 (RS.3,41,33,500 (2,63 ,83,486 + 77,50,014) 3,12,71,431) HAVE NOT BEEN EVEN FURNIS HED TILL COMPLETION OF THE APPELLATE PROCEEDINGS. 7) THE LD.CIT(A) CONFIRMED THE DISALLOWANCE OF CLA IM OF RS.75,350 OUT OF THE TOTAL CLAIM OF RS.1,56,337 IN RESPECT OF SHRI DINESH J.JETHWA AND RS.11,293 OUT OF THE TOTAL CLAI M OF RS.24570 IN RESPECT OF M/S.PRATIK ENTERPRISES BECAUSE OF DEN IAL RECEIVED FROM SAID PARTIES. THE BALANCE OF THE TOTAL CLAIM IN RESPECT OF ABOVE I.E. RS.80,987 IN RESPECT OF SHRI DINESH J.JE THWA AND RS.13,277 IN RESPECT OF M/S.PRATIK ENTERPRISES HAS BEEN DISALLOWED IN VIEW OF THE PROVISIONS OF SECTION 40A(IA) OF I.T . ACT (PAGE NO.37, PARA 2.6 & PAGE 31, PARA 2.5.2 AND PAGE 33, PARA 2. 5.4.5 OF CIT(A)S ORDER). THE REMAINING DISALLOWANCE MADE ON MERITS WERE DELETED BY LD CIT(A) GIVING FINDINGS AT PAGE 34 & 35, PARA 2.5.4.6 AND 2.5.5 IN ITS ORDER. THE LD.CIT(A) ERRED EVEN NOT CONFIRMING THE DISALLO WANCE OF THE FULL AMOUNTS OF EACH OF BOTH THE PARTIES ON MERITS IN SPITE OF THEIR DENIAL OF DOING ANY WORKS CARRIED OUT BY THEM. 8) ON THE ALTERNATE PLEA OF THE ASSESSING OFFICER I.E. INVOKING OF PROVISIONS OF SECTION 40A(IA) OF I.T. ACT, THE LD.C IT(A) HAS CONFIRMED THE DISALLOWANCE TO THE TUNE OF RS.86,48, 415 INCLUDING THE DISALLOWANCE OF SHRI DINESH JETHWA AND M/S.PRAT IK ENTERPRISES AS MENTIONED IN PRECEDING PARA (PAGE 36 -37 PARA 2.5.67 AT CIT(A)S ORDER). 9) AS CAN BE APPARENTLY SEEN FROM DISCUSSIONS IN AS SESSMENT ORDER THAT DURING THE COURSE OF ASSESSMENT PROCEEDI NGS IN VIEW OF ITA NO.643/AHD/2009(BY ASSESSEE) & ITA NO.748/AHD/2009 (BY REVENUE) BMS PROJECTS PVT.LTD. VS. DY.CIT ASST.YEAR - 2005-06 - 17 - VARIOUS DEFECTS NOTICED IN PROCESS OF VERIFICATION OF GENUINENESS OF CLAIM, THE REQUIREMENTS OF THE ASSESSING OFFICER FR OM THE ASSESSEE WERE AS UNDER:- (I) PRODUCTION OF SUB CONTRACTORS ALONG WITH BOOKS OF ACCOUNTS ETC. BUT ASSESSEE CHOSEN NOT TO PRODUCE THE THEM. (PARA 3.5 TO 3.6 OF ASSESSMENT ORDER). (II) AGAIN THE ASSESSEE WAS ASKED TO PRODUCE THE S UB CONTRACTORS WITH THEIR BOOKS OF ACCOUNTS AND RELEVANT DETAILS L IKE RETURN OF INCOME FOR LAST THREE YEARS, BANK ACCOUNTS, STATEME NT OF INCOME, PROFIT AND LOSS ACCOUNT, BALANCE SHEET AND AUDIT RE PORT VIDE SHOW CAUSE NOTICE ISSUED ON 12.11.2007 (PARA 3.6 OF THE ASSESSMENT ORDER). IN THE AFORESAID SHOW CAUSE, IT WAS ALSO C OMMUNICATED THAT IN ABSENCE OF THE COMPLIANCE, THE SUB CONTRACT ORS WILL BE TREATED AS ITS BENAMI AND PAYMENTS MADE TO THEM WIL L BE ADDED BACK. HOWEVER, NO COMPLIANCE FROM THE ASSESSEE WAS RECEIVED. 10) HERE IT IS SUBMITTED THAT SIMPLY FILING OF CON FIRMATIONS THAT TOO EVEN NOT BEFORE THE ASSESSING OFFICE BUT BEFORE THE CIT(A) IN APPELLATE PROCEEDINGS DID NOT MEET THE ORIGINAL REQ UIREMENTS MADE DURING THE ASSESSMENT PROCEEDINGS I.E. PRODUCTION O F THE SUB CONTRACTORS WITH RELEVANT DETAILS AND DOCUMENTS IN VIEW OF THE VARIOUS DEFECTS NOTICED AS DISCUSSED IN THE ASSESSM ENT ORDER. MERELY FILING OF THE CONFIRMATIONS DID NOT ESTABLIS H THE ASSESSEES CLAIM AS GENUINE. REFERENCE MAY KINDLY BE TAKEN TO THE OBSERVATIONS OF THE A.O. AT LAST PARA AT PAGE 9 & 1 0 OF ITS REMAND REPORT DATED 14.11.2008. MOREOVER THE CONFIRMATIONS OF THE SUB CONTRACTORS T O THE TUNE OF RS.28,62,069 HAVE NOT BEEN FURNISHED TILL THE COMPL ETION OF THE CIT(A)S PROCEEDINGS. THEREFORE, THE DISALLOWANCE MADE BY THE ASSESSING OFFICER BOTH ON ACCOUNT OF MERITS OF THE ISSUE AS WELL APPLICATION OF PROVISION OF SECTION 40A(IA) OF THE I.T. ACT DESERVES TO BE SUSTAINED. 6. WE HAVE HEARD BOTH THE SIDES AT LENGTH. WE HAV E ALSO PERUSED THE MATERIAL PLACED BEFORE US. AT THE OUTSET WE HAVE N OTED THAT OUR ATTENTION ITA NO.643/AHD/2009(BY ASSESSEE) & ITA NO.748/AHD/2009 (BY REVENUE) BMS PROJECTS PVT.LTD. VS. DY.CIT ASST.YEAR - 2005-06 - 18 - WAS DRAWN ON THE COMPARATIVE FIGURES OF PERCENTAGE OF GROSS PROFIT AND NET PROFIT WHICH WAS STATED TO BE HIGHER COMPARING THE PAST H ISTORY, WORKING REPRODUCED BELOW:- PARTICULARS FOR THE YEAR ENDED ON 31-03-2005 31-03-2004 31-03-2003 31-03-2002 JOB WORK INCOME (INCLUDING CLOSING STOCK OF WIP & MATERIALS SUPPLIED BY CLIENT) 134.144.959 158,153,309 83,879,409 132,111,501 LESS: MANUFACTURING EXPENSES (INCLUDING OPENING STOCK OF WIP & MATERIALS RECOVERY BY CLIENT) 116,128,114 143,579,064 73,047,711 117,112,680 GROSS PROFIT (RS.) 18,016,845 14,574,245 10,831,6 98 14,998,821 GROSS PROFIT (IN %) 13.43% 9.22% 12.91% 11.35% NET OPERATING PROFIT BEFORE DEPRECIATION & TAX (RS.) 8,266,834 6,463,358 5,997,852 7,701,079 NET PROFIT (IN %) 6.16% 4.09% 7.15% 5.83% 6.1. THERE WAS A FIGURE WHICH WAS RECTIFIED AND THE DISALLOWANCE WHICH WAS REQUIRED TO BE MADE AS PER THE ASSESSMENT ORDER WAS ACTUALLY RS.2,63,83,486/-. OUT OF WHICH, THE ASSESSEE HAS F URNISHED THE CONFIRMATION OF THE PARTIES TOTALLING TO RS.2,08,80 ,106/-. IN RESPECT OF THE BALANCE AMOUNT OF RS.44,65,543/-, THE ASSESSEE HAS FURNISHED THE ITA NO.643/AHD/2009(BY ASSESSEE) & ITA NO.748/AHD/2009 (BY REVENUE) BMS PROJECTS PVT.LTD. VS. DY.CIT ASST.YEAR - 2005-06 - 19 - TDS DETAILS, HOWEVER CONFIRMATIONS COULD NOT BE FUR NISHED AT THAT TIME OF PROCEEDINGS. SO THE ASSESSEE HAS MADE A REQUEST TO ISSUE LETTERS U/S.133(6) TO THOSE PARTIES. ALTHOUGH AT THE ASSES SMENT STAGE THE COMPLIANCE FROM THE SIDE OF THE ASSESSEE WAS NOT CO MPLETE BUT DURING THE APPELLATE PROCEEDINGS THE SUBSTANTIAL COMPLIANCE WA S MADE AND, THEREFORE, LD.CIT(A) HAD THOUGHT IT PROPER TO CALL FOR THE REMAND REPORTS. MEANING THEREBY THE REVENUE DEPARTMENT HA D AGAIN BEEN GIVEN AN OPPORTUNITY FOR VERIFICATION OF THE CLAIM. THE FIRST AND SECOND REMAND REPORTS ARE DULY APPRECIATED BY LD.CIT(A). ON APPRECIATION OF THE EVIDENCES FILED BY THE ASSESSEE, IT WAS CONCLUD ED BY HIM THAT THE LABOUR EXPENSES HAVE ACTUALLY BEEN INCURRED BARRING FEW PARTIES FOR SMALL PAYMENTS AS DISCUSSED IN GROUND NO.1 SUPRA. THE M AIN REASON AS ASSIGNED BY LD.CIT(A) WAS INFRINGEMENT OF THE PROVI SIONS OF SECTION 40(I)(A). THAT TOO WAS RESTRICTED TO AN AMOUNT OF RS.86,48,415/-. WE HAVE EXAMINED THE REASON OF PART-CONFIRMATION OF AD DITION AS GIVEN BY LD.CIT(A). AS FAR AS THE QUESTION OF THE WORD PAI D AND PAYABLE IS CONCERNED, WE DO NOT WANT TO COMMENT ON THIS LEGAL CONTROVERSY BECAUSE THE SAME IS NOT YET SETTLED AND THIS CONTROVERSY IS STILL TO BE DECIDED BY THE HONBLE HIGH COURT. LEAVE THIS APART, OTHERWISE ALSO, THE ASSESSEE HAS PLACED ON RECORD THE INFORMATION ABOUT THE DEPO SIT OF TDS. THE MAIN PLANK OF ARGUMENT OF LD.AR WAS THAT THE TDS I N RESPECT OF THE SAID AMOUNT HAD ACTUALLY BEEN PAID ON 24/05/2005, I.E. B EFORE THE DUE DATE OF THE FILING OF THE RETURN BEING 31/10/2005. IN SUPP ORT OF THIS CLAIM, RELIANCE WAS PLACED ON M/S.ZAM ZAM EXPORTS LTD.(SUP RA), WHEREIN THE TRIBUNAL HAS PLACED RELIANCE ON A DECISION OF HONB LE CALCUTTA HIGH COURT, NAMELY CIT VS. VIRGIN CREATIONS (CIVIL NO. I TA 302 OF ITA NO.643/AHD/2009(BY ASSESSEE) & ITA NO.748/AHD/2009 (BY REVENUE) BMS PROJECTS PVT.LTD. VS. DY.CIT ASST.YEAR - 2005-06 - 20 - 2011/GA/3200/2011 ORDER DATED 23.11.11) AND HONBLE GUJARAT HIGH COURT DECISION DATED 18/07/2011 IN TAX APPEAL NO.70 6 OF 2010 IN THE CASE OF CIT VS. M/S.J.K.CONSTRUCTION CO. IN THE LI GHT OF THE UNDISPUTED FACT THAT THE TDS WAS DEPOSITED AS PRESCRIBED UNDER LAW BEFORE THE DUE DATE OF FILING OF RETURN, HENCE THE DISALLOWANCE TO THE EXTENT OF RS.86,48,415/- FOR ALLEGED INFRINGEMENT OF SECTION 40(A)(IA) HAS TO BE REVERSED. IN THE RESULT, GROUND NO.2 OF THE ASSESSEE IS HEREBY ALLOWED. 6. GROUND NO.3 READS AS UNDER:- 3. THAT ON FACTS AND CIRCUMSTANCES OF THE CASE, T HE LEARNED CIT(A) HAS ERRED IN UPHOLDING THE DISALLOWANCE OF RS.5,33,909/- OUT OF MANUFACTURING AND ADMINISTRATIVE EXPENSES FOR WANT OF BILLS OR EVIDENCES, WHICH IS ERRONEOUS AND NEEDS TO BE DELETED IN THE INTEREST NATURAL JUSTICE AND EQUITY. 6.1. THE ASSESSEE HAS CLAIMED MANUFACTURING AND ADM INISTRATIVE EXPENSES RESPECTIVELY OF RS.11.61 CRORES AND RS.75. 55 LACS. ON ACCOUNT OF PART COMPLIANCE, IT WAS NOTED BY THE AO THAT IN RESPECT OF CERTAIN EXPENDITURE, THE ASSESSEE HAD FAILED TO PRODUCE THE BILLS/VOUCHERS ON THE GROUND THAT RELATED FILES WERE MISPLACED. IN THE OPINION OF THE AO, HE HAD NO OPTION BUT TO DISALLOW CERTAIN PERCENTAGE OF NON-VERIFIABLE EXPENSES, HENCE HE HAS CONCLUDED AS UNDER: 6.4. THE ASSESSEE HIMSELF HAS ADMITTED THAT THE FI LE RELATED TO EXPENSES ARE NOT AVAILABLE AS PER THE ABOVE REPLY. IN VIEW OF THE SAME, 10% OF DISALLOWANCE IS BEING MADE OUT OF THE MANUFACTURING AND ADMINISTRATIVE EXPENSES RESPECTIV ELY AS THE RELEVANT BILLS/VOUCHERS AND EVIDENCES WERE NOT PUT ON RECORD. FROM THE MANUFACTURING EXPENSES ALREADY AN AMOUNT O F ITA NO.643/AHD/2009(BY ASSESSEE) & ITA NO.748/AHD/2009 (BY REVENUE) BMS PROJECTS PVT.LTD. VS. DY.CIT ASST.YEAR - 2005-06 - 21 - RS.3,41,38,500 OF THE SUB CONTRACTORS, RS.28,58,606 OF THE TRANSPORTATION CHARGES, WORKMAN INCENTIVES EXPENSES OF RS.1,56,000, RS.1,64,000 OF WORKMAN RETRENCHMENT EX PENSES AND RS.1,30,50,500 OF THE OPENING WORK IN PROGRESS HAS BEEN DISALLOWED. THE 10% OF THE REMAINING WILL BE RS.65 ,76,051. THE ADMINISTRATIVE EXPENSES ARE RS.75,52,241 AND THE 10 % OF THE SAME WILL BE RS.7,55,224. SHOW CAUSE NOTICE ISSUED U/S. 271(1)(C) R.W.S. EXPLANATION 1 OF THE IT ACT, 1961 FOR FURNISHING IN ACCURATE PARTICULARS OF THE INCOME / CONCEALMENT OF INCOME. 6.2. WHEN THE MATTER WAS CARRIED BEFORE THE FIRST APPELLATE AUTHORITY, THE DETAILS WERE FURNISHED WHICH WERE FORWARDED TO AO F OR HIS COMMENTS. LD.CIT(A) HAS CONSIDERED THE REMAND REPORT AS WELL. THE ASSESSEE HAS FURNISHED CERTAIN DETAILS ALONG WITH EVIDENCES ABOU T MANUFACTURING EXPENDITURE. HOWEVER, EVEN AT THE APPELLATE STAGE, THE SUPPORTING VOUCHER IN RESPECT OF AN EXPENDITURE AMOUNTING TO R S.5,33,909/- COULD NOT BE PRODUCED. DUE TO THIS REASON, THE DISALLOWA NCE WAS RESTRICTED TO THE SAID AMOUNT AS PER THE FOLLOWING OBSERVATIONS: 4.3. I HAVE CONSIDERED THE SUBMISSION MADE BY THE APPELLANT AND THE OBSERVATION OF THE A.O. FROM THE ABOVE, IT IS SEEN THAT THE APPELLANT DOES NOT ABLE TO BRING ANY SUPPORTING BIL LS OR EVIDENCE FOR THE VOUCHERS OF VARIOUS EXPENSES AMOUNTING TO R S.5,33,909/- EVEN DURING THE REMAND REPORT PROCEEDINGS. IN VIEW OF THE ABOVE REMAND REPORT OF THE A.O. AND COMMENTS OF THE APPEL LANT IT IS CLEAR THAT THE DISALLOWANCE IS RESTRICTED TO RS.5,33,909/ - AND THE APPELLANT HAS NO EXPLANATION FOR THE SAME. THE DIS ALLOWANCE OF RS.73,31,295/- IS RESTRICTED TO RS.5,33,909/-. THI S GROUND OF APPEAL IS, THEREFORE, PARTLY ALLOWED. 7. HAVING HEARD THE SUBMISSIONS OF BOTH THE SIDES, WE ARE OF THE VIEW THAT EVEN AT THE STAGE OF SECOND APPEAL, THE ASSESS EE WAS UNABLE TO FURNISH ITA NO.643/AHD/2009(BY ASSESSEE) & ITA NO.748/AHD/2009 (BY REVENUE) BMS PROJECTS PVT.LTD. VS. DY.CIT ASST.YEAR - 2005-06 - 22 - THE REQUIRED CORROBORATIVE EVIDENCES. IF AN EXPENDI TURE REMAINS UNSUPPORTED, THEN IN THE ABSENCE OF BILLS, VOUCHERS , ETC. THE REVENUE DEPARTMENT HAS NO OPTION BUT TO DISALLOW THE SAME. WE HAVE NOTED THAT THE MANNER IN WHICH THE APPELLATE PROCEEDINGS WERE CONDUCTED, THE CIT(A) HAD MADE IT CLEAR THAT INSTEAD OF AN ADHOC DISALLOWANCE BY APPLYING 10% RATIO, BETTER TO BE SPECIFIC, THUS HE HAD INVESTIGATED THE CORRECTNESS OF THE EXPENDITURE HIMSELF AND THEREUPO N ARRIVED AT THE CONCLUSION THAT THE ASSESSEE WAS NOT IN A POSITION TO SUBSTANTIATE THE EXPENDITURE UNDER THOSE TWO HEADS UPTO THE EXTENT O F RS.5,35,909/-. EVEN AT THE SECOND APPELLATE STAGE THE ASSESSES HAS FAI LED TO IMPROVE ITS CASE. RESULTANTLY, WE ARE OF THE VIEW THAT THE AFORESAID FINDINGS ON FACTS GIVEN BY LD.CIT(A) ARE REQUIRED TO BE AFFIRMED. WE HOLD ACCORDINGLY AND DISMISS THIS GROUND. 8. GROUND NO.4 READS AS UNDER: 4. THAT ON FACTS AND CIRCUMSTANCES OF THE CASE, TH E LEARNED CIT(A) HAS ERRED IN UPHOLDING THE DISALLOWANCE OF PAYMENT MADE FOR TRANSPORTATION CHARGES OF RS.11,36,949/- U/S.40(A)( IA) AS MADE BY THE AO, WHICH IS ERRONEOUS AND NEEDS TO BE DELETED IN THE INTEREST NATURAL JUSTICE AND EQUITY. 8.1. THE ASSESSEE HAS CLAIMED EXPENDITURE OF TRANS PORTATION CHARGES OF RS.28,58,606/- PLUS WORKMAN INCENTIVE EXPENSES O F RS.1,56,000 PLUS WORKMAN RETRENCHMENT EXPENSES OF RS.1,64,000 TOTALL ING TO RS.31,78,606/-. IN THE ABSENCE OF TDS DETAILS, TH E AO HAD INVOKED THE PROVISIONS OF SECTION 40(A)(IA) AND DISALLOWED THE SAME. WHEN THE MATTER WAS CARRIED BEFORE THE FIRST APPELLATE AUTHO RITY, IT WAS NOTED BY THE ITA NO.643/AHD/2009(BY ASSESSEE) & ITA NO.748/AHD/2009 (BY REVENUE) BMS PROJECTS PVT.LTD. VS. DY.CIT ASST.YEAR - 2005-06 - 23 - LD.CIT(A) THAT THE ASSESSEE HAD TAKEN THE ACTION OF DEDUCTION OF TDS IN THE FOLLOWING MANNER:- SR.NO. PARTICULARS AMOUNT (RS.) REMARKS 1. TRANSPORTATION EXPENSES BELOW RS.20,000/- 3,16,241 TDS PROVISIONS WOULD NOT BE ATTRACTED 2. TRANSPORTATION CHARGES PAID TO GOEL ROADWAY IN WHOSE CASE NIL TDS CERTIFICATE IS ISSUED 1,17,500 NO DEDUCTION CERTIFICATE ISSUED TO GOEL ROADWAYS BY I.T.DEPARTMENT IS SUBMITTED BY THE ASSESSEE. 3. TRANSPORTATION CHARGES FOR THE PERIOD FROM 01-03-05 TO 31-03-05 12,87,916 TDS PAID ON 24-05-2005 I.E. BEFORE THE DUE DATE OF FILING RETURN OF INCOME U/S.139(1) OF THE ACT WHICH IS WITHIN TIME AS PER THE AMENDED RETROSPECTIVE PROVISIONS OF SEC.40(A)(IA) OF THE ACT. SUB TOTAL 17,36,949 4. TRANSPORTATION CHARGES UPTO FEBRUARY 2005 11,36,949 THE DETAILS OF EXPENSES INCLUDING TDS THEREON SUBMITTED ( TDS PAYMENT WAS MADE ON 24-05-2005 I.E. NOT WITHIN THE DUE DATE ) TOTAL TRANSPORTATION CHARGES 28,58,606 8.2. SO THE CIT(A) HAS HELD THAT IN RESPECT OF TRAN SPORTATION CHARGES OF RS.11,36,949/- THE PAYMENT BEING MADE ON 24.5.2005, WHICH ACCORDING TO HIM WAS NOT WITHIN THE DUE DATES, HENCE AFFIRMED THE ADDITION. 9. HAVING HEARD THE SUBMISSIONS OF BOTH THE SIDES, WE HAVE NOTED THAT THE IMPUGNED AMOUNT OF TRANSPORTATION CHARGES WERE PAID UPTO FEBRUARY- 2005 AND THE TDS THEREUPON WAS UNDISPUTEDLY DEPOSIT ED ON 24.5.2005, I.E. BEFORE THE DUE DATE OF FILING OF THE RETURN. NOW THE POSITION OF LAW ITA NO.643/AHD/2009(BY ASSESSEE) & ITA NO.748/AHD/2009 (BY REVENUE) BMS PROJECTS PVT.LTD. VS. DY.CIT ASST.YEAR - 2005-06 - 24 - IS VERY WELL SETTLED AS PER THE HIGH COURT DECISION S CITED SUPRA. FOLLOWING THESE DECISIONS, WE HEREBY DIRECT TO DELE TE THE ADDITION. THIS GROUND IS ALLOWED. [B] REVENUES APPEAL, ITA NO.748/AHD/2009 10. THE SOLITARY GROUND IN THIS REVENUES APPEAL IS AS FOLLOWS:- (1) ON THE FACTS AND IN THE CIRCUMSTANCES OF THE C ASE AND IN LAW, THE LEARNED CIT(A)-I, SURAT HAS ERRED IN DELETING T HE ADDITION OF RS.2,54,03,342/- OUT OF ADDITION MADE BY A.O. OF RS .3,41,38,500/- ON ACCOUNT OF DISALLOWANCE OF UNEXPLAINED PAYMENTS MADE TO SUB- CONTRACTORS HOLDING THAT IN HIS REMAND REPORTS THE A.O. HAD ACCEPTED THAT THE GENUINENESS OF THE SO-CALLED TRAN SACTIONS IS VERIFIED BY HIM WHICH IS FACTUALLY TOTALLY INCORRE CT AS IN THE REMAND REPORT, IT WAS NOT SUBMITTED THAT GENUINENES S OF THE SO- CALLED TRANSACTIONS ARE FOUND TO BE GENUINE, BUT, I T WAS ONLY SUBMITTED THAT CONFIRMATORY LETTERS ONLY ARE FILED DURING THE COURSE OF REMAND REPORT PROCEEDINGS AND NO SUPPORTING DETA ILS SUCH AS BANK PASS BOOK, BOOKS OF ACCOUNTS AND I.T. ACT OF S O-CALLED PARTIES ARE FILED, IN ABSENCE OF WHICH, MERELY ON CONFIRMAT ORY LETTER BASIS, THE SO-CALLED TRANSACTIONS CANNOT BE CONSIDERED TO BE GENUINE OR MAY BE CONSIDERED AS STAND EXPLAINED. 10.1 FACTS GOVERNING THIS GROUND OF THE REVENUE HAS ALREADY BEEN DISCUSSED HEREINABOVE WHILE DECIDING GROUND NO.1 & 2 FROM THE ASSESSEES APPEAL(SUPRA). THE MAIN ARGUMENT OF LD. CIT-DR MR.GUPTA BEFORE US WAS THAT THE GENUINENESS OF THE PAYMENT W AS FULL OF DOUBT, THEREFORE THE ENTIRE EXPENDITURE WAS DISALLOWED BY THE AO. EVEN AT THE STAGE OF FIRST APPEAL, THE REMAND REPORT WAS CALLED FOR BUT THE ASSESSEE HAD FAILED TO DISCHARGE THE PRIMARY ONUS OF FILING THE REQUISITE EVIDENCES ITA NO.643/AHD/2009(BY ASSESSEE) & ITA NO.748/AHD/2009 (BY REVENUE) BMS PROJECTS PVT.LTD. VS. DY.CIT ASST.YEAR - 2005-06 - 25 - TO CORROBORATE THE GENUINENESS OF THE PAYMENT. THE REFORE, ACCORDING TO LD.DR ON THIS BASIS THE ENTIRE DISALLOWANCE SHOULD HAVE BEEN CONFIRMED BY LD.CIT(A). WE ARE NOT IN AGREEMENT WITH THIS AR GUMENT OF THE REVENUE DEPARTMENT. WE HAVE DISCUSSED IN DETAIL THE FACTS AND CIRCUMSTANCES OF THE CASE. IF ON ONE HAND, THE REVENUE DEPARTMENT HAS NOT DOUBTED THE DEDUCTION OF TDS AT SOURCE AND THE TAX COLLECTED UNDER THE TDS HEAD WAS ACCEPTABLE TO THE REVENUE DEPARTMENT, THEN THERE WAS NO REASON FOR DISBELIEVING THE GENUI NENESS OF THE PAYMENT ON WHICH ADMITTEDLY THE TDS WAS DEDUCTED BY THE ASSESSEE. AS FAR AS THE APPLICABILITY OF THE PROVISIONS OF SE CTION 40(A)(IA) IS CONCERNED, THE SAME HAS ALSO BEEN DULY CONSIDERED B Y US IN THE LIGHT OF THE PRECEDENTS CITED SUPRA. WE THEREFORE HOLD THAT THE GROUND RAISED BY THE REVENUE HAS NO LEGAL AS WELL AS FACTUAL FORCE, THEREFORE DISMISSED. 11. IN THE RESULT, ASSESSEES APPEAL IS PARTLY ALLO WED, WHEREAS REVENUES APPEAL IS DISMISSED. SD/- SD/- ( ! '# ) ( ) $% ( ANIL CHATURVEDI ) ( MUKU L KR. SHRAWAT ) ACCOUNTANT MEMBER JUDICIAL MEMBER AHMEDABAD; DATED 21 / 01 /2013 5..!, .!../ T.C. NAIR, SR. PS ITA NO.643/AHD/2009(BY ASSESSEE) & ITA NO.748/AHD/2009 (BY REVENUE) BMS PROJECTS PVT.LTD. VS. DY.CIT ASST.YEAR - 2005-06 - 26 - $4 1 .6 7$6) $4 1 .6 7$6) $4 1 .6 7$6) $4 1 .6 7$6)/ COPY OF THE ORDER FORWARDED TO : 1. *- / THE APPELLANT 2. ./*- / THE RESPONDENT. 3. 8 / CONCERNED CIT 4. 8() / THE CIT(A)-I, SURAT 5. 6;< .! , , / DR, ITAT, AHMEDABAD 6. < =0 / GUARD FILE. $4! $4! $4! $4! / BY ORDER, /6 . //TRUE COPY// > >> >/ // / + + + + ( DY./ASSTT.REGISTRAR) , , , , / ITAT, AHMEDABAD 1. DATE OF DIRECT DICTATION ON COMPUTER DATED 14.1.13 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER 15.1.13 OTHER MEMBER 3. DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR.P. S./P.S.. 4. DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE D ICTATING MEMBER FOR PRONOUNCEMENT 5. DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR.P .S./P.S 21/1/13 6. DATE ON WHICH THE FILE GOES TO THE BENCH CLERK 21/1/13 7. DATE ON WHICH THE FILE GOES TO THE HEAD CLERK . 8. THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT RE GISTRAR FOR SIGNATURE ON THE ORDER.. 9. DATE OF DESPATCH OF THE ORDER