Shri Lakhaji Piraji Vanzara, Baroda V. The Income tax Officer,Ward-2(1), Baroda

ITA 845/AHD/2009

• Counselvise Citation: 84520514 RSA 2009
• Duration Of Justice: 2 year(s) 10 month(s) 2 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 19-01-2012
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: D
• Next Hearing Date: 03-01-2012
• Assessment Year: 2005-2006
• Appeal Filed On: 17-03-2009
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: SUNIL H TALATI
• Assessee Lawyers: B L YADAV
• Keywords: Depreciation
• Section: 40A(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, D BENCH, AHMEDABAD BEFORE SHRI G. C. GUPTA, HONBLE VICE PRESIDENT AND SHRI A. K. GARODIA, ACCOUNTANT MEMBER I.T.A. NO.3073 / AHD/2008 (ASSESSMENT YEAR 2004-05) ITO, WARD 2(1), BARODA VS. M/S. LAKHAJI PIRAJI VANZARA, 5, PANCHVIJAY SOCIETY, BAJWA, DISTT. BARODA PAN/GIR NO. : AAAPL8586C I.T.A.NO. 3151, 3152/AHD/2008 (ASSESSMENT YEAR 2003 -04, 2004-05) & I.T.A.NO. 845/AHD/2009 (ASSESSMENT YEAR 2005-06) M/S. LAKHAJI PIRAJI VANZARA, VS. ITO, WARD 2(1), 5, PANCHVIJAY SOCIETY, BARODA BAJWA, DISTT. BARODA PAN/GIR NO. : AAAPL8586C (APPELLANT) .. (RESPONDENT) APPELLANT BY: SHRI B L YADAV, SR. DR RESPONDENT BY: SHRI SUNIL H TALATI, AR DATE OF HEARING: 03.01.2012 DATE OF PRONOUNCEMENT: 19.01.2012 O R D E R PER SHRI A. K. GARODIA, AM:- OUT OF THIS BUNCH OF FOUR APPEALS, THERE IS ONE AP PEAL OF THE ASSESSEE FOR THE ASSESSMENT YEAR 2003-04, THERE ARE CROSS APPEALS OF THE ASSESSEE AND THE REVENUE FOR THE ASSESSMENT YEAR 20 04-05 AND THE REMAINING ONE APPEAL IS OF THE ASSESSEE FOR THE ASS ESSMENT YEAR 2005-06. FOR THE SAKE OF CONVENIENCE, THESE APPEALS WERE HEA RD TOGETHER AND ARE BEING DISPOSED OF BY THIS COMMON ORDER. I.T.A.NO. /AHD/200 2 2. FIRST, WE TAKE UP THE APPEAL OF THE ASSESSEE FOR THE ASSESSMENT YEAR 2003-04 IN I.T.A.NO. 3151/AHD/2008. GROUND NO.1 OF THE APPEAL IS AS UNDER: 1. THE LEARNED C.IT. (APPEALS) HAS ERRED IN CONFIRMING THE DISALLOWANCE OF RS.35,200/- U/S. 40 A(2)(B) OF THE INCOME TAX ACT. THE APPELLANT SUBMITS THAT IT WAS EXPLAINED THAT TH E TRACTOR OF RELATED PERSONS WERE USED FOR COLLECTING THE LABOUR S AND TAKING THEM TO THE SITE AND TRANSPORTING THEM BACK TO THE CAMP. IT WAS THUS THAT THEY HAVE TO DEVOTE ADDITIONAL ONE HOUR F OR THIS TRIP EITHER WAY. IT WAS UNDER THIS CIRCUMSTANCE THAT MORE AMOUN T HAD TO BE PAID. THIS IS THE PRACTICE IN ALL THE YEARS IN PAST . IT IS THEREFORE SUBMITTED THAT THERE IS NO BASIS FOR MAKING ADDITIO N OF RS.35,200/- U/S. 40A(2)(B) OF-THE I.T. ACT AND THE SAME BE DELE TED. 3. AS PER GROUND NO.1, THE ASSESSEE IS DISPUTING RE GARDING DISALLOWANCE OF RS.35,200/- U/S 40A(2)(B) IN RESPEC T OF PAYMENT MADE BY THE ASSESSEE TO THE PARTNERS FOR HIRING THE TRACTOR S. 4. IT IS SUBMITTED BY THE LD. A.R. THAT THE A.O. IN PARA 4 OF THE ASSESSMENT ORDER, HAS STATED THAT HIRE CHARGES HAD BEEN PAID TO THE INDEPENDENT CONTRACTORS ALSO AND THERE IS DIFFERENC E BETWEEN THE PAYMENTS MADE TO OUTSIDE CONTRACTORS AND THE PARTNE RS AND ON THIS BASIS, HE HAS MADE DISALLOWANCE WITHOUT CONSIDERING THIS E XPLANATION OF THE ASSESSEE THAT THE RATES OF TRACTOR PER TRIP PAID BY THE ASSESSEE TO THE PARTNERS AND TO OUTSIDERS ARE THE SAME IF IT IS CAL CULATED ON PER HOUR BASIS AND BECAUSE THE TRACTORS OF THE PARTNERS WERE USED FOR MORE HOURS, THE PAYMENT TO THEM IS HIGHER. IN THIS REGARD, OUR ATT ENTION WAS DRAWN TO PAGE 85 OF THE PAPER BOOK AND IT WAS POINTED OUT TH AT THE TRACTORS HIRED FROM RELATED PERSONS WERE USED FOR 10/12/24 HOURS P ER DAY WHEREAS THE TRACTORS HIRED FORM UNRELATED PERSONS WERE USED FOR 8 HOURS PER DAY ONLY AND HENCE, PAYMENTS TO PARTNERS IS NOT EXCESSIVE OR UNREASONABLE. AS I.T.A.NO. /AHD/200 3 AGAINST THIS, LD. D.R. OF THE REVENUE SUPPORTED THE ORDERS OF AUTHORITIES BELOW. 5. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS, PERUSE D THE MATERIAL ON RECORD AND HAVE GONE THROUGH THE ORDERS OF AUTHORIT IES BELOW. WE FIND THAT THIS SUBMISSION WAS MADE BY THE ASSESSEE BEFOR E THE A.O. ALSO BUT THE SAME WAS REJECTED BY THE A.O. ON THIS BASIS THA T NO DOCUMENT WAS PRESENTED FOR SUBSTANTIATING THE SAME. WE FEEL THA T ONCE THE SUBMISSION WAS MADE, THE A.O. SHOULD HAVE CALLED FOR THE BILLS ETC AND MIGHT HAVE EXAMINED THE CONCERNED PARTNERS AND OUTSIDERS TO UN EARTH THE TRUTH BEFORE ALLEGING THAT THE PAYMENT MADE BY THE ASSESSEE TO T HE PARTNERS IS EXCESSIVE AND UNREASONABLE. IN THE ABSENCE OF ANY MATERIAL BEING BROUGHT ON RECORD BY THE A.O. IN SUPPORT OF THIS ALLEGATION THAT THE AMOUNT PAID BY THE ASSESSEE TO THE PARTNERS IS UNREASONABLE AND EX CESSIVE, DISALLOWANCE MADE BY HIM IS NOT SUSTAINABLE. THIS GROUND OF THE ASSESSEE IS ALLOWED. 6. GROUND NO.2 OF THE APPEAL IS AS UNDER: 2. THE LEARNED C.I.T.(APPEALS) HAS ERRED IN CONFIRMING THE DISALLOWANCE OF INTEREST PAYMENT MADE IN RESPECT OF AMOUNTS ADVANCED TO M/S. BHAGYODAYA TILES FACTORY AND SHRI MAHALAXMI QUARRY WORKS. IT IS SUBMITTED THAT THE AMOUNTS HAD TO BE USUALLY GIVEN. IN THE CASE OF M/S. BHAGYODAYA TILES FACTORY THE AMOUNT ALREADY GIVEN WAS RS.4,48,000/- IN THE PREVIOUS YEA R AND BALANCE AMOUNT WAS GIVEN IN THIS YEAR MAKING TOTAL OF RS.10 ,34,659/-. THESE PAYMENTS WERE GIVEN AS MENTIONED ABOVE FOR TH E PURPOSE OF THE BUSINESS AND AS SUBMITTED ABOVE FOR ALL THE YEA RS IN THE PAST. THUS IT WAS NOT A NON-BUSINESS LOAN AND INTEREST TH EREOF WAS FOR THE PURPOSE OF BUSINESS. THE DISALLOWANCE CONFIRMED BY THE LEARNED C.I.T.(A) IS NOT JUSTIFIED. IT IS NOT CORRECT WHEN CIT(A) MENTIONS IT IS NOT IN DISPUTE THAT FUNDS WERE GIVEN TO THOS E PARTIES WITHOUT ANY BUSINESS CONSIDERATION'. IT IS SUBMITTED THAT T HESE AMOUNTS WERE GIVEN FOR THE PURPOSE OF BUSINESS. THIS WAS TH E PRACTICE IN PAST YEARS. THE DISALLOWANCE MAY PLEASE BE DELETED. I.T.A.NO. /AHD/200 4 7. IT WAS SUBMITTED BY THE LD. A.R. THAT THESE INTE REST FREE ADVANCES TO THESE TWO PARTIES I.E. BHAGYODAYA TILES AND MAHALAX MI QUARRY WORKS WERE GIVEN OUT OF INTEREST FREE FUNDS AVAILABLE WIT H THE ASSESSEE. REGARDING INTEREST FREE FUNDS AVAILABLE WITH THE AS SESSEE AS ON 31.03.2003, IT WAS SUBMITTED THAT IT COMPRISES OF P ARTNERS CAPITAL OF RS.29,37,803/- AND CREDITORS RS.9,08,660/-. A QUER RY WAS RAISED BY THE BENCH AS TO WHETHER ANY INTEREST WAS PAID TO THE PA RTNERS ON THE CAPITAL AND IN REPLY, IT WAS SUBMITTED THAT INTEREST WAS PA ID TO THE PARTNERS OF RS.2,48,336/-. REGARDING VARIOUS JUDGEMENTS CITED BY THE LD. A.R., WE FEEL THAT NONE OF THESE JUDGEMENTS IS OF ANY HELP T O THE ASSESSEE SINCE THE FACTS OF THE PRESENT CASE ARE DIFFERENT AS THE ASSE SSEE COULD NOT BRING ANY EVIDENCE THAT INTEREST FREE FUNDS WERE AVAILABLE WI TH THE ASSESSEE TO GIVE INTEREST FREE ADVANCES AND HENCE THESE JUDGMENTS AR E NOT BEING DISCUSSED FOR THE SAKE OF BREVITY. 8. LD. D.R. SUPPORTED THE ORDERS OF AUTHORITIES BEL OW. 9. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS, PERUSE D THE MATERIAL ON RECORD AND HAVE GONE THROUGH THE ORDERS OF AUTHORIT IES BELOW. WE FIND THAT THIS IS THE ONLY ARGUMENT BEFORE US THAT THESE ADVANCES WERE GIVEN OUT OF INTEREST FREE FUNDS AVAILABLE WITH THE ASSES SEE BUT AS PER THE DETAILS GIVEN REGARDING INTEREST FREE FUNDS, ONE IS PARTNER S CAPITAL ACCOUNT OF RS.29.37 LACS AND THE OTHER IS CREDITORS OF RS.9.08 LACS. THERE IS DEBIT BALANCE IN PARTNERS CURRENT ACCOUNT OF RS.4.48 LAC S AND HENCE, NET CREDIT BALANCE OF THESE TWO ACCOUNTS IS AMOUNT OF RS.33.98 LACS. OUT OF THIS, PARTNERS CAPITAL IS NOT INTEREST FREE BECAUSE INTE REST IS PAID TO THE PARTNERS ALSO ON THEIR CAPITAL. REGARDING CREDITORS, IT IS NOT ACCEPTABLE THAT ANY CASH WAS RECEIVED FROM THE CREDITORS WHICH CAN BE U SED FOR GIVING INTEREST FREE ADVANCES. REGARDING THIS CONTENTION THAT THES E ADVANCES ARE BUSINESS ADVANCES, NO SATISFACTORY EVIDENCE COULD BE BROUGHT ON RECORD BY THE LD. I.T.A.NO. /AHD/200 5 A.R. AND HENCE, THIS ARGUMENT IS ALSO REJECTED. HE NCE, IT IS SEEN THAT NO INTEREST FREE FUND IS AVAILABLE WITH THE ASSESSEE W HICH CAN BE USED FOR GIVING INTEREST FREE ADVANCES AND HENCE, WE ARE OF THE CONSIDERED OPINION THAT NO INTERFERENCE IS CALLED FOR IN THE ORDER OF LD. CIT(A) ON THIS ISSUE. GROUND NO.2 OF THE ASSESSEE IS REJECTED. 10. GROUND NO.3 IS AS UNDER: 3. THE LEARNED C.I.T.(A) HAS ERRED IN CONFIR MING THE DISALLOWANCE OF EMPLOYEES' CONTRIBUTION TO PROVIDEN T FUND. THE SAME WAS PAID AS PER THE STATUTORY OBLIGATION FOR T HIS PURPOSE OF BUSINESS AND THEREFORE, THERE IS NO JUSTIFICATION F OR DISALLOWING THE SAME. UNDER THE CIRCUMSTANCES THERE IS NO JUSTIFICA TION FOR THE DISALLOWANCE MADE AND THE SAME MAY BE DELETED. 11. IT IS SUBMITTED BY THE LD. A.R. THAT THIS ISSUE IS NOW COVERED BY THE TRIBUNAL DECISION RENDERED IN THE CASE OF CIT VS AL OM EXTRUSIONS LTD. AS REPORTED IN 319 ITR 306 (S.C.). HE ALSO SUBMITTED THAT THE ENTIRE PAYMENT OF PF HAVE BEEN MADE BEFORE THE DUE DATE OF FILING OF RETURN OF INCOME. UNDER THESE FACTS, WE HOLD THAT NO DISALLO WANCE CAN BE MADE REGARDING PAYMENT OF EMPLOYEES CONTRIBUTION NOT PF IN THE LIGHT OF THIS JUDGEMENT OF HONBLE APEX COURT CITED BY THE LD. A. R. BECAUSE THE PAYMENT WAS MADE BEFORE THE DUE DATE OF FILING OF R ETURN OF INCOME. THIS SUBMISSION OF THE LD. A.R. COULD NOT BE CONTROVERTE D BY THE LD. D.R. AND HENCE, WE DELETE THIS DISALLOWANCE BY FOLLOWING THI S JUDGMENT OF HONBLE APEX COURT. GROUND NO.3 IS ALLOWED. 12. GROUND NO.4 IS AS UNDER: 4. THE LEARNED C.I.T.(A) HAS ERRED IN CONFIR MING THE DISALLOWANCE ON ACCOUNT OF VEHICLE RUNNING EXPENSES AND MAINTENANCE AND TELEPHONE EXPENSES. THE APPELLANT S UBMITS THAT LOOKING TO THE FACT THAT THE APPELLANT IS SITUATED AT BAJWA, WHICH IS AN OUT OF WAY PLACE AND HENCE TELEPHONE EXPENSES AN D VEHICLE EXPENSES WERE NECESSARY FOR THE PURPOSE OF BUSINESS . MERELY I.T.A.NO. /AHD/200 6 PRESUMING AND MAKING AN AD-HOC DISALLOWANCE AT 10% IS NOT JUSTIFIED AND THE ADDITION MAY KINDLY BE DELETED. 13. IT IS SUBMITTED BY THE LD. A.R. THAT DISALLOWAN CE IS EXCESSIVE BUT WE ARE OF THE CONSIDERED OPINION THAT 10% DISALLOWA NCE OUT OF VEHICLE RUNNING EXPENSES AND MAINTENANCE AND TELEPHONE EXPE NSES IS REASONABLE AND HENCE, WE DO NOT INTERFERE IN THE ORDER OF LD. CIT(A) ON THIS ISSUE. GROUND NO.4 IS REJECTED. 14. IN THE RESULT, APPEAL OF THE ASSESSEE IS PARTLY ALLOWED. 15. NOW, WE TAKE UP THE APPEAL OF THE ASSESSEE FOR THE ASSESSMENT YEAR 2004-05 IN I.T.A.NO. 3152/AHD/2008. 16. GROUND NO.1 IS AS UNDER: 1. THE LEARNED C.I.T.(APPEALS) HAS ERRED IN CONFIR MING THE DISALLOWANCE AT 1% OF THE EXPENSES OUT OF DIESEL PU RCHASE, OIL AND GREASE, REPAIRS AND MAINTENANCE, OCTROI, FREIGHT AN D CARTAGE EXPENSES. THE APPELLANT SUBMITS THAT FULL DETAILS A RE MAINTAINED AND ARE AVAILABLE IN THE ACCOUNT AND THEREFORE, THE RE IS NO JUSTIFICATION FOR MAKING DISALLOWANCE AND THE DISAL LOWANCE MAY BE DELETED. 17. IT IS SUBMITTED BY THE LD. A.R. THAT THE A.O. H AD MADE DISALLOWANCE OF 2% OF TOTAL EXPENSES INCURRED ON DI ESEL, OIL, GREASE, REPAIR & MAINTENANCE, OCTROI AND FREIGHT ETC. ON TH E GROUND THAT MOST OF THE BILLS DID NOT BEAR DESCRIPTION AND TRUCK NUMBER AND MOST OF THE BILLS WERE WITHOUT PROPER SUPPORTING. HE FURTHER SUBMIT TED THAT LD. CIT(A) HAS RESTRICTED THE DISALLOWANCE TO THE EXTENT OF 1% OF THESE EXPENSES. HE ALSO SUBMITTED THAT COMPLETE DETAILS ARE AVAILABLE ON PAGE 1-29 OF THE PAPER BOOK AND BOOKS OF ACCOUNT ARE AUDITED BY C.A. WITHOUT ANY QUALIFICATION OR REMARKS. HE FURTHER SUBMITTED THA T THIS GROUND REALITY SHOULD BE CONSIDERED THAT IN MANY CASES, BILLS ARE NOT PRESERVED BY THE I.T.A.NO. /AHD/200 7 DRIVERS AND EMPLOYEES, WHO DO NOT UNDERSTAND THE SE RIOUSNESS. HE PLACED RELIANCE ON THE TRIBUNAL DECISION RENDERED I N THE CASE OF AATUR HOLDINGS PVT. LTD. VS ACIT 12 TAXMAN 45. HE ALSO P LACED RELIANCE ON ANOTHER TRIBUNAL DECISION RENDERED IN THE C SE OF C ORE HEALTH CARE LTD. VS DCIT 70 TTJ 490 AND IN THE CASE OF SINGH CONSTRU CTION CO. LTD. VS ACIT 60 TTJ 610 IN SUPPORT OF THIS CONTENTION THAT IF A.O. HAS NOT POINTED OUT ANY INSTANCE OF EXPENDITURE OF INADMISS IBLE NATURE, NO AD HOC DISALLOWANCE CAN BE MADE 18. LD. D.R. OF THE REVENUE SUPPORTED THE ORDERS OF AUTHORITIES BELOW. 19. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS, PERUS ED THE MATERIAL ON RECORD AND HAVE GONE THROUGH THE ORDERS OF AUTHORIT IES BELOW AND VARIOUS JUDGEMENTS CITED BY THE LD. A.R. WE FIND THAT IT I S NOTED BY THE LD. CIT(A) IN PARA 2.3 OF HIS ORDER THAT THE A.O. HAS M ADE AD-HOC DISALLOWANCE OF 2% ON DIESEL AND OTHER EXPENSES. H E HAS FURTHER NOTED THAT THE A.O. HIMSELF HAS CONSIDERED THE VALUE OF D EFECTIVE VOUCHERS AT 1.5% OF THE TOTAL EXPENSES AND ON THIS BASIS, HE CO NFIRMED THE DISALLOWANCE TO THE EXTENT OF 1%. WE ARE OF THE CO NSIDERED OPINION THAT IF MAJORITY OF VOUCHERS ARE AVAILABLE AND ARE PROPE R AND ONLY 1.5% VOUCHERS ARE DEFECTIVE, NO DISALLOWANCE SHOULD BE M ADE ON AD-HOC BASIS WITHOUT POINTING OUT ANY SPECIFIC ITEM OF INADMISSI BLE EXPENDITURE. WE, THEREFORE, DELETE THIS DISALLOWANCE. GROUND NO.1 IS ALLOWED. 20. GROUND NO.2 IS AS UNDER: 2. THE LEARNED C.I.T.(A) HAS ERRED IN CONFIR MING THE DISALLOWANCE AT 10% ON VEHICLE EXPENSES, DEPRECIATI ON ON VEHICLE, TELEPHONE EXPENSES, TRAVELING EXPENSES AND STAFF WE LFARE EXPENSES. IT IS SUBMITTED THAT THESE ARE NORMAL BUSINESS EXPE NSES ESPECIALLY WHEN AMOUNTS ARE PAID FOR THE BENEFIT OF STAFF USE. UNDER THE CIRCUMSTANCES THERE IS NO JUSTIFICATION FOR MAKING THE DISALLOWANCE AND THE ADDITION MAY KINDLY BE DELETED. I.T.A.NO. /AHD/200 8 21. IT IS ADMITTED BY BOTH THE SIDES THAT THIS ISSU E IS SIMILAR TO GROUND NO.4 IN ASSESSMENT YEAR 2003-04 AND THE SAME CAN BE DECIDED ON SIMILAR LINES. IN THAT YEAR, WE HAVE CONFIRMED THIS DISALL OWANCE AND HENCE, IN THIS YEAR ALSO, THIS GROUND IS REJECTED. 22. GROUND NO.3 IS AS UNDER: 3. THE LEARNED C.I.T.(A) HAS ERRED IN CONFIR MING THE DISALLOWANCE OF INTEREST OUT OF INTEREST-BEARING FU NDS. THE SAME HAS BEEN DONE BECAUSE THE AMOUNTS WERE ADVANCED TO M/S BHAGYODAYA TILES FACTORY. THE AMOUNT GIVEN EARLIER YEAR AND CA RRIED FORWARD WAS OF RS.10,34,659/- AND THE CLOSING BALANCE WAS R S.11,88,214/-. THIS SHOWS THAT THERE IS A USUAL PRACTICE TO GIVE S UCH ADVANCES. IN THE CASE OF ANOTHER PARTY SHRI MAHALAXMI QUARRY WOR KS THE AMOUNT OF RS.3,95,818/- WAS THE OPENING DEBIT BALAN CE GIVEN TO THE PARTY AND THE AMOUNT HAS BEEN GIVEN DURING THE YEAR . UNDER THE CIRCUMSTANCES THE DISALLOWANCE MADE AT RS. 2,25,247 /- IS NOT JUSTIFIED AND SHOULD BE DELETED. 23. IT WAS AGREED BY BOTH THE SIDES THAT THIS ISSUE IS IDENTICAL TO GROUND NO.2 IN ASSESSMENT YEAR 2003-04 AND BOTH THE SIDES AGREED THAT THIS CAN BE DECIDED ON SIMILAR LINES IN THIS YEAR ALSO. IN THAT YEAR, WE HAVE CONFIRMED THIS DISALLOWANCE AND HENCE, IN THIS YEAR ALSO, THIS GROUND IS REJECTED. 24. GROUND NO.4 IS AS UNDER: 4. THE LEARNED CJ.T.(APPEALS) HAS ERRED IN CONFIRM ING THE DISALLOWANCE OF INTEREST ON INTEREST-FREE LOANS/ADV ANCES. THE APPELLANT SUBMITS THAT ADMITTEDLY ADVANCE WAS TO CA RTING CONTRACTOR AMOUNTING TO RS.25,51,860/-. THE AMOUNT WAS GIVEN I N THE PAST YEAR AND NOTHING WAS GIVEN DURING THE YEAR. ADVANCE HAS TO BE GIVEN TO THE CONTRACTING PARTIES BECAUSE THEY ARE S MALL PEOPLE AND THEY HAVE TO UNDERGO THE EXPENDITURE FOR WHICH THE AMOUNT IS GIVEN TO THEM AND THE SAME IS ADJUSTED AGAINST THE BILLS. UNDER THE CIRCUMSTANCES, THERE IS NO JUSTIFICATION FOR MAKING ANY DISALLOWANCE AND THE AMOUNT DISALLOWED MAY KINDLY B E DELETED. I.T.A.NO. /AHD/200 9 25. IT IS SUBMITTED BY THE LD. A.R. THAT THE A.O. H AS ALSO STATED THAT THE ASSESSEE HAS SHOWN ADVANCES TO CARTING CONTRACTORS AMOUNTING TO RS.25,51,860/- AND MENTIONED THAT NO WORK WAS CARRI ED OUT IN THIS YEAR. HE SUBMITTED THAT THERE WERE TRANSACTIONS WITH EACH OF THE CONTRACTORS IN THE EARLIER PERIOD IN THE NORMAL COURSE OF BUSINESS AND, THEREFORE, NO DISALLOWANCE IS CALLED FOR. 26. LD. D.R. OF THE REVENUE SUPPORTED THE ORDERS OF AUTHORITIES BELOW. 27. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS, PERUS ED THE MATERIAL ON RECORD AND HAVE GONE THROUGH THE ORDERS OF AUTHORIT IES BELOW. WE FIND THAT THIS ISSUE HAS BEEN DECIDED BY CIT(A) AS PER P ARA 5.1 OF HIS ORDER WHICH IS REPRODUCED BELOW: 5.1. THE ASSESSING OFFICER HAS DISCUSSED THE ISSUE IN DETAIL IN PARA-3(IV) OF ASSESSMENT ORDER. THE ASSESSING OFFIC ER ON PERUSAL OF BALANCE-SHEET OBSERVED THAT THE ASSESSEE HAS SHO WN ADVANCE TO CARTING CONTRACTOR AMOUNTING TO RS.25,51,860/-. ON VERIFICATION OF DETAILS, THE ASSESSING OFFICER FOUND THAT THE ASSES SEE HAS IN ALMOST ALL THE ACCOUNTS HAVE OPENING BALANCES WHICH HAVE B EEN PAID AND NO WORK WAS CARRIED OUT DURING THE YEAR UNDER CONSI DERATION. THE ASSESSING OFFICER STATED THAT THE ASSESSEE HAS DIVE RTED THE FUNDS FOR NON-BUSINESS PURPOSE WITHOUT CHARGING INTEREST. THE ASSESSING OFFICER WORKED OUT THE INTEREST COST @ 15% ON THE S AID ADVANCES AND MADE DISALLOWANCE OF RS.1,35,523/-. 28. FROM THE ABOVE PARA OF THE ORDER OF LD. CIT (A) , WE FIND THAT A CLEAR FINDING IS GIVEN BY LD. CIT(A) THAT THESE ADV ANCES ARE NOT GIVEN FOR BUSINESS PURPOSES BUT THE SAME ARE GIVEN BECAUSE TH E PERSONS WERE RELATED TO THE ASSESSEE AND ADVANCES WERE GIVEN FOR NON BUSINESS CONSIDERATION. THE LD. A.R. COULD NOT CONTROVERT T HIS SPECIFIC FINDING OF LD. CIT(A) AND HENCE, WE DECLINE TO INTERFERE IN TH E ORDER OF LD. CIT(A) ON THIS ISSUE ALSO. THIS GROUND IS ALSO REJECTED. 29. GROUND NO.5 IS AS UNDER: I.T.A.NO. /AHD/200 10 5. THE LEARNED C.I.T.(APPEALS) ERRED IN CONFIRMING THE DISALLOWANCE OF RS.40,6427- BEING BELATED PAYMENT T OWARDS EMPLOYEES' CONTRIBUTION TO PROVIDENT FUND. THE AMOU NT WAS PAID AS PER STATUTORY OBLIGATION FOR THE PURPOSE OF BUSI NESS AND THEREFORE THERE IS NO JUSTIFICATION FOR DISALLOWING THE SAME. 30. BOTH THE SIDE AGREED THAT THIS ISSUE IS IDENTIC AL TO GROUND NO.3 IN ASSESSMENT YEAR 2003-04. IN THAT YEAR, THIS ISSUE HAS BEEN DECIDED BY US IN FAVOUR OF THE ASSESSEE BY FOLLOWING JUDGMENT OF HONBLE APEX COURT AND ON SIMILAR LINES, IN THIS YEAR ALSO, THIS ISSUE IS DECIDED IN FAVOUR OF THE ASSESSEE. THIS GROUND IS ALLOWED. 31. GROUND NO.6 IS AS UNDER: 6. THE LEARNED C.I.T.(APPEALS) ERRED IN CONF IRMING THE DISALLOWANCE IN RESPECT OF PAYMENT TO PERSONS SPECI FIED U/S. 40A(2)(B) OF RS.27,75,559/-. THE PAYMENTS ARE GIVEN TO PARTIES, WHO HAVE UNDERTAKEN THE WORKS AS MENTIONED THEREIN. THE PAYMENT IS MADE ON THE BASIS OF HOURS UTILIZED. IT WAS SHOW N THAT NUMBER OF HOURS FOR WHICH JCB MACHINES WERE HIRED FROM RELATE D PARTY AND THEREFORE, FOR LONGER HOURS HIGHER PAYMENT HAD TO B E MADE. UNDER THE CIRCUMSTANCES THE DISALLOWANCE CONFIRMED AT RS. 40,0007- IS NOT JUSTIFIED AND THE SAME BE DELETED. 32. BOTH THE SIDES AGREED THAT THIS ISSUE IS IDENTI CAL TO GOURD NO.1 IN ASSESSMENT YEAR 2003-04 AND THE SAME CAN BE DECIDED IN THIS YEAR ON SIMILAR LINES. IN THAT YEAR, WE HAVE DELETED THE D ISALLOWANCE AND ACCORDINGLY, IN THIS YEAR ALSO, THIS GROUND OF THE ASSESSEE IS ALLOWED. 33. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS PA RTLY ALLOWED. 34. NOW, WE TAKE UP THE APPEAL OF THE REVENUE FOR A SSESSMENT YEAR 2004-05 IN I.T.A.NO. 3073/AHD/2008. 35. GROUND NO.1 IS AS UNDER: 1. ON THE FARTS AND IN THE CIRCUMSTANCES OF THE CA SE AND IN SAW, THE LEARNED C!T(A) ERRED IN DELETING THE DISALLOWAN CE U/S,40A(2)(B) AMOUNTING TO RS,2,37,556/'- IGNORING THE FACT THAT THE ASSESSEE FAILED TO PRODUCE THE SUPPORTING EVIDE NCE. I.T.A.NO. /AHD/200 11 36. LD. D.R. SUPPORTED THE ASSESSMENT ORDER WHEREAS IT IS SUBMITTED BY THE LD. A.R. THAT THIS ISSUE IS CONNECTED WITH GROU ND NO.6 OF THE ASSESSEES APPEAL AND HIS ARGUMENTS ARE THE SAME. 37 WE HAVE CONSIDERED THE RIVAL SUBMISSIONS, PERUSE D THE MATERIAL ON RECORD AND HAVE GONE THROUGH THE ORDERS OF AUTHORIT IES BELOW. IN VIEW OF THE DECISION WITH REGARD TO GROUND NO.6 OF THE ASSE SSEES APPEAL AS PER WHICH WE HAVE DELETED THE BALANCE DISALLOWANCE OF R S.40,000/- CONFIRMED BY THE LD. CIT(A), NO INTERFERENCE IS CAL LED FOR IN THE ORDER OF LD. CIT(A) ON THIS ASPECT. GROUND NO.1 IS REJECTED . 38. GROUND NO.2 IS AS UNDER: 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE AND IN LAW, THE LEARNED CIT(A) ERRED IN DELETING THE ADDITION U/S,6 8 OF THE ACT AMOUNTING TO RS.5,64,973/- IGNORING THE FACT THAT T HE ASSESSEE FAILED TO PROVE THE GENUINENESS OF THE LOANS TAKEN. THE ORDER OF THE LEARNED CIT(A) TO THE ABOVE EXTENT MAY BE SET ASIDE AND THAT OF THE AO BE RESTORED. 39. LD. D.R. OF THE REVENUE SUPPORTED THE ASSESSMEN T ORDER WHEREAS THE LD. A.R. SUPPORTED THE ORDER OF LD. CIT(A). HE HAS SUBMITTED THAT A CLEAR FINDING IS GIVEN BY LD. CIT(A) IN PARA 8.2 OF HIS ORDER THAT THIS AMOUNT WAS BORROWED BY THE ASSESSEE FROM LLOYED FIN ANCE IN FINANCIAL YEAR 1997-98 AND THERE IS NO BORROWING IN THIS YEAR . UNDER THESE FACTS, WE DO NOT FIND ANY REASON TO INTERFERE IN THE ORDER OF LD. CIT(A) ON THIS ISSUE. THIS GROUND IS ALSO REJECTED. 40. IN THE RESULT, APPEAL OF THE REVENUE IS DISMISS ED. 41. NOW, WE TAKE UP THE ASSESSEES APPEAL FOR ASSES SMENT YEAR 2005-06 IN I.T.A.NO. 845/AHD/2009. 42. GROUND NO.1 IS AS UNDER: I.T.A.NO. /AHD/200 12 1. THE LEARNED C.I.T. (APPEALS) HAS ERRED B OTH IN LAW AND ON FACTS IN CONFIRMING THE DISALLOWANCE OF RS. 65.500/ - WITH REGARD TO THE EXPENSES ON DIESEL, OIL AND GREASE, REPAIRS AND MAINTENANCE, TRACTOR CARTING CHARGES AND TRANSPORT & CARTING EXP ENSES AT THE RATE OF '\% OF THE TOTAL OF ABOVE EXPENSES. ON THE FACTS AND CIRCUMSTANCES OF THE CASE THERE BEING NO SPECIFIC I TEM OF DISALLOWABLE NATURE POINTED BY THE ASSESSING OFFICE R, ADDITION/DISALLOWANCE OUGHT TO HAVE BEEN DELETED IN TOTO. IT BE SO HELD NOW AND THE ADDITION OF RS. 65,500/- CONFIRMED BY C.I.T. (APPEALS) BE DELETED. 43. IT IS AGREED BY BOTH THE SIDES THAT THIS ISSUE IS IDENTICAL TO GROUND NO.1 IN ASSESSMENT YEAR 2004-05 AND THE SAME CAN BE DECIDED ON SIMILAR LINES. IN THAT YEAR, THIS ISSUE HAS BEEN DECIDED B Y US IN FAVOUR OF THE ASSESSEE AND HENCE ON SIMILAR LINES, IN THIS YEAR A LSO, THIS GROUND OF THE ASSESSEE IS ALLOWED. 44. GROUND NO.2 IS AS UNDER: 2. THE LEARNED C.I.T. (APPEALS) HAS ERRED I N LAW AND ON FACTS IN CONFIRMING THE DISALLOWANCE OF RS.38,360/- AT 1/ 10 TH OF THE EXPENDITURE ON VEHICLES AND REPAIRS AND DEPRECIATIO N ON VEHICLE. IT IS SUBMITTED THAT ABOVE EXPENSES ARE ALLOWABLE AND THERE IS NO JUSTIFICATION IN DISALLOWING THE DEPRECIATION. IT B E SO HELD NOW AND THE DISALLOWANCE CONFIRMED BE DELETED. 45. IT WAS AGREED BY BOTH THE SIDES THAT THIS ISSUE IS IDENTICAL TO GROUND NO.2 IN ASSESSMENT YEAR 2004-05 AND IT CAN BE DECID ED ON SIMILAR LINES. IN THAT YEAR, THIS ISSUE HAS BEEN DECIDED BY US AGA INST THE ASSESSEE AND ACCORDINGLY, IN THIS YEAR ALSO, THIS GROUND OF THE ASSESSEE IS REJECTED. 46. GROUND NO..3 IS AS UNDER: 3. THE LEARNED C.I.T. (APPEALS) HAS ERRED I N CONFIRMING THE DISALLOWANCE OF RS.34,55,412/- U/S. 40(A)(IA) OF TH E INCOME TAX ACT, 1961. IN VIEW OF THE FACTS STATED BY THE ASSES SING OFFICER AND THE LEGAL POSITION, UNDERLYING THE PROVISO TO SEC. 40(A)(IA), NECESSARY DEDUCTION OUGHT TO HAVE BEEN ALLOWED WITH REGARD TO THE PAYMENT FOR THE MONTH OF MARCH SINCE THE TDS WAS PA ID BEFORE I.T.A.NO. /AHD/200 13 DUE DATE OF RETURN. IT BE SO HELD NOW AND RELATED P AYMENTS BE ALLOWED FOR THE YEAR UNDER APPEAL. 47. IT IS SUBMITTED BY THE LD. A.R. THAT THE LD. CI T(A) HAD DECIDED THIS ISSUE AGAINST THE ASSESSEE ON THIS BASIS THAT THIS GROUND WAS NOT PRESSED BY THE C.A. I.E. LD. A.R. OF THE ASSESSEE BEFORE LD . CIT(A). IT WAS SUBMITTED THAT HE HAS CONCEDED THIS ISSUE BEFORE LD . CIT(A) ON THIS BASIS THAT TDS WAS DEDUCTED FORM APRIL 2004 TO 31.3.2005 BUT PAID LATER ON AND THEREFORE, IT WILL BE ALLOWED IN THE NEXT YEAR. NOW, THERE ARE CONSISTENT DECISIONS THAT IF TDS IS PAID BEFORE THE DUE DATE OF FILING OF RETURN OF INCOME, THE SAME IS ALLOWABLE. IN SUPPOR T OF THIS CONTENTION, RELIANCE WAS PLACED ON THE TRIBUNAL DECISION RENDER ED IN THE CASE OF K R MAKWANA IN I.T.A.NO. 3983/AHD/2008. AT THIS JUNCTU RE, IT WAS POINTED OUT BY THE BENCH THAT NOW, THERE IS A DECISION OF S PECIAL BENCH OF THE TRIBUNAL RENDERED IN THE CASE OF BHARATI SHIPYARD L TD. VS. DCIT AS REPORTED IN 132 ITD 53 (SB) WHEREIN IT WAS HELD TH AT THE AMENDMENT IN SECTION 40(A)(IA) IS NOT RETROSPECTIVE. IN REPLY, LD. A.R. HAD NOTHING TO SAY. LD. D.R. OF THE REVENUE SUPPORTED THE ORDERS OF AUTHORITIES BELOW AND HE PLACED RELIANCE ON THE DECISION OF SPECIAL B ENCH OF THE TRIBUNAL CITED ABOVE. 48. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS, PERUS ED THE MATERIAL ON RECORD AND HAVE GONE THROUGH THE ORDERS OF AUTHORIT IES BELOW. WE FIND THAT IT IS NOTED BY THE A.O. THAT THE ASSESSEE HAS NOT MADE PAYMENT OF TDS AS PER THE REQUIREMENT OF SECTION 40(A)(IA) OF THE ACT. AS PER THE PROVISIONS OF SECTION 40(A)(IA) IN THE RELEVANT PER IOD, THE ASSESSEE COULD HAVE MADE PAYMENT OF TDS TILL THE DUE DATE OF FILIN G OF RETURN OF INCOME FOR THOSE TDS, WHICH WERE DEDUCTIBLE AND WAS ALSO D EDUCTED DURING THE LAST MONTH OF THE PREVIOUS YEAR AND FOR THE REMAINI NG AMOUNT, THE TDS WAS REQUIRED TO BE PAID BEFORE THE LAST DAY OF THE PREVIOUS YEAR. NOTHING I.T.A.NO. /AHD/200 14 HAS BEEN BROUGHT ON RECORD BEFORE THE AUTHORITIES B ELOW OR BEFORE US REGARDING THIS FACT THAT TDS WAS PAID BEFORE THE DU E DATE OF FILING OF RETURN OF INCOME AND SUCH TDS WAS DEDUCTIBLE AND SO DEDUCTED IN LAST MONTH OF THE FINANCIAL YEAR 2004-05. UNDER THESE F ACTS, WE FIND THAT THIS ISSUE IS COVERED AGAINST THE ASSESSEE BY THE DECISI ON OF SPECIAL BENCH OF THE TRIBUNAL CITED ABOVE AND RESPECTFULLY FOLLOWING THE SAME, THIS GROUND OF THE ASSESSEE IS REJECTED. 49. GROUND NO.4 IS AS UNDER: 4. IT IS FURTHER SUBMITTED THAT THE DEDUCT ION OUGHT TO HAVE BEEN ALLOWED IN A.Y. 2006-07 INASMUCH AS THE FACTUM OF THE IDS HAVING BEEN PAID IN THE NEXT YEAR IS NOT DISPUTED A ND NECESSARY DETAILS WERE FURNISHED TO THE ASSESSING OFFICER. IT IS THEREFORE SUBMITTED THAT DIRECTION OUGHT TO HAVE BEEN GIVEN T O ALLOW THE DEDUCTION IN RESPECT OF THE NEXT PREVIOUS YEAR WHEN IDS WAS PAID. IT BE SO HELD NOW AND THE DEDUCTION OF PAYMENTS MAD E BE ALLOWED IN A.Y. 2006-07 AS PER THE PROVISIONS OF SEC. 40(A) (IA). 50. AS PER THIS GROUND, ASSESSEE IS SEEKING DIRECTI ON FOR ALLOWING DEDUCTION IN THE YEAR OF PAYMENT OF TDS. WE FEEL T HAT NO SUCH DIRECTION IS REQUIRED BECAUSE IT IS IN THE ACT ITSELF THAT IF THE TDS IS PAID IN A SUBSEQUENT YEAR, DEDUCTION IS ALLOWABLE IN THAT YEA R AS PER THE PROVISIONS OF SECTION 40(A)(IA) OF THE ACT AND HENCE, NO SUCH DIRECTION IS CALLED FOR. THIS GROUND IS ALSO REJECTED. 51. GROUND NO.5 IS AS UNDER: 5. THE LEARNED C.I.T. (APPEALS) HAS FURTHER ERRED BOTH IN LAW AND ON FACTS IN CONFIRMING DISALLOWANCE OF RS.59,37 3/- AT THE RATE OF 15% ON RS.3,95,818/- BEING ADVANCE 10 SHRI MAHAL AXMI QUARRY WORKS. ON THE FACTS OF THE CASE ADVANCES WERE GIVEN FOR THE BUSINESS PURPOSE AND HENCE NO DISALLOWANCE OF INTER EST AT THE RATE OF 15% WAS CALLED FOR. IT BE SO HELD NOW AND WITHOU T THERE BEING ANY NEXUS FOUND WITH BORROWED FUNDS THE DISALLOWANC E BE DELETED. I.T.A.NO. /AHD/200 15 52. IT WAS AGREED BY BOTH THE SIDES THAT THIS ISSUE IS IDENTICAL TO GROUND NO.3 IN ASSESSMENT YEAR 2004-05 AND THE SAME CAN BE DECIDED ON SIMILAR LINES. IN THAT YEAR, WE HAVE DECIDED THIS ISSUE AG AINST THE ASSESSEE AND ACCORDINGLY, IN THIS YEAR ALSO, THIS GROUND OF THE ASSESSEE IS REJECTED. 53. GROUND NO.6 IS AS UNDER: 6. THE C.I.T.(A) ALSO ERRED IN LAW AND ON F ACTS IN CONFIRMING THE DISALLOWANCE OF RS.1,01,404/- IN RESPECT OF ADV ANCES TO THE CARTING CONTRACTORS, WHICH WERE GIVEN FOR THE BUSIN ESS PURPOSES. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND ALSO WITHOUT THERE BEING ANY NEXUS OF INTEREST-BEARING FUNDS FOUND THE DISALLOWANCE MADE BY THE ASSESSING OFFICER AND CONFIRMED BY THE LEARNED C.I.T.(APPEALS) BE DELETED. 54. IT WAS AGREED BY BOTH THE SIDES THAT THIS ISSU E IS IDENTICAL TO GROUND NO.4 IN ASSESSMENT YEAR 2004-05 AND THE SAME CAN BE DECIDED ON SIMILAR LINES. IN THAT YEAR, THIS ISSUE WAS DECIDED BY US AGAINST THE ASSESSEE AND HENCE, IN THIS YEAR ALSO, THIS GROUND OF THE ASSESS EE IS REJECTED. 55. GROUND NO.7 IS AS UNDER: 7. THE LEARNED C.I.T. (APPEALS) HAS ERRED BOTH IN LAW AND ON FACTS IN CONFIRMING THE DISALLOWANCE OF RS.79,325/- IN RESPECT OF PAYMENT OF PROVIDENT FUNDS INASMUCH AS PAYMENT IS A LREADY MADE MOSTLY WITHIN THE PREVIOUS YEAR AND ALSO BEFORE DUE DATE OF FILING THE RETURN AS NARRATED IN PARA 8.1 OF THE C.I.T.(AP PEALS)'S ORDER. IN VIEW OF THE AMENDMENT TO SECTION 43B, THE DISALLOWA NCE OUGHT NOT TO HAVE BEEN MADE. IT BE SO HELD NOW AND THE DISALL OWANCE BE DELETED. 56. BOTH THE SIDES AGREED THAT THIS ISSUE IS IDENTI CAL TO GROUND NO.5 IN ASSESSMENT YEAR 2004-05 AND THE SAME CAN BE DECIDED ON SIMILAR LINES. IN THAT YEAR, THIS ISSUE HAS BEEN DECIDED BY US IN FAV OUR OF THE ASSESSEE BY FOLLOWING THE JUDGMENT OF HONBLE APEX COURT CITED BY THE LD. A.R. ON THE SAME LINES, IN THIS YEAR ALSO, THIS ISSUE IS DE CIDED IN FAVOUR OF THE ASSESSEE AND THIS GROUND IS ALLOWED. I.T.A.NO. /AHD/200 16 57. GROUND NO.8 IS AS UNDER: 8. THE LD. CIT(A) HAS ERRED BOTH IN LAW AND ON FAC TS IN CONFIRMING THE ALLOWANCE OF RS.17,470/- U/S 40A(3) OF THE INCOME TAX ACT, 1961. ON THE FACTS OF THE CASE, DISALLOWA NCE OF RS.17,470/- IS UNJUST AND GENUINENESS OF EXPENSE HA VING NOT BEEN DOUBTED THE SAME BE ALLOWED. 58. THIS GROUND WAS NOT PRESSED BY THE LD. A.R. AND ACCORDINGLY, THIS GROUND IS REJECTED AS NOT PRESSED. 59. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS PA RTLY ALLOWED. 60. IN THE COMBINED RESULT, ALL THE THREE APPEALS O F THE ASSESSEE ARE PARTLY ALLOWED AND THE APPEAL OF THE REVENUE IS DIS MISSED. 61. ORDER PRONOUNCED IN THE OPEN COURT ON THE DATE MENTIONED HEREINABOVE. SD./- SD./- (G. C. GUPTA) (A. K. GARODIA) VICE PRESIDENT ACCOUNTANT MEMBER SP COPY OF THE ORDER FORWARDED TO: 1. THE APPLICANT 2. THE RESPONDENT 3. THE CIT CONCERNED 4. THE LD. CIT (APPEALS) 5. THE DR, AHMEDABAD BY ORDER 6. THE GUARD FILE AR,ITAT,AHMEDABAD 1. DATE OF DICTATION 11/01/2012 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER 12/01/2012OTHER 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 19/01 5. DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR. P.S./P.S.23/1 6. DATE ON WHICH THE FILE GOES TO THE BENCH CLERK 23/01/2012 I.T.A.NO. /AHD/200 17 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. .