SHAKUNTALA ASHOK VYAS ,MUMBAI vs. ITO - 19(3)(3), MUMBAI

This appeal by the assessee is directed against order dated 04.09.2020 passed by the Ld. Commissioner of Income-tax (Appeals)-53, Mumbai [in short ‘the Ld. CIT(A)’] for assessment year 2012-13, raising the grounds as reproduced below:

“1. The order dated 04/09/2020 bearing No. ITBA/APL/S/250/2020-21/1027896568[11 passed under section 250 of Income Tax Act, 1961 by the Hon'ble CIT[A]- 53, Mumbai, is excessive, unreasonable, arbitrary, against the provisions of Income Tax Act, 1961 and therefore liable to be quashed.

Shakuntala Ashok Vyas. 2 ITA No.

2. On facts and circumstances of the case and in law, the . On facts and circumstances of the case and in law, the . On facts and circumstances of the case and in law, the Hon'ble CIT [A] has erred in confirming the disallowance of Hon'ble CIT [A] has erred in confirming the disallowance of Hon'ble CIT [A] has erred in confirming the disallowance of Rs. 50,98,618/ Rs. 50,98,618/- on account of labour charges paid by the on account of labour charges paid by the appellant even though the appellant has discharged on appellant even though the appellant has discharged on appellant even though the appellant has discharged onus on her with proper documentary evidences available with on her with proper documentary evidences available with on her with proper documentary evidences available with her. 2. Briefly stated facts of the case are that the assessee was Briefly stated facts of the case are that the assessee was Briefly stated facts of the case are that the assessee was engaged in carrying engaged in carrying construction contract of labour work. For labour work. For the year under consideration, the assessee filed return of income on year under consideration, the assessee filed return of income on year under consideration, the assessee filed return of income on 20.09.2012 declaring total income at Rs.9,57,200/ 20.09.2012 declaring total income at Rs.9,57,200/- -. The return of income filed by the assessee was selected for scrutiny and statutory income filed by the assessee was selected for scrutiny and statutory income filed by the assessee was selected for scrutiny and statutory notices under the Income notices under the Income-tax Act, 1961 (in short ‘the Act’) were tax Act, 1961 (in short ‘the Act’) were issued and complied with. During the assessment proceedings, the issued and complied with. During the assessment proceed issued and complied with. During the assessment proceed Assessing Officer noticed that against the contract receipt of noticed that against the contract receipt of noticed that against the contract receipt of Rs.7,27,40,301/-, the assessee claimed sub the assessee claimed sub-contract charges of contract charges of Rs.3,73,80,996/-. Out of which contract charges in respect of seven . Out of which contract charges in respect of seven . Out of which contract charges in respect of seven parties amounting to Rs.50,98,618/ parties amounting to Rs.50,98,618/- were disallowed were disallowed by the Assessing Officer in absence of any proof of the services rendered by absence of any proof of the services rendered by absence of any proof of the services rendered by those parties as well as those parties as well as due to no physical verification of those physical verification of those parties and low net profit rate declared by the assessee. On further parties and low net profit rate declared by the assessee. On further parties and low net profit rate declared by the assessee. On further appeal, the Ld. CIT(A) upheld the disallowa the Ld. CIT(A) upheld the disallowance observing as under: nce observing as under:

“5.1. The facts of the case are that the Assessing Officer 5.1. The facts of the case are that the Assessing Officer 5.1. The facts of the case are that the Assessing Officer has made disallowance of Rs. 50,98,618/ has made disallowance of Rs. 50,98,618/- out of labour out of labour charges. The reasons for making such disallowance by the charges. The reasons for making such disallowance by the charges. The reasons for making such disallowance by the AO are: 1. The labour charges paid to Mr. Mukesh Rathod, 1. The labour charges paid to Mr. Mukesh Rathod, 1. The labour charges paid to Mr. Mukesh Rathod, Mr. Rajaram Mali and Mr. Rajaram Mali and Mr. Shivkesh Vas amounting to Shivkesh Vas amounting to Rs. 28,32,418/ Rs. 28,32,418/- were disallowed because their were disallowed because their Shakuntala Ashok Vyas. 3 ITA No. residential addresses happened to be premises residential addresses happened to be premises residential addresses happened to be premises belonging to appellant's husband Mr. Ashok Vyas. belonging to appellant's husband Mr. Ashok Vyas. belonging to appellant's husband Mr. Ashok Vyas.

3. All the seven parties have never filed their Return 3. All the seven parties have never filed their Return 3. All the seven parties have never filed their Return of Income. of Income.

4. Net Profit shown by the ap 4. Net Profit shown by the appellant was 13% on a pellant was 13% on a total turnover. total turnover. 5.2. The appellant has submitted that she is doing the 5.2. The appellant has submitted that she is doing the 5.2. The appellant has submitted that she is doing the business of civil work and therefore, hiring of labourers for business of civil work and therefore, hiring of labourers for business of civil work and therefore, hiring of labourers for the civil work is necessary, Mukesh Rathod, Rajaram Mali the civil work is necessary, Mukesh Rathod, Rajaram Mali the civil work is necessary, Mukesh Rathod, Rajaram Mali and Shivkesh Vyas were smal labourers and the and Shivkesh Vyas were smal labourers and the and Shivkesh Vyas were smal labourers and they kept on changing their stay. changing their stay. They were provided her premises on They were provided her premises on temporary basis as they didn't had any place to stay, temporary basis as they didn't had any place to stay, temporary basis as they didn't had any place to stay, where they stayed till the completion of the project and then where they stayed till the completion of the project and then where they stayed till the completion of the project and then left. The appellant has submitted confirmations, Copy of left. The appellant has submitted confirmations, Copy of left. The appellant has submitted confirmations, Copy of PAN Card, Ledger PAN Card, Ledger account till final payment and Bank account till final payment and Bank Statements reflecting their payment in respect of Rajaram Statements reflecting their payment in respect of Rajaram Statements reflecting their payment in respect of Rajaram Mali and Shivkesh Vyas. Mali and Shivkesh Vyas. With respect to Mukesh Rathod, it is submitted that no With respect to Mukesh Rathod, it is submitted that no With respect to Mukesh Rathod, it is submitted that no payment was made to him because he had done some payment was made to him because he had done some payment was made to him because he had done some damage at appellant's premises and damage at appellant's premises and have stolen the have stolen the materials from clients site and absconded. The entire labour materials from clients site and absconded. The entire labour materials from clients site and absconded. The entire labour charges were reversed and offered for taxation. charges were reversed and offered for taxation. With respect to Bholaram Chawdhary, Gopal Yadav, Zahir With respect to Bholaram Chawdhary, Gopal Yadav, Zahir With respect to Bholaram Chawdhary, Gopal Yadav, Zahir Alam and Udaybhan Sahani, the appellant has submitted Alam and Udaybhan Sahani, the appellant has submitted Alam and Udaybhan Sahani, the appellant has submitted their ledger accounts their ledger accounts. It is also submitted that the appellant has deducted the It is also submitted that the appellant has deducted the It is also submitted that the appellant has deducted the TDS as required u/s TDS as required u/s 194C of the Income Tax Act, 1961 and 194C of the Income Tax Act, 1961 and all the payments were made through banking channels all the payments were made through banking channels all the payments were made through banking channels It is further submitted that during the year under It is further submitted that during the year under It is further submitted that during the year under consideration, the appellant had achieved the highest consideration, the appellant had achieved the highest consideration, the appellant had achieved the highest Shakuntala Ashok Vyas. 4 ITA No.

turnover but there were revenue leakage in terms of turnover but there were revenue leakage in terms of turnover but there were revenue leakage in terms of material as well as labour hence the net profit was low. material as well as labour hence the net profit was low. material as well as labour hence the net profit was low. The appellant has relied upon the decision The appellant has relied upon the decision of the High Court of the High Court of Gujarat in case of CIT of Gujarat in case of CIT - IV V. Sonar Construction Pvt. Ltd. IV V. Sonar Construction Pvt. Ltd. (Citation not Provided by appellant). In this decision the (Citation not Provided by appellant). In this decision the (Citation not Provided by appellant). In this decision the Hon'ble Court has held that when the assessee had Hon'ble Court has held that when the assessee had Hon'ble Court has held that when the assessee had submitted the ledger confirmations, had provided the copy submitted the ledger confirmations, had provided the copy submitted the ledger confirmations, had provided the copy of PAN, TDS is deducted as required and payments are TDS is deducted as required and payments are TDS is deducted as required and payments are made through banking Channels it was hence proved that made through banking Channels it was hence proved that made through banking Channels it was hence proved that the transactions were genuine and it can't be disallowed. the transactions were genuine and it can't be disallowed. the transactions were genuine and it can't be disallowed. 5.3. The disallowance of labour charges paid by the 5.3. The disallowance of labour charges paid by the 5.3. The disallowance of labour charges paid by the appellant to 07 labour contractors/ labourers appellant to 07 labour contractors/ labourers has been made by the AO because the appellant has not proved the made by the AO because the appellant has not proved the made by the AO because the appellant has not proved the identity of those 07 labour contractors/ labourers. Even, identity of those 07 labour contractors/ labourers. Even, identity of those 07 labour contractors/ labourers. Even, during the appellate proceeding the appellant has relied during the appellate proceeding the appellant has relied during the appellate proceeding the appellant has relied upon the evidences such as their ledger accounts, upon the evidences such as their ledger accounts, upon the evidences such as their ledger accounts, confirmations and PAN of confirmations and PAN of some of the labourers, etc. The some of the labourers, etc. The appellant has provided copies its bank statements showing appellant has provided copies its bank statements showing appellant has provided copies its bank statements showing payment made though banking channels. The appellant has payment made though banking channels. The appellant has payment made though banking channels. The appellant has not provided any evidence such as copies of their Aadhar not provided any evidence such as copies of their Aadhar not provided any evidence such as copies of their Aadhar Card, Voter's card, driving license, return of the in Card, Voter's card, driving license, return of the in Card, Voter's card, driving license, return of the income, etc., from where the identity of the person could be made etc., from where the identity of the person could be made etc., from where the identity of the person could be made out. The appellant has also not provided copies of bank out. The appellant has also not provided copies of bank out. The appellant has also not provided copies of bank statements of the those 07 persons which could prove that statements of the those 07 persons which could prove that statements of the those 07 persons which could prove that the payments have been actually received by them. The the payments have been actually received by them. The the payments have been actually received by them. The appellant has claimed la appellant has claimed labour expenses as deduction in the bour expenses as deduction in the P& L account and it is allowable us 37 of the IT Act. In P& L account and it is allowable us 37 of the IT Act. In P& L account and it is allowable us 37 of the IT Act. In respect of any deduction allowable us 37 of the IT Act, the respect of any deduction allowable us 37 of the IT Act, the respect of any deduction allowable us 37 of the IT Act, the primary onus is on the assesse to prove the genuineness of primary onus is on the assesse to prove the genuineness of primary onus is on the assesse to prove the genuineness of the expenses by bringing all the relevant evid the expenses by bringing all the relevant evid the expenses by bringing all the relevant evidences on record. During the year under consideration, the appellant has During the year under consideration, the appellant has During the year under consideration, the appellant has shown NP of 1.3% which prima face appears to be low. The shown NP of 1.3% which prima face appears to be low. The shown NP of 1.3% which prima face appears to be low. The appellant herself has given reasons for such low NP that appellant herself has given reasons for such low NP that appellant herself has given reasons for such low NP that there was revenue leakage in terms of material and labour. there was revenue leakage in terms of material and labour. there was revenue leakage in terms of material and labour. However, the appellant has not submitted any evidence in However, the appellant has not submitted any evidence in e appellant has not submitted any evidence in respect of such claim. respect of such claim. Mere confirmations, ledger accounts, Mere confirmations, ledger accounts, payment through banking channels and TDS deduction do payment through banking channels and TDS deduction do payment through banking channels and TDS deduction do not prove the genuineness of labour chares paid to those 07 not prove the genuineness of labour chares paid to those 07 not prove the genuineness of labour chares paid to those 07 Shakuntala Ashok Vyas. 5 ITA No. persons. Thus, the appellant has fai Thus, the appellant has failed to justify the labour led to justify the labour charges paid to 07 persons with cogent evidences. charges paid to 07 persons with cogent evidences. charges paid to 07 persons with cogent evidences. The appellant has relied upon the decision of the High Court The appellant has relied upon the decision of the High Court The appellant has relied upon the decision of the High Court of Gujarat in case of CIT of Gujarat in case of CIT - IV V. Sonar Construction Pvt Ltd. IV V. Sonar Construction Pvt Ltd. In the case of CIT In the case of CIT - IV V. Sonar Construction Pvt Ltd. [2 IV V. Sonar Construction Pvt Ltd. [2014] 221 221 221 Taxman Taxman Taxman 112 112 112 (Gujarat)(Mag.), (Gujarat)(Mag.), (Gujarat)(Mag.), the the the Commissioner Commissioner Commissioner (Appeals) (Appeals) (Appeals) was was was of of of view view view that that that there there there were were were sufficient sufficient sufficient documentary evidence in nature of election card, driving documentary evidence in nature of election card, driving documentary evidence in nature of election card, driving licence, ration card, confirmation of ledger account, etc., by licence, ration card, confirmation of ledger account, etc., by licence, ration card, confirmation of ledger account, etc., by which genuineness of payment towa which genuineness of payment towards labour charges rds labour charges was proved. The findings recorded by authorities below was proved. The findings recorded by authorities below was proved. The findings recorded by authorities below being which were in no way perverse, therefore, the Hon'ble being which were in no way perverse, therefore, the Hon'ble being which were in no way perverse, therefore, the Hon'ble Court has decided in favour of the assessee. Court has decided in favour of the assessee. In the case of the appellant, the appellant has not proved In the case of the appellant, the appellant has not proved In the case of the appellant, the appellant has not proved the genuineness of the genuineness of the transaction by sufficient and cogent the transaction by sufficient and cogent evidences. Therefore, the decision of High Court of Gujarat evidences. Therefore, the decision of High Court of Gujarat evidences. Therefore, the decision of High Court of Gujarat in case of CIT in case of CIT - IV V. Sonar Construction Pvt. Ltd. is not IV V. Sonar Construction Pvt. Ltd. is not applicable to the facts of the case of the appellant. applicable to the facts of the case of the appellant. applicable to the facts of the case of the appellant. In fact. the decision of High Court of Pu In fact. the decision of High Court of Punjab & Haryana in njab & Haryana in the case of Commissioner of Income the case of Commissioner of Income-tax-IlI, Ludhiana v. S.G. IlI, Ludhiana v. S.G. Exports [2011] 12 taxmann.com 77 (Punjab & Haryana) is Exports [2011] 12 taxmann.com 77 (Punjab & Haryana) is Exports [2011] 12 taxmann.com 77 (Punjab & Haryana) is relevant to the facts of the case of the appellant. The head relevant to the facts of the case of the appellant. The head relevant to the facts of the case of the appellant. The head- note of the decision reads as under: note of the decision reads as under: ..Section 37(1) of the I ..Section 37(1) of the Income-tax Act, 1961 - - Business expenditure expenditure - Allowability of - Assessment year 2004 Assessment year 2004- 05 - Assessee Assessee was was engaged engaged in in business business of of manufacturing and export of hosiery goods - During manufacturing and export of hosiery goods manufacturing and export of hosiery goods assessment proceeding, Assessing Officer disallowed assessment proceeding, Assessing Officer disallowed assessment proceeding, Assessing Officer disallowed labour expenses claimed by a labour expenses claimed by assessee on ground that ssessee on ground that same were bogus and assessee was not able to same were bogus and assessee was not able to same were bogus and assessee was not able to substantiate genuineness of same substantiate genuineness of same - On appeal. On appeal. Commissioner Commissioner Commissioner (Appeals) (Appeals) (Appeals) and and and Tribunal Tribunal Tribunal deleted deleted deleted disallowance holding that onus laid on revenue to disallowance holding that onus laid on revenue to disallowance holding that onus laid on revenue to show that payment were made to some ingenuine or show that payment were made to some ingenuine or show that payment were made to some ingenuine or non-existent parties existent parties - Whether authorities below Whether authorities below wrongly placed onus on revenue to establish in wrongly placed onus on revenue to establish in wrongly placed onus on revenue to establish in genuineness and non genuineness and non-existence of parties inasmuch existence of parties inasmuch as when assessee claimed expenses on labour as when assessee claimed expenses on labour as when assessee claimed expenses on labour charges, onus was on it to prove said fact by charges, onus was on it to prove said fact by charges, onus was on it to prove said fact by Shakuntala Ashok Vyas. 6 ITA No. producing cogent an producing cogent and convincing evidence including d convincing evidence including identity of parties along with evidence of payment to identity of parties along with evidence of payment to identity of parties along with evidence of payment to those persons those persons - Held, yes [Matter remanded]. Held, yes [Matter remanded]. In the facts and circumstances of the case of the appellant In the facts and circumstances of the case of the appellant In the facts and circumstances of the case of the appellant and specifically the appellant has not proved genuineness and specifically the appellant has not proved genuineness and specifically the appellant has not proved genuineness of the labour charges paid to those 07 parties with cogent labour charges paid to those 07 parties with cogent labour charges paid to those 07 parties with cogent evidences, there is no infirmity found in the order of the AO evidences, there is no infirmity found in the order of the AO evidences, there is no infirmity found in the order of the AO disallowing disallowing disallowing labour labour labour charge charge charge payments. payments. payments. Therefore, Therefore, Therefore, the the the disallowance of labour charges made in the assessment disallowance of labour charges made in the assessment disallowance of labour charges made in the assessment order by the AO is upheld. order by the AO is upheld. Accordingly, this ground of the appeal is dismissed. y, this ground of the appeal is dismissed.” y, this ground of the appeal is dismissed.

Sr. No. Particulars Pages 1. Ledgers, Ledgers, Ledgers, summary summary summary of of of Job Job Job Work Work Work & & & Invoices Invoices Invoices for 1-8 for for BholaramChoudhary BholaramChoudhary 2. Ledgers, Ledgers, Ledgers, summary summary summary of of of Job Job Job Work Work Work & & & Invoices Invoices Invoices for 9-15 for for UdaybhanSahani UdaybhanSahani 3. Ledgers, summary of Job Work & Invoices for GopalYadav Ledgers, summary of Job Work & Invoices for GopalYadav 16-22 4. Ledgers and Invoices for ZahirAlamHoque Ledgers and Invoices for ZahirAlamHoque 23-32 5. Ledgers and Invoices for Rajaram Mali Ledgers and Invoices for Rajaram Mali 33-47 6. Ledgers and Invoices for Shivkesh Vyas Ledgers and Invoices for Shivkesh Vyas 48-53 7. Annexure A- Invoice to SPJ Sadhana School dated 15 Invoice to SPJ Sadhana School dated 15-01- 54-59 2011 8. Annexure B- Invoice to SPJ Sadhana School dated 15 Invoice to SPJ Sadhana School dated 15-03- 60-68 2011 Shakuntala Ashok Vyas. 7 ITA No.