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Income Tax Appellate Tribunal, NAGPUR BENCH, NAGPUR
PER BENCH This appeal by Revenue is arising out of the order of Ld.CIT(A)-II, Nagpur
vide Order No.CIT(A)-II/517/2010-11 dated 02.07.2014. The assessment was
framed by ACIT, Amravati Circle, Amravati u/s 143(3) of the Income Tax Act,
1961 (in short “Act”) for A.Y. 2008-09 vide his order dated 28.12.2010.
The only issue in this appeal of Revenue is against the order of Ld.CIT(A)
deleting the disallowance of expenses made by the Assessing Officer by
applying the provision of section 40A(3) of the Act i.e. making cash payment in
excess of Rs.20,000/–. For this, the Revenue has raised the following ground:–
“Whether on the facts and circumstances of the case and in law the learned CIT(Appeal)–II, Nagpur was right in deleting disallowance of expenses of Rs.1,19,18,353/– made without deduction of TDS and the payments for the same were made for more than Rs.20,000/– in a single
ITA No. 446/NAG/2014
day in cash, contravening section 194C and 40A(3) of the I.T.Act, 1961 respectively.” 3. It is clarified that the Revenue has raised the issue for contravention of
provision of section 194C for making disallowance as the payments are made
without deduction of TDS and also for making cash payment in excess of
Rs.20,000/– in a single day in violation of provision of section 40A(3) of the Act.
But we have gone through the assessment order, and it is noticed that the
Assessing Officer has not invoked the provision of section 40(a)(ia) of the Act for
making disallowance and hence the issue remains the applicability of the
provision of section 40A(3) of the Act.
Briefly stated facts are that the assessee is a civil contractor maintained
its books of accounts and audited the same under section 44AB of the Act.
The assessee has produced books of accounts and verified by the Assessing
Officer. According to the Assessing Officer, the assessee has made payment of
Rs.1,19,18,353/– on account of labour charges for F.Y 2007–08 relevant to the
A.Y 2008–09 to 52 persons. Before the Assessing Officer, the assessee claimed
that he has paid labour charges directly to the group (Sardars) and the group
in turn made payment to individual person on different dates and all these
payments are made in cash less than Rs.20,000/– individually to the labourers
in the single day. But the Assessing Officer has not accepted the explanation
of the assessee stating that the assessee has made payment exceeding to
Rs.20,000/– in a single day as prescribed in chart to different individual is
reproduced in the assessment order. The Assessing Officer accordingly
ITA No. 446/NAG/2014
disallowed a sum of Rs.1,19,18,353/–. Aggrieved, the assessee preferred
appeal before Ld.CIT(A).
Ld.CIT(A) deleted the addition by observing that the assessee has made
payment to the labourers which was below prescribed limit as prescribed by
the provisions of section 40A(3) of the Act i.e. less than Rs.20,000/–. Ld. CIT(A
dealt this issue in para 7 as under:–
“The above judicial pronouncements have been delivered in identical set of facts as in the case of the appellant. In such circumstances there is clear evidence to establish that each payment was made to individual labourer which is below the threshold limit prescribed by section 40A(3) and hence there is no question of any violation of provisions of section 40A(3) & 40(a)(ia) and in view of the same, the addition made amounting to Rs.11918353/– is directed to be deleted.”
Aggrieved, now the Revenue is in appeal before us.
We have heard the rival contentions and gone through the facts and
circumstances of the case. We find that the assessee has paid wages to
individual workers and vouchers was obtained from representative workers or
the sardars, who is employee of the assessee for accounting purpose in respect
of payments made to individual labourers. It was explained by Ld. Counsel for
the assessee that the payment made to various individual labourers being in
nature of labourer charges was paid below Rs.20,000/–, the provision of
section 40A(3) will not apply. Even the muster register explain the
submissions of the assessee that the payments have been made towards daily
wages and are not in respect of any contract and which are below Rs.20,000/–
ITA No. 446/NAG/2014
as can be evidenced from page 12 to 17 of the assessee’s paper book. In view
of the above, we are of the view that Ld.CIT(A) has rightly deleted the addition
and we confirm the same.
In the result, the appeal filed by the Revenue is dismissed.
Order pronounced in the open court on 08th March, 2018.
Sd/– Sd/– (G.D.AGRAWAL) (MAHAVIR SINGH) HON’BLE PRESIDENT JUDICIAL MEMBER
Dated: 08th MARCH, 2018 *Amit Kumar* Copy to: 1. The Appellant 2. The Respondent 3. The CIT(A), Nagpur 4. The CIT, Nagpur 5. The DR, Bench, ITAT, Nagpur By Order Assistant Registrar ITAT, Nagpur Bench, Nagpur