DCIT, TRICHY vs. C.KAMARAJ, ARIYALUR

आदेश / O R D E R

PER S. JAYARAMAN, ACCOUNTANT MEMBER :

without considering the remand report of the Assessing Officer.

3. The ld. CIT(A) erred in deleting the addition of ₹10,24,568/- towards short term capital gains without remanding the issue under Rule 46A as the related documents had not been produced at the time of assessment.

4. The ld. CIT(A) erred in deleting the addition of ₹1,82,68,745/- by merely accepting that as per the provisions of Sec.194(C) once the PAN data is taken from the transporters there is no requirement of deducting tax. PAN details are only produced before the CIT(A) and TDS was deducted till 30.09.2009 only. The CIT(A) ought to have called for the remand report for the fresh evidences filed before him.

some of the cases even the name of the person signed is not identifiable and whether it is the owner’s signature or the driver’s signature, and only one day this sum has been paid without any details of the trips made etc. In the absence of any verifiable expenses, the expense is not allowable u/s.37. It was further submissions of the ld. DR that the ld. CIT(A) has given relief on the basis of vouchers submitted by the assessee without considering the remand report submitted by the assessing officer. The ld. CIT(A) has allowed the appeal stating that the Assessing Officer did not doubt the genuineness of the expenses, which is contrary to facts as the expenses are entirely disallowed as there is no verifiable details which goes to prove that there is no evidence for making the payments. The Assessing Officer has clearly held in the assessment order and remand report that these payments are not verifiable.

With regard to the addition of ₹10,24,568/- towards short term capital gains, the ld. DR has submitted that the assessee has sold land shown as “mining land” with book value of ₹25,800/- to Grasim Cements which was brought to tax as short-term capital gains. The assessee has produced VAO’s certificate mentioning survey nos. which are agricultural land but the VAO has not certified that agricultural operation had been done on the above land. The assessee has also & 2989/Chny/2014 :- 5 -: not produced copy of sale deed for cross verification. It was further submissions of the ld. DR that the CIT(A) has allowed this issue stating that the assessee has obtained copy of sale deed, chitta, adangal copy along with details of agriculture crops cultivated by the previous owner of the property to prove the contention of the appellant that it is agriculture land which was sold and it is not a capital asset for attracting capital gain. Further, the ld. DR has submitted that the CIT(A) has not remanded this issue under Rule 46A to Assessing Officer as these documents were not produced at the time of assessment and the details of it has not been dealt in the order vis-à- vis the contention of Assessing Officer. On this issue also, the ld. CIT(A) ought to have given an opportunity under Rule 46A while admitting a new evidence which were not produced at the time of assessment.

With regard to the disallowance u/s.40(a)(ia) of ₹1,82,68,745/-, the learned Departmental Representative submitted that the Assessing Officer has disallowed a sum of ₹1,82,68,745/- on the payments made to lorry on contract. The assessee has stated that TDS would not get attracted as the payment does not exceed ₹50,000/- in a year and the lorry owners owning one or two lorries only and most of them are not hired often by the assessee. However, the list produced by the & 2989/Chny/2014 :- 6 -: assessee was verified and payment details were taken from cashbooks and tabulated. The payments made were exceeding ₹20,000/- each and so section 194C is attracted. No TDS was made against these payments. Moreover, PAN details of these lorry owners were not filed by the assessee. So the addition was made u/s.40(a)(ia). It was further submissions of the ld. DR that the ld. CIT(A) in his order has stated that the Assessing Officer has ignored the assessee’s production of PAN details, TDS deducted on the payments made to these parties were prior to 30th September, 2009, the Assessing Officer has not doubted the genuineness of the payment, etc. and allowed the assessee’s appeal. It was further submissions of the ld. DR that no remand report on this aspect was called for by the ld. CIT(A) even though he states that the assessee furnished details of PAN of the parties at the time of assessment, overlooking the facts discussed in the assessment order and allowed the claim of the assessee.

With regard to the disallowance of payment made to Kalaivani Borewells u/s.40(a)(ia) of ₹32,31,708/-, the ld. DR has submitted that the Assessing Officer has disallowed ₹32.31 lakhs u/s.40(a)(ia) for non-deduction of tax towards the payment made to Kalaivani Borewells. The nature of job done is drilling of mines and labour payments have been made on daily basis on the spot to Kalaivani & 2989/Chny/2014 :- 7 -:

Borewells and not to laborers directly. Hence, it can only be a contract and the Assessing Officer has disallowed ₹32.31 lakhs for non- deduction of TDS u/s.40(a)(ia). The ld. DR further submitted that the CIT(A) has placed reliance on the explanation that there is no contract and it is only purchase of materials and payment made to labours. The assessee produced a letter bearing letter pad of “Kalaivani Borewell”, before the CIT(A) claiming that there was not oral or written contract, and their payments were made for supply of materials and the bank account of Kalaivani Borewells was also used to make the payment to labours of assessee. However, the ld. CIT(A) has not called for remand report under Rule 46A and no verification was done about genuineness of that letter.

With regard to the addition towards Royalty received in advance of ₹13,23,303/-, the ld. DR has submitted that during this year, it was found that the assessee has supplied lime stone to Chettinadu Cement apart from royalty and the total payment comes to ₹69.44 lakhs inclusive of royalty, whereas the assessee admitted only ₹56.21 lakhs including royalty. Hence, the difference of ₹13,23,303/- has been rightly added by the Assessing Officer as unaccounted sale of mine stones. However, the ld. CIT(A) has deleted the addition without cross-verifying or getting account copy from “Grasim Cements” which & 2989/Chny/2014 :- 8 -: paid the royalty and to whom the assessee was raising sale bills for lime stones.

5. Per contra, the learned AR relied on the order of the ld. CIT(A) on the issue of addition of Rs.35,00,000/- and hence the relevant potion of the order of the learned CIT(A) is extracted as under:

“4. The Assessing Officer noticed that the appellant had made payment to various lorries of ₹15,00,000 & ₹20,00,000 on 30.09.2009 & 03.11.2009. In the absence of any detailed list, the Assessing Officer treated the same as not allowable u/s.37 of the Act. 4.1 As the appellant submitted fresh evidence by way of proof in respect of payments made to various lorry operators during the course of hearing with the undersigned, a remand report was called for from the AO. The AO submitted in the remand report that in the absence of any verifiable evidence furnished during the course of assessment as well as remand proceedings, the claim of the appellant is not allowable u/s.37 of the Act. 4.2 The appellant has submitted vouchers for the payment of expenses incurred on account of freight, diesel, driver and cleaner batta along with vehicle numbers in consolidated vouchers maintained and obtained signatures of the vehicle owners to whom the payments have been made. Even though separate vouchers are not maintained for each expenditure such as freight, diesel and driver batta all the expenditure grouped together and maintained vouchers which have been produced before the Assessing Officer, who ignored the evidences produced and disallowed the entire expenditure u/s.37 of the I.T. Act. The expenditure incurred is related to the payments towards freight, diesel and driver batta paid in connection with the business of & 2989/Chny/2014 :- 9 -: the appellant whose genuinity has not been doubted by the Assessing Officer and hence the Assessing Officer is not justified in denying the claim of the appellant as all these payments made are related to the appellant’s business expenses and therefore the same are allowed in favour of the appellant. This ground of appeal is allowed.”

6. We have heard the rival submissions and gone through the above portions of the order of the learned CIT(A). We find that the learned CIT(A) duly considered the material and allowed the appeal. Therefore, we do not find any merit in the Revenue’s grounds of appeal and hence the corresponding Revenue’s grounds of appeal on this issue is dismissed.

7. On ground nos.3, 4 & 5 of the Revenue’s appeal, the learned Authorized Representative supported the order of the learned CIT(A) on these issues.

8. We heard the rival submissions and gone through the relevant materials. Since the learned CIT(A) has not given due opportunity on these issues to the learned Assessing Officer and the Revenue has made out the case under Rule 46A, these issues are remitted back to the Assessing Officer for a fresh examination. The assessee shall place all materials in support of his contentions before the Assessing Officer and comply with the Assessing Officer's requirements in accordance & 2989/Chny/2014 :- 10 -:

with law. The Assessing Officer is also free to conduct proper enquiry, however, he shall offer adequate opportunity to the assessee and then pass an order in accordance with law.

10. We heard the rival submissions. Since, the assessee has received the royalty in advance which would subsequently be paid to the Government and such payment can be verifiable for genuineness, we do not find any error in the order of the learned CIT(A) and hence the corresponding grounds of the Revenue is dismissed. & 2989/Chny/2014 :- 11 -: