SRI CHIDANAND GUDADANOOR ,HARPANAHALLI vs. ASSISTANT COMMISSIONER OF INCOME TAX CIRCLE-1 , BELLARY

Per Shri Jason P Boaz, A.M. : This appeal by the assessee is directed against the order of the Commissioner of Income Tax (Appeals), Gulbarga dt.26.07.2017 for Assessment Year 2013-14.

(i) Disallowance of expenditure claimed to Contractors Benevolent Fund (CBF) : Rs.32,477. (ii) Disallowance u/s.40(a)(ia) : Rs.1,69,389. (iii)Disallowance of claim of excess depreciation : Rs.14,56,575.

2.2 Aggrieved by the order of assessment dt.26.2.2016 for Assessment Year 2013-14, the assessee filed an appeal before the CIT (Appeals), Gulbarga, which was dismissed vide the impugned order dt.26.07.2016.

4. Grounds 1 and 8 (supra) being general in nature, no adjudication is called for thereon.

5. Ground Nos.2 & 3 – Disallowance of Expenditure towards Contractors Benevolent Fund (CBF) - Rs.32,477.

5.1 The facts on this issue are that in the course of assessment proceedings, the Assessing Officer noticed that the assessee had debited an amount of Rs.32,477 to the profit and loss account under the head CBF (Contractors Benevolent Fund). The Assessing Officer was of the view that the said expenditure was not allowable under Section 37(1) of the Act and states that when the same was put across to the assessee, the assessee agreed for addition / disallowance of the same. On appeal, before the CIT (Appeals), the assessee put forth submissions to the effect that the said expenditure towards CBF was in fact revenue in nature and therefore allowable under Section 37(1) of the Act. The CIT (Appeals)

Assessing Officer on the ground that the learned Authorised Representative had not come up with any satisfactory explanation that this expenditure was for business purpose or filed reliable material to strengthen his arguments or any similar cases which were considered for allowance by judicial authorities.

5.2 Before us, the learned Authorised Representative for the assessee reiterated that the expenditure incurred towards CBF was revenue in nature and ought to have been allowed under Section 37(1) of the Act by the authorities below. In written submissions, the assessee submits that the Govt. of India enacted legislation namely, Builders & other Construction Workers Welfare Cess Act, 1996, whereby 1% of cost of construction is collected as cess (copies of Govt. of Karnataka orders and translation thereof is at pages 4 to 18 of assessee's paper book). It is as per the above Notification that Rs.32,477 has been deducted in the assessee's case by Govt. of Karnataka, Public Works and Inland Water Transport Department (Details of deduction of Rs.32,477 as per Certificate of Executive Engineer – placed at pages 28 to 30 of Paper Book), which the assessee has claimed in its profit and loss account for the year under consideration. The learned Authorised Representative further submitted that in an identical case of Sri Mruthyunjaya Banakar Vs. ACIT, the co-ordinate bench of this Tribunal in its order in dt.15.6.2018 remanded this issue to the file of the Assessing Officer for fresh examination and adjudication. It is prayed that in the case on hand also this matter be remanded to the file of the Assessing Officer for de novo adjudication.

5.3 Per contra, the learned Departmental Representative placed reliance on the orders of the authorities below.

5.4.1 We have heard the rival contentions, perused and carefully considered the material on record; including the judicial pronouncement cited. It is not disputed that the assessee had debited an amount of Rs.32,477 towards CBF in his Profit & Loss Account for the year under consideration, which was disallowed by the Assessing Officer/CIT (Appeals), inter alia, on the ground that the same was not allowable under Section 37(1) of the Act as it was not revenue in nature.

According to the assessee, the Govt. of India enacted the Builders and other Construction Workers Welfare CESS Act, 1996 and Rules

1% of the cost of construction was to be collected and sums amounting to Rs.32,477 (as per details at pages 28 to 30 of paper book) were deducted in the assessee's case and which he claimed towards CBF in the profit and loss account for the year under consideration. Copies of Govt. of Karnataka’s proceedings / orders in this regard are placed at pages 4 to 18 of paper book. From the perusal of the orders of the authorities below it appears that there papers / documents in respect of expenses towards CBF have not been examined and considered at all. The CIT (Appeals) merely stressed that the addition was agreed to by the assessee before the Assessing Officer and therefore there was no remedy available to the assessee, ignoring the assessee's claims to the contrary put forth before him.

5.4.2 On an identical issue of payments to CBF, we find that a co- ordinate bench of this Tribunal in the case of Sri Mrutyunjaya Banekar in its order in dt.15.6.2018; observing that the authorities below have made and confirmed the addition / disallowance on expenses towards CBF without considering the submissions and evidences filed. In our view, the decision of the co-ordinate bench in the Mrutyunjaya Banakar (supra) applies squarely to the facts of the assessee in the case on hand, as here also the CIT (Appeals) has not examined the claim in the proper perspective and confirmed the disallowance by disregarding the evidence / claims put forth by the assessee. In this view of the matter, we set aside the orders of the authorities below on this issue and restore the issue of allowability of expenditure claimed by the assessee towards CBF to the file of the Assessing Officer for fresh examination, verification and de novo adjudication in the light of details / evidences placed on record by the assessee and our observations in paras 5.1 to 5.4.2 of this order.

Needless to add, the assessee shall be afforded adequate opportunity of being heard and to file details / submissions required in this regard, which shall be considered before adjudicating on this issue. We hold and direct accordingly. Consequently, ground Nos.2 and 3 of the assessee's appeal is allowed for statistical purposes.

6.1 In the order of assessment, at para 5 thereof, the Assessing Officer noticed that the assessee had paid interest of Rs.1,69,384; being interest

Non-Banking Financial Institution (NBFC) which was debited to profit and loss account. The Assessing Officer disallowed the said interest expenditure claimed under Section 40(a)(ia) of the Act on the ground that the same being interest on borrowed capital paid to an NBFC shall not be allowed to be deducted in computing the total income of the assessee as the assessee had failed to deduct tax at source on the said payment. On appeal, the CIT (Appeals) upheld the Assessing Officer’s order on this issue without considering the submissions put forth by the assessee.

6.2 Before us, the assessee in written submissions has contended as under while seeking deletion of the disallowance made by the Assessing Officer u/s.40(a)(ia) of the Act :-

“ (b) It is submitted that the said interest of Rs.1,69,384 is paid to IndusInd Bank which is a Scheduled Bank. Kind reference is invited to the Second Schedule to the Reserve Bank of India Act, 1934 (pages 31 to 34 of paper book at page 33). Since the interest is paid to the Banking Company, the provisions of Sec. ;194A of the Act are not applicable. Therefore, the disallowance u/s.40(a)(ia) is bad in law.” It is submitted that the authorities below did not examine or verify the issue properly and wrongly assumed that IndusInd Bank was an NBFC.

6.3 The learned Departmental Representative submitted that the assessee's claim cannot be accepted at face value. It was prayed that the issue; of whether the assessee paid interest to an NBFC as held by the authorities below or whether it was paid to IndusInd Bank, a Scheduled Bank; requires fresh examination and therefore the same may be set aside to the file of the Assessing Officer for this purpose for de novo adjudication.

6.4.1 We have heard the rival contentions, perused and carefully considered the material on record. From a perusal of the orders of the authorities below it is seen that the interest payment of Rs.1,69,384 was disallowed under Section 40(a)(ia) of the Act for failure on the part of the assessee to deduct tax at source on such payment made to an NBFC.

Before us and before the CIT (Appeals) it has been submitted by the assessee that the interest of Rs.1,69,384 was paid to IndusInd Bank, a Scheduled Bank, and not to an NBFC as erroneously held by the authorities below and since the said interest was paid to a Banking Company, the provisions of Sec. 194A of the Act were not applicable or attracted and therefore the disallowance u/s.40(a)(ia) of the Act was liable to be deleted.

6.4.2 In the factual / legal matrix of the case, as laid out above, we are of the opinion that in the light of the conflicting views and factual assumption of the authorities below and the assessee, this issue requires to be examined afresh in the light of the contrary claims. We, therefore, in the interest of substantial justice and equity, set aside the orders of the authorities below and restore the matter of the allowability of the assessee's claim in its profit and loss account for deduction of interest paid by it to IndusInd Bank for fresh examination, verification and adjudication after affording the assessee adequate opportunity of being heard and to file details / submissions / evidences required, which shall be duly considered before deciding this issue. The Assessing Officer is accordingly directed. Consequently, Ground Nos. 4 & 5 of the assessee's appeal is allowed for statistical purposes.

7.1 The assessee had claimed depreciation @ 40% on Air Compressor, Centering Material, Concrete Mixes, Hot Mix Plant, JCB, Mechanical

Sprayer, Miller & Tippers. In the order of assessment, the Assessing Officer restricted the claim of depreciation to 15%. On appeal, the CIT (Appeals) upheld the disallowance of depreciation by the Assessing Officer.

7.2 Before us, the assessee put forth the following written submissions :-

7.3 The learned Departmental Representative supported the orders of the authorities below.

7.4.1 We have heard the rival contentions, perused and carefully considered the assessee's written submissions (supra); the other material on record. The facts as borne out from the record show that the assessee claimed depreciation @ 40% on certain items which was restricted to 15% depreciation thereon by the authorities below. Before us, in written submissions extracted in para 7.2 (supra) the assessee claims depreciation at various rates of 100%, on Air and Control equipments; water pollution control equipments; 40% on tippers, vibrators, etc and 30% on JCBs which contradicts both his original claim of 40% depreciation on all items; which was restricted to 15% by the authorities below.

7.4.2 We find that, on similar facts on the same issue of claim of depreciation on similar items, a co-ordinate bench of this Tribunal in the case of Mrutunjaya Banakar Vs. ACIT in dt.15.6.2018 has observed that the CIT (Appeals) has upheld the disallowance without considering the written submissions, the evidences filed and the rates of depreciation applicable item-wise and since it is clear that the CIT (Appeals) had not properly examined the issue, therefore the matter was remanded to the file of the Assessing Officer for de novo assessment. In our view, the factual position in the aforesaid observations and decision of the co-ordinate bench of this Tribunal in the case of Mrutunjaya Benakar Vs. ACIT (supra) is squarely applicable to the facts of the case on hand and we concur with the observations and findings rendered therein and therefore, following the same, we set aside the orders of the authorities below and restore the issue of the assessee's claim for being allowed depreciation on the various items mentioned, to the file of the Assessing Officer for fresh examination, verification and adjudication item-wise in tune with the rates of depreciation applicable in the year under consideration. Needless to add, the assessee shall be afforded adequate opportunity of being heard

Assessing Officer before deciding the issue. The Assessing Officer is accordingly ordered.

Consequently, ground Nos.6 & 7 of the assessee's appeal is allowed for statistical purposes.

Order pronounced in the open court on the 7th day of Nov.,2018.