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Income Tax Appellate Tribunal, KOLKATA BENCH “B” KOLKATA
Before: Shri S.S.Godara & Dr. A.L. Saini
O R D E R
PER S.S.Godara, Judicial Member:
- This Revenue’s appeal and assessee’s cross objection for assessment year 2011-12 arise from Commissioner of Income Tax (Appeals)-8 Kolkata’s order dated 12.08.2016, passed in case No. CIT(A)Kolkata-8/100180/2014- 15, in proceedings u/s. 143(3) of the Income Tax Act, 1961; in short ‘the Act’. Heard Learned CIT-DR. Case file perused.
The Revenue’s former substantive ground pleads that CIT(A) has erred in law as well as on facts in reversing the Assessing Officer’s action disallowing assessee’s salary expense claimed of ₹3,16,72,524/- as bogus in made in assessment order as reversed in lower appellate proceedings. The CIT(A)’s detailed discussion qua the instant issue reads as under:- & CO 76/Kol/2016 A.Y. 2011-12 ACIT Cir-29, Kol. Vs. Sh. Bablu Hait Page 2 “5. Disallowance out of salary expenditures-vis-a-vis print-out of the P&L a/c taken during the survey: ₹3,16,72,524/- [Ground No.1 a.] 5.1 Assessment order: From the P&L A/c for the period from 01/04/2010 to 08/03/2011 as extracted from Tally Books of Accounts during the course of survey, it is seen that the net profit was computed at Rs.3,30,71,672.41 whereas Gross profit is computed at Rs.3,38,02,191.25. From the estimated P/L A/c from 01/04/2010 to 08/03/2011 it is seen that direct expenses of Rs.1,34,29,371.75 consists of Rs.69,58,704/-. But it is seen from the P&L A/c for the AY 201-12 submitted by AR that the assessee debited Rs.3,75,89,900/-, Rs,15,10,320/- & Rs.1,10,900/- under the head salary salary-uncovered staff & salary (office staff) respectively totalling Rs.3,92,11,120/-. But as per details mentioned above, total salary debited upto 08/03/2011 was Rs.69,58,704/-. The AR was asked to clarify as to why salary for the FY 2010-11 relevant to AY 2011-12 had been so high with regard to the alary for the period from 1/4/2010 to 8/3/2011 as extracted from the Tally Books of Accounts during the course of Survey. In reply the AR filed a written submission stating as below: ‘... .. the figures as appeared in the statements of account seized during survey was not correct because of short & wrong posting of all vouchers relating to income and direct expenses i.e. salaries, ESI & EPF. Similarly, posting of all vouchers relating to indirect expenses was also not completed’. But the contention of the AR is not tenable. Thus it is very much clear that the assessee has claimed excessive & unjustified salary which was not at all incurred by him because if amount of alary for 11 months is Rs.69,58,704/-, then amount of salary for a period of less than one month can never be so high. Therefore amount of Rs.3,22,52,416/- (Rs.3,92,11,120- Rs.69,58,704) was shown by the assessee as salary for the period from 09/03/2011 to 31/03/201, which is abnormal. Therefore salary for the month of March 2011 is calculated at Rs.69,58,704 i.e. R.5,79,892/- 12 Therefore salary of Rs.3,16,72,524/- [3,92,11,120 – (69,58,704+5 5,79,892)] = [3,92,11,120 -75,38,596] = 3,16,72,524/- is treated as bogus salary expenses claimed by the assessee & added to his total income. [To add: Rs.3,16,72,524/-] 5.2 Ld. AR’s explanation: Ground No.1(a): Disallowance of Salary – Rs.3,16,72,524/- The addition made on account of salary and wages, alleging to be bogus, is totally based on wrong documents (illustrative entries made during training of account which is not complete) and on wrong assumptions. Learned AO has also not considered nature of my business which is labour oriented, wages paid which can be worked out and cross checked with documents showing payment of contributions to employees PF and ESI for employees, past precedence and ratio of expenses on account of salary and wages to gross revenue. Page 17 of the Paper Book contains a statement showing the last three(3) financial year’s comparison of salary with the service income of the assessee. Thus the addition is likely to be deleted in appeal. The audited P&L Account and Balance sheet for the previous year ended 31.03.2011 substitutes any provisional or illustrative P&L account which was obtained by the AO during survey on 08.03.2011, which was prepared based on illustrative entries and has nothing to do with complete entries relating to business transactions. From page 15 and 16 contains the copy of Balance sheet and P&L Account of the assessee which obtained by the AO during the survey. The assessee has large number of regular, casual and contractual employees. More than one thousands of employees are registered with Employees PF organization & CO 76/Kol/2016 A.Y. 2011-12 ACIT Cir-29, Kol. Vs. Sh. Bablu Hait Page 3 and regular contribution is made to PF. Assessee also pays ESI. From page 47 to 129 of the Paper Book contains the copy of ESI return duly submitted by the assessee for the AY 2011-12. The records relating to EPF, ESI, profession tax are external evidences which shows magnitude of man power engage, payment of salary and wages, these have deliberately been ignored by the learned AO just to make huge disallowance by branding a major part of salary as bogus salary. From page 18 to 43 of the Paper Book contains the statement of employees alongwith their Provident Fund number, ESI number, Bank Account number, wherever available and the total amount of salary paid to them. Assessee had shown net profit of 4.84% which is very reasonable considering the nature and size of business of manpower supply, during the previous year. However, learned AO has determined net profit @ 65.09%/. In other words learned AO has made additions equal to 60.25% of gross receipts. These are very high by any standard and is a clear case of intentionally making high pitched assessment and raising huge demands which can very badly effect the business of assessee. 5.3 Discussion, and Appellate Decision: 5.3.1 It is obvious that the DCIT AO, because of the expectation/pressure that survey had been carried out, to make fantastical additions/disallowances in the assessment. The DCIT AO has just jumped to presume that the accounts posted in the Tally Software as on the date of survey-were fully posted, complete and final. This is just not the case, nor is it the case in any other case that the books of accounts are posted fully up-to-minute, for its just cannot practically be. Per se the survey conducted itself, there does not seem to have been any finding of any discrepancy of any sort – for if that had been, then definitely that would have been recorded in the statement/confrontation during the survey. Even if it were not during the course of the survey, when the then authorised officer(s) who conducted the survey was finalising the survey report, he would have mentioned the finding and aberrations, if any, notice during the survey. But this is not the case here –for the DCIT AO has not referred to any statement, confrontation, tangible material – except for the computer print-out, which is but jut a mechanical print-out. The computer print-out is just print-out of the postings that had been done so far, it is not the complete posing of all the transactions so far. 5.3.2 The said computer print-out is hereunder: RITU Enterprise A 118 Lake Gardens Calcutta 700045 Profit & Loss A/c 1-Apr-2010 to 31 Mar-2011 Particulars 1-Apr 2010 to 31-Mar-2011 Particulars 1-Apr-2010 to 31-Mar Direct expenses 1,34,29,37.75 Sales Accounts MAIANTENANCE 4,68,00,367.00 CHARGES CLEAANING 1,68,684.00 4,68,00 MATEIRIALS CONVENIANCE 2,39,169.50 Direct Incomes 4,31,196.00 EXPENSS CLEANNIANG MATERIALS 4,31,196.00 CHARGES EPF 39,61,654.00 ESI 17,31,717.00 SALARY 69,58,04.00 TEA & TIFFIN 79,334.00 EXPENSES & CO 76/Kol/2016 A.Y. 2011-12 ACIT Cir-29, Kol. Vs. Sh. Bablu Hait Page 4 TELEPHONE 1,38,774.25 EXPENSES UNIFORM EXPENSES 1,51,33,4.00 Gross Profit c/o 3,38,02,191.25 4,72,31,563.00 4,72,31,563.00 Indirect Expenses 7,81,216.25 Gross profit b/f 3,38,02,191.25 ACCOUNTING 33,648.00 Indirect incomes 50,697.41 CHARGES WASHING CHARGES ADVERTISMEKNT 82,343,00 CHARGES BANK CHARGS 29,744.00 BANK INTEREST 33,305,00 CONSULTANCY 24,500.00 CHARGE ELECTRICITY 34,760.00 CHARGGES ELECTRONICS 1,650.00 SGOODS ENTERTAINMENKT 85,395.75 EXPENSES INSURANCE 2,23,965.00 LAUNDRY CHARGES 6,827.00 MEDICAL EXPENSE 9,787.00 OFFICE EXPENSES 6,294.00 POSTAGE 7 TELEGRAM 3,615.00 EXPENSES PRINITING & 56,782.50 STATIONERIES REPAIRING CHARGES 57,889.00 TAXES 7 DUTIES 90,710.00
Net profit 3,30,71,672.41 Total 3,38,5,888.66 3,38,52,888.66 Sd/- Sd/- 8/3/11 It is obvious that the above P&L account is but just the print-out of the accounts as posted as on the date of survey; it is not the final accounts. Towards this observation, it can be observed for instance, that statutory payments towards EPF and ESI are at posted ₹39,61,654/- and at ₹17,31,718/-; whereas the salary posted is only upto ₹69,58,704/-. Thus this itself – the high component of EPF and ESI vis-a-vis Salary – shows that the accounts were not yet fully posted, for it just couldn’t be so. The final and audited P&L account is: RITU ENTERPRISE (Proprietor Bablu Haiti) A 118 LAKE GARDENS, CALCUTTTA 70045 PROFIT & LOSS ACCOUNT FOR THE YEAR ENDED 31ST MARCH 2011 (All Figures are in Rs.) To salary 375589900 By Maintenance Charges 52979399 “ Salary-Uncovered Staff 15103320 “ Salary – office staff 110900 By Cleaning Materials 660097 “EPF 2691313 “ ESI 1805521 By Washing charges 55609 “ Bonus 2584854 “ Leave Encashment 98087 “ Cleaning Materials 1132863 “ Uniform expenses 863867 “ Conveyance expenses 432624 “ Washing charges 263027 “ Tea & tiffin 111627 “ Telephone-expenses 170823 “ Entertainment expenses 63676 “ Advertisement 96383 “ Accounting charges 24824 “ Bank charges 36084 & CO 76/Kol/2016 A.Y. 2011-12 ACIT Cir-29, Kol. Vs. Sh. Bablu Hait Page 5 “ Bank interest 59550 “ Repairs & Renewals 71199 “ Consultancy Charges 45824 “ Office expenses 24570 “ Printing & stationeries 73721 “ Medical expenses 10604 “ Electricity ch 40756 “ Potage & Telegram 3616 “ Taxes & Duties 85886 “ License fees 8824 “ Insurance 17841 “ Staff Welfare 29110 “ Depreciation 149966 “ Net profit trfd to capital a/c 259509 -------------- -------------- 53695105 53965105 5.3.3 The creditable supporting evidences to look into is the statutory payments towards employee social security schemes-ESIC,PF- for when making salary payments the employer is statutorily required to make the payments towards ESIC and PF. The employee-wise list/details sample is hereunder: Details of salary paid in the year 2010-11 Employee Name PF No. ESI Number Bank A/c No. Total amount 1.Jamp Kr. Sardara WB- 4112706981 0102010120890000 41,690 34783/1074 2.Bijoy Barik WB34783/148 4112544582 0101010120913000 50,249 3. Hrishikesh Mondal WB34783/565 4112540025 0102010120937000 39,850 4. Kalpana Pare WB34783/47 4110002923 0102010121026000 44,792 5. Kartick Das-2 WB34783/857 4112650622 0102010120982000 48,122 6.Kiran Roy WB34783/475 4110007240 0102010121033000 47,113 7.Manik Majumdar WB34783/837 4112540018 0102010120951000 12,459 8. Nimai Baidya WB34783/1023 4112695156 0102010120906 42,941 9. Nirmal Roy WB34783/1142 4112814091 0102010121002000 48,865 10 Rekha Samaddar WB34783/1143 4105007654 0102010121019000 44,046 11. Sanjay Hazra WB34783/1070 4112708314 0102010120920000 41,826 12.Shyam Ch. Karmakar WB34783/1141 4112811992 0102010120999000 46,914 13. Sumitra Mistry WB34783/150 4110002265 0102010121040000 42,692 14. TapanMondal WB34783/271 4111044065 0102010120975000 46,594 15. Santosh Kr. Das WB34783/1017 4112695152 0102010120883000 47,518 16. Tamal Mukhari WB34783/1216 4113189554 0102010120968 42,920 17.Abhijit Adhikary WB34783/1309 4113194782 0102010120944 27,738 18. Rumpa Bera WB34783/807 4110291085 13,368 19.Bikash Haldar WB34783/997 4112695141 0102010121651 15,737 20. Deb Kumar Das WB34783/494 4112520552 0102010124584 63,168 21. Susanto Kr. Pandav WB34783/1371 4113224783 0102010125772 15,174 22. Bablu Das (W) WB34783/360 4112503781 0102010124546 31,138 23. Bapi Mondal WB34783/1064 4112705243 0102010124539 48,013 24. Biswajit Saha WB34783/1036 4112697799 0112010124515 45,902 25. Biswanath Kanu WB34783/885 4112656800 0102010124591 31,830 26. Biswanath Kar WB34783/563 4112540036 0102010124508 47,897 27. Chandan Mukherjee WB34783/374 4112514792 0102010124492 36,545 28. Daud Ali Molla WB34783/265 4111049823 0102010124485 41,294 29. Debobrata Das (W) WB34783/202 4111039976 0102010124607 39,814 30. Giridhari Bhowmick WB34783/1038 4112700676 0102010124478 44,637 31. GoutamMaity WB34783/473 4112522439 0102010124461 47,865 32. Jayraj Joyswal WB34783/473 4112522436 0102010124454 40,769 33. Md. Isha WB34783/561 4112540022 0102010124423 36,764 34. Rabi Das WB34783/147 4111045073 0102010124430 43,518 35. Rabi Prasad Mallick WB34783/1022 4112697802 010210124409 43,325 36. Rahat Hussain WB34783/827 4112651593 0102010124713 34,313 37. Rajesh Mahato (W) WB34783/263 4111049819 0102010124393 48,477 38. Ratan Maity WB34783/1049 4112704160 0102010124386 38,774 & CO 76/Kol/2016 A.Y. 2011-12 ACIT Cir-29, Kol. Vs. Sh. Bablu Hait Page 6 39.Sarfaraj Hussain WB34783/976 4112690978 0102010124379 35,999 40. Shambu Routh WB34783/273 4111049822 0102010124355 44,767 41. SK. Mushtaque WB34783/1072 4112706979 0102010124348 36,186 42. Somnath Bera WB34783/1088 4112708319 0102010124331 36,373 43. Subhash Singh WB34783/1020 4112695151 0102010124324 43,341 44. Surojit Das WB34783/831 4112650625 0102010124317 45,967 45. Tanmoy Chackroborty WB34783/506 4112520546 0102010124300 39,579 46. Tarak Biswas WB34783/977 4112668124 0102010124614 49,256 47. Tukai Biswas WB34783/921 4112656805 0102010124560 40,037 48. Ashutosh Kumar WB34783/1021 4112704145 0102010124362 53,812 49. Gayandra Kr. Sahoo WB34783/1075 4112708315 0102010124553 49,882 50. S.K. Gulam Hussain WB34783/518 4112544583 0102010124522 53,376 51. Sontosh Sutar WB34783/532 4112545318 0102010125291 56,271 52. Sujit Augusty WB34783/1068 4112705245 0102010124621 59,808 53. Biplab Dutta WB34783/1442 4113298044 0102010124577 16,430 54. Uttam Mondal WB34783/1280 4112806991 18,996 55. Khokan Haldar (B) WB34783/799 4112650619 0102010124447 41,959 56. Asit Kr. Das WB34783/862 4112664439 16,121 Bejoy Dey WB34783/1293 4113199418 0102010125062 0 Tapan Mridha WB34783/1009 4112695154 0102010125048 3,739 Jiban Paul WB34783/1027 4112697800 0102010125024 3,940 Bijendra Paul WB34783/852 4112650623 0102010124956 0 Ajoy Das WB34783/1240 4113189609 0102010125116 0 Prasenjit Gupta WB34783/1151 4112814090 0102010125000 1,589 Anal Kanti Mondal WB34783/1162 4112811993 0102010125093 1,229 Anju Moitra WB34783/994 4110294989 0102010124980 280 Bimal Patit WB34783/995 4112697797 0102010124850 2,818 Ganesh Bar WB34783/965 4112668121 0102010124843 3,843 Jayati Dutta WB34783/1555 4113378836 0102010125307 0 528 Nilu Halder WB34783/507 4110009811 0102010125017 2,588 1529 Prasenjit WB34783/1244 4113189659 0102010124966 0 Mondal WB34783/1245 1530 Rabin 4113178761 0102010124836 0 Mallick 1,531 Subham WB34783/1560 4113372063 0102010126410 0 Sharma 1,532 Surajit WB34783/533 4112540013 01012010124997 3,258 Nayak 1,533 Swapan WB34783/1057 4112704157 0102010124942 3,570 Das 1,534 Ujjal Bhuian WB34783/1273 4113193084 0102010125086 0 1,535 Uttam WB34783/987 4112668129 0102010125109 4,163 Chakraborty 1,536 Yasabanti WB34783/453 4112514809 0102010125154 0 Pandab-3 1,537 Nimai WB34783/267 4111049821 0 Biswas 1,538 Debu Nath WB34783/502 4112540007 0 1,539 Manas WB34783/188 4111040379 2,823 hazra 1,540 Jayanta WB34783/966 4112668123 0 Bhahma 1,541 Pinaki WB34783/1173 4112816329 0 Bhadra 1,542 Raju Majhi WB34783/985 4112668128 3,166 1,543 Sanjoy WB34783/969 4112668117 2,962 Biswas 1,544 Biplab WB34783/1139 4112816316 0 Mondal 1,545 Anirudha WB34783/1135 4112811995 2,763 Haldar 1,546 Bikash 17,000 Haldar & CO 76/Kol/2016 A.Y. 2011-12 ACIT Cir-29, Kol. Vs. Sh. Bablu Hait Page 7 1,547 Suresh 11,496 Singh 1,548 Debasish WB34783/181 4111039459 3,468 Paul 1,549 Sourav WB34783/1229 4113178423 2,372 Bhattacharya 1,550 Srikanta C WB34783/1003 4112695145 0142010110602000 3,263 howdhury 1,551 Arup WB34783/1081 4112800894 822 Bhattacharya 1,552 Arup WB34783/1081 41128000894 1,355 Bhattacharya 1,553 Dibakar WB34783/140 4111054710 01012010136723000 3,581 Halder 1,554 Swarup WB34783/279 4112520538 1012010136006000 3,074 Saha 37589900 There were 1,554 number of employees/workers during the year, The appellant has furnished copy of the ESI Return. The above list – complete with employee bank account, PF No., ESIC No- is the irrebuttable proof and evidence. The appellant supplies housekeeping staff to 24 number of different establishment, organizations scattered at different locations. Client-wise, the salary paid details are: RITU ENTERPRISE DETAILS OF SALARY PAID FOR 2010-2011
AMRI AMRI SUSHRUTA WOOD KPC FORTIS Bhagirathi & arrear CLINIQ &Arrear LANDS & Arrear 7vasa APRIL 916237 54731 586296 140477 428556 208246 90469 MAY 1064181 53858 741347 139538 432627 191304 104240 JUNE 1117844 63041 655513 139469 453447 193362 99535 JULY 1030956 60871 694438 139254 46698 193241 162661 AUG 1056838 58133 697934 139779 453978 207644 100036 SEPT 1060991 62217 674159 160278 467115 198477 101703 OCT 988320 122210 692837 289487 403866 209250 100090 NOV 1038204 60553 663310 23036 476505 204468 99823 DEC 1058033 742237 142549 531461 211260 99588 JAN 1178725 67253 762634 166510 623639 206963 97773 FEB 1237413 64275 795736 167078 696990 202784 99296 MAR 1268272 62554 1015945 169860 654315 201719 99387 TOTAL 13016014 729696 8722786 1817315 6091397 2428718 1254603 RUBY PUNJAB GENESIS SURAKSHA NEOTIA HARSH NEOTIA MISSION TMCT HOUSE MEDICAL MEDIPLUS GENERAL CLUB OF MERCY 315741 41204 65257 3108 5947 307945 41522 65000 3190 314260 42234 63702 7465 42901 70000 6918 10009 42538 67831 16098 6618 10009 3524 42936 66425 124176 13556 21683 13432 41372 132310 100987 9116 10192 10742 6602 41581 67927 100368 8922 12895 10588 6719 41369 & CO 76/Kol/2016 A.Y. 2011-12 ACIT Cir-29, Kol. Vs. Sh. Bablu Hait Page 8 42090 69489 109924 9562 13924 10491 6827 40198 66500 104887 15011 13366 8892 4451 13964 40465 65031 97638 14502 11432 10070 6229 14532 937946 500770 799472 654078 87313 61809 109036 47784 28496
INITIATIV INFINITY LOURDES SREE DHANUKA MANAGALAM HCL SUNRISE TOTAL ACADEMY 2426 2858695 13242 3870 31611864 4521 13840 6000 3174233 4461 14304 4452 5806 2909570 4204 882 14053 5806 6000 2801905 7928 17309 9741 11197 27000 3080273 4364 6148 5900 5300 12545 31511998 4290 7409 5419 6194 14651 2852862 2826497 9172 8400 4934 7452 13094 3408856 8448 6867 8796 5787 11142 9539 3581422 8084 3846 8318 5806 11129 12591 3781725 55472 10713 57262 55439 50271 74090 49875 27000 3781725 5.3.4 What is also relevant to look at is the comparative profit percentage of past AYs. Last three (3) financial years comparison of salary with the service income Particulars AY 2009-10 AY 2010-11 AY 2011-12 A Service Income (Total) 40,669.630 46,348,344 52,979,39 Salary & wages 28,149,604 31,864,408 37,589,900 Salary-uncovered staff 1,246,800 1,211,614 1,510,320 Salary-office staff 106,400 110,900 B. Total salary & wages 29,396,404 33,182,422 39,211,120 C. Percentag (B/A) 72.28 71.59 74.01 So, there is nothing amiss in this AY 2011-12 The Ld. AR has also brought to notice that the assessments for the preceding AYs 2009-010 and 2010-11 had been completed u/s. 143(3), and there was no such issue; except for some petty disallowances. 5.3.5 Thus, the print-out as on the date of survey of the P*&L a/c, is but just a print-out of the postings done in the accounts so far; it is not the complete and final posting, even upto the date of survey – for it is just cannot practically be so. The final accounts for the year are finalised much later; and the accounts have been audited u/s/. 44AB. The appellant has proved by tangible statutory evidences – being ESI/PF payment. The profit percentage is comparable as in preceding AYs. Thus the impugned disallowance is hereby Deleted.
We have given our thoughtful consideration and Learned CIT DR vehemently contends seeking to revive the impugned salary disallowance as bogus expenditure. We find no merit in Revenue’s instant former substantive ground. We make it clear first of all that assessee has already filed a & CO 76/Kol/2016 A.Y. 2011-12 ACIT Cir-29, Kol. Vs. Sh. Bablu Hait Page 9 compilation chart of its total salary and wages vis-a-vis service income right from assessment year 2009-10 to impugned assessment year 2011-12 sufficiently indicating the impugned expenditure to be within same range. It has come on record that assessee runs 24 working establishments at different places and its payees ESI/PF details form part of record. We find that the Assessing Officer never made even a single effort to either summon any of the assessee’s payees or for getting their records verified from State Insurance or PF authorities. We therefore conclude that the CIT(A) has rightly reversed assessment findings disallowing assessee’s salary expenditure claimed to be bogus in this peculiar facts and circumstances. The Revenue fails in its instant first substantive ground therefore.
Next comes Revenue’s latter substantive ground pleading that CIT(A) has erred in law as well as on facts in deleting addition of ₹6,19,764/- in the nature of undisclosed income due to alleged difference shown and Form 26AS. We find from para 7.2.2 page 13 of the CIT(A)’s order that the assessee has successfully reconciled the impugned difference emanating for the sole reason of non-recognition of income in the impugned assessment year. The Revenue fails to dispute all these clinching reconciliation details. We therefore decline the Revenue’s latter substantive ground as well. 5. Learned counsel representing assessee informs us that its CO 76/Kol/2016 is only supportive of CIT(A)’s finding under challenge in Revenue’s appeal. We hold the same to have been rendered infructuous as we have already upheld the CIT(A)’s order in Revenue’s appeal. 6. This Revenue’s appeal whereas assessee’s cross objection is dismissed as rendered infructuous. Order pronounced in the open court 30/11/2018 Sd/- Sd/- (लेखा सद&य) (�या(यक सद&य) (Dr. A.L. Saini) (S.S.Godara) (Accountant Member) (Judicial Member) Kolkata, *Dkp, Sr.P.S )दनांकः- 30/11/2018 कोलकाता ।