ACIT, CIR-2, BURDWAN, BURDWAN vs. DILIP SAHA, BURDWAN

IN THE INCOME TAX APPELLATE TRIBUNAL, KOLKATA ‘A’ BENCH, KOLKATA Before: Shri P.M Jagtap, Accountant Member and Shri S.S. Viswanethra Ravi, Judicial Member

I.T.A. No. 582/Kol/2014 A.Y 2010-11

Assistant Commissioner of Income Tax……………………………................................... ….. Appellant Circle-2, Burdwan Aaykar Bhawan, Court Compound, Burdwan-713101. -Vs- Dilip Saha PAN:ALOPS2433E Mirchoba, Nutan Colony P.O Sripally Dist-Burdwan-713103.…………….......................................... Respondent

AND

I.T.A. No. 622/Kol/2014 A.Y 2010-11

Dilip Saha……………………………................................... ……………. Appellant PAN:ALOPS2433E Mirchoba, Nutan Colony P.O Sripally Dist-Burdwan-713103

-Vs- Assistant Commissioner of Income Tax…………………………………………………………..Respondent Circle-2, Burdwan Aaykar Bhawan, Court Compound, Burdwan-713101.

1 ITA Nos. 582 & 622/Kol/14 Dilip Saha

Appearances by:

Shri Sallong Yaden, Addl. CIT, ld. Sr.DR for the revenue None appeared for the assessee

Date of hearing: 15-03-2017 Date of pronouncement: 05-05-2017

Shri S.S. Viswanethra Ravi , JM: ITA No. 582/Kol/2014 A.Y 2010-11 ( by the revenue)

This appeal of revenue is against the order dt: 30-01-2014 passed by the Commissioner of Income Tax-(Appeals), Asansol for the assessment year 2010-11.

2 ITA Nos. 582 & 622/Kol/14 Dilip Saha

time to time appeared and furnished documents and explanations in support of assessee’s filing of said return. During the assessment proceedings the AO found that the assessee made payment to the labour sardars/labour contractors without deduction of TDS, which is mandatory as per provisions of section 194C of the Act. The assessee claimed such expenditure of Rs.1,26,52,944/- in his return. The assessee submitted before him that the labour sardars are neither the contractors nor the sub-contractors. The labour sardars are employed/deployed by the labour union to collect the money in bulk and distribute the same amongst the labourers, who are ultimate beneficiaries and not the labour sardars i.e in question. These labour sardars are remunerated by the union only for the job done. The collected money distributed amongst the labours/labourers by the labour sardars on behalf of assessee and as such deducting of TDS from the said payment amount does not arise at all. The AO was not satisfied with such explanation of the assessee and as such the provision of Section 194C is attracted. Accordingly, he proceeded to make an addition of Rs.1,26,52,944/- u/s. 40(a)(ia) of the Act and added the same to the total income of the assessee.

a) Certificate of Railway Contractors Labour Union (W.B), Katwa Branch b) Disbursement register, and c) Certain case decision in favour of assessee 6. Considering the submissions of assessee, the CIT-A directed the Assessing Officer to delete the addition of Rs.1,26,52,944/- by stating as under:-

3 ITA Nos. 582 & 622/Kol/14 Dilip Saha

b. As per prevailing practice and business control, payment was made through Trade Union (CITU) leaders who disburses to actual labourers. c. The contract the appellant is executing is an integrated one for railways and not labour contract exclusively. The work was executed by appellant himself with help of labourers. The 'labour sardars' are not suppliers of labourers but facilitators for payment of wages. d. That the alleged labour leaders are by themselves labours as visible in labour register. e. The sum was debited in Profit and Loss Account as 'wages' and not payment to contractors. In support evidence relied upon are:- a. Certificate of Railway Contractors Labour Union (W.B.) Katwa Branch. b. Disbursement register where payment to labours were made at RS.130/- per day. c. Certain case decision in favour of assessee. 24. The matter is examined. In this case the alleged labour contractor is undoubtedly a labourer himself. He gets the same sum as any other labourer i.e. at Rs.130/- per day. The entire affair is managed through Trade Union. Further contract is executed by him and he has not subcontracted any part of work to execute the contract. The fact is that the so called 'labour sardars 'are not suppliers of labourers but facilitators for payment of wages. 25. Considering all aspects the case as discussed above, I hold that the payments to labour sardars are not the ones falling in ambit of section 194C. Accordingly I direct Assessing Officer to delete the addition of Rs.1,26,52,944/-. Ground 6 is accordingly allowed.”

7.1. We find that the ld CITA had deleted the disallowance on the ground that there is no contract entered into by the assessee and the labour sardars. We find that the impugned issue is covered by the decision of the Hon'ble Calcutta High Court in the case of CIT vs Stumm India in ITA No. 127 of 2009 dated 16.8.2010 , wherein it was held that :-

"The court: This appeal is sought to be preferred against the judgment and order of the Ld. Tribunal in relation to the assessment year 2005-06, dated October 24, 2008, being aggrieved by a portion of the same.

It is urged before us that the learned Tribunal ought not to have accepted the judgment and order of the CIT (Appeal) who has quashed the disallowance of deduction of Rs.41,33,710/- and on 4 ITA Nos. 582 & 622/Kol/14 Dilip Saha

account of tax deduction at source. The learned Tribunal has recorded the fact that the department has not been able to bring any material on record to show that the assessee has made the payment to the transporters in pursuance of contract for carriage of goods of the assessee and the question of deduction at source under section 194C does not and cannot arise. In the absence of evidence of payment made by the assessee to the transporters, the assessee cannot be saddled with the liability of deducting tax at source. Before us no other point has been urged not it is said that the aforesaid fact finding is truthful without any basis whatsoever."

7.2. We find that the decision of this tribunal in the case of Samanwaya vs ACIT reported in 34 SOT 332 in ITA No. 484 (Kol) of 2008 dated 23.4.2009 directly supports the case of the assessee wherein it was held that :-

"We find that in this case, admittedly, the labour sardars in the present case has no locus standi as labour contractor as a labour sardar and a labour contractor are as different as chalk and cheese. We find that there was no contract between the assessee and the labour sardars for supply of labourers and without which there cannot be any application of section 194C and as such the invocation of provision of section 40(a)(ia)is outside the scope and ambit of such enactment. In view of the matter, we are of the considered opinion that section 194C(2) being not applicable in this case, the disallowance of Rs. 74,33,210/- made by the Assessing Officer by invoking section 40(a)(ia) of the Income Tax Act, 1961 and sustained by the ld CIT(A) is hereby deleted. This ground of the assessee is allowed."

7.3. We also find that the decision of this tribunal in the case of ACIT vs Supreme Construction in ITA No. 1252/Kol/2013 dated 7.9.2016 had held as under:-

"9. We have heard rival contentions of both the parties and perused the materials available on record. At the outset, we find that AO has called the labour contractors by issuing summons u/s. 131 of the Act and their statements were duly recorded. The AO failed to bring anything on record that the labour charges were paid in pursuance of contract either in writing or the oral with the labour sardar. The AO has held that the assessee has not complied the provision of Sec. 194C r.w.s. 40(a)(ia) of the Act on the presumption and surmise. There is no evidence that the payments have been made to the contractors. We do not find any merit in the arguments placed by Ld. DR in this connection. The AO has given the clear finding in his order which is as follows :

"In my opinion, all these labourers who are treated as Labour Sardars are enjoying some privileged position in the eyes of assessee because the assessee collects other ITA No. 18/Kol/2014 M/s. Kwality Construction, AY 2009-10 labourers through them, make payments to the other labourers in their presence, though there is no written contract. In the absence of any documentary evidence, I can't call them as Labour Sardars but they are enjoying some special status before the assessee. All the payments were made through them as per Books of Accounts whereas the assessee produced the Muster Roll establishing through it that payments were made to the other co-labourers in their presence for the sake of convenience and the amounts were debited in their names only because the assessee can not keep track of all the labourers without the help of these labourers. Though the assessee claims them to be it's labour and these persons have deposed that they are the labourers, yet, I am not fully convinced with their plea that these persons are simply labourers and nothing more than that. From their appearance, dress, behavior and confidence, I am confident that they are the labour sardars, though they are denying this fact. Whether you admit or not but it can not be denied that these persons enjoy some privileged positions in comparison to other labourers."

From the above it is amply clear that the AO himself is not sure and forming the opinion on his own surmise and conjecture. In our considered view the ld. DR has not brought anything contrary to the findings of ld. CIT(A). In this connection we rely on the decision of ACIT vs. Kalindi Agro Biotech Ltd. (2012) 20 taxmann.com 339 where it was held that the provisions of Sec. 194C of the Act are applicable if the payment has been made to a contractor for the year exceeding Rs.20,000/-. Similarly the jurisdictional ITAT, Kolkata in the case of Samanwaya Vs. ACIT 34 SOT 332 has held as under : 5 ITA Nos. 582 & 622/Kol/14 Dilip Saha

"Business expenditure--Disallowance under s. 40(a)(ia)--Need for TDS under s. 194Crelating to payments made for disbursement of labour charges to labour Sardars--Assessee had specifically stated before the lower authorities that there is no contract between the assessee and the labour Sardars--Revenue authorities could not controvert the submission of the assessee in this respect-- Even before the Tribunal, the Department could not bring out any evidence by producing cogent material in respect of any contract between the assessee and the labour Sardars to contradict the submission of the assessee that there was no contract between the assessee and the labour Sardar--A contractor or a sub-contractor is engaged on the basis of a contract which is the most important essence of a contract job and is a primary requirement for the application of s. 194C-- Labour Sardars in the present case has no locus standi as labour contractor as a labour Sardar and a labour contractor are as different as chalk and cheese--There was no contract between the assessee and the labour Sardars for supply of labourers and without which there cannot be any application of s. 194C and as such the invocation of provision of s. 40(a)(ia) is outside the scope and ambit of such enactment"

Relying in the aforesaid decisions we find that there is nothing on record to suggest that the payment to labourers were paid to the contractors. On the contrary, assessee has made payment to labourers directly and in support of its claim, Ld. AR of assessee has produced the muster roll. In this regard, Ld. DR failed to bring any defect / information from the muster roll which suggested that the labour charges paid by assessee are subject to TDS. Since no cogent material has been brought on record, in our considered opinion, AO was not justified in invoking the provision of Sec. 194C r.w.s. 40(a)(ia) of the Act. In the background of the above discussions and precedent we do not find any infirmity in the order of Ld. CIT(A) and accordingly we uphold the same. In the circumstances, this issue of Revenue's appeal is dismissed."

ITA No. 18/Kol/2014 M/s. Kwality Construction, AY 2009-10 7.4. Respectfully following the judicial precedents relied upon hereinabove, we do not find any reason to interfere with the order of the ld CITA and accordingly dismiss the ground of the revenue.

ITA No. 622/Kol/2014 A.Y 2010-11 ( by the assessee)

adjournment petition was filed. It appears that the assessee is not interested in prosecuting his case. In view of the above, following the decisions of the ITAT, Delhi Bench in the case of Multiplan India (P) Limited reported in 38 ITD 320(Del) and Hon’ble Madhya Pradesh High Court in the case of Estate of late Tukojirao Holkar Vs. CWT reported in (223 ITR 480(MP), we dismiss the appeal of the assessee in limine for want of prosecution.

Sd/- Sd/-

P.M Jagtap S.S. Viswanethra Ravi Accountant Member Judicial Member Date: 05 -05-2017

Copies of the order forwarded to :

(1) The department: The ACIT, Cir-2, Aaykar Bhawan, Court Compound, Burdwan-713101. (2) The assessee: Shri Dilip Saha, Mirchoba, Nutan Colony, P.O Sripally, Dist: Burdwan-713103. (3) Commissioner of Income-tax (Appeals)-I, Kolkata (4) Commissioner of Income Tax, Kolkata (5) The Departmental Representative (6) Guard File **PP/SPS By order Assistant Registrar, Income Tax Appellate Tribunal

7 ITA Nos. 582 & 622/Kol/14 Dilip Saha