All India Logistics Pvt Ltd.,, ... vs Assessee

All India Logistics Pvt. Ltd., vs. The Income-tax Officer, Ward Hyderabad - 1(1), Hyderabad

PAN - ALZPG0232L (Appellant) (Respondent)

Assessee by : Shri Mohd. Afzal Revenue by : Shri Rajat Mitra

Date of hearing 05-05-2015 Date of pronouncement 13-05-2015

O RDE R

PER SAKTIJIT DEY, J.M.:

This appeal filed by assessee is directed against the order dated 13/09/2013 of ld. CIT(A)-V, Hyderabad for AY 2008-09.

2. Though assessee has raised six grounds, the only issue arising for consideration is confined to disallowance of an amount of Rs. 87,89,666 out of the freight expenditure claimed of Rs. 1,06,45,936.

3. Briefly the facts are, assessee is a company engaged in the business of transportation of goods. For the AY under consideration, assessee filed its return of income on 30/09/2008 declaring total income of Rs. 12,610. As mentioned by AO in assessment order, though several notices u/s 142(1) and 142(3) were issued to assessee, but, there was no compliance from its side. Therefore, a 2 ITA No. 1584/Hyd/2013 All India Logistics Pvt. Ltd.

show cause notice was issued to assessee on 12/11/2010 stating that assessment would be completed u/s 144 of the Act to the best of judgment. Since the said notice returned back unserved, summons u/s 131 were issued to the directors of the company fixing the date of appearance on 13/12/2010. On the said date both the directors of the company appeared before AO and the AO also handed over copies of the notices issued u/s 142(1). The directors submitted before AO that books of account are maintained and they will be submitted before AO and requested for fixing another date for that purpose. At their request the date of hearing was fixed on 14/12/2010, but, on the date of hearing no one appeared on behalf of assessee. It is also stated by AO, in spite of reminders issued by AO none appeared on behalf of assessee till 22/12/2010. Assessment being a time bearing one, AO had no other option, but, to complete the assessment ex-parte to the best of his judgment by invoking the provisions of section 144 of the Act.

3. From the material on record, AO noticed that out of total turnover of Rs. 1.17 crore, assessee has shown huge expenditure on account of freight amounting to Rs. 1,06,45,936. In absence of any details with regard to the freight expenditure and also for the reason that tax has not been deducted at source on such payments, AO disallowed the entire freight expenditure claimed at RS. 1,06,45,936 and added back to the income returned. As a result, total income was determined at Rs. 1,06,58,548. Being aggrieved of the addition made, assessee preferred appeal before ld. CIT(A).

4. In course of hearing before ld. CIT(A), assessee while challenging the disallowance of freight expenditure submitted cash book and ledger in support of the expenditure claimed. On the basis of the submissions made and evidences filed, ld. CIT(A) called for a remand report from AO. AO in her remand report stated that in course of remand, assessee's AR furnished freight invoices, LRs, challans 3 ITA No. 1584/Hyd/2013 All India Logistics Pvt. Ltd.

and hire slips for an amount of Rs. 38,90,325. She further observed that assessee produced hire slips for an amount of Rs. 13,95,820 without corresponding LRs. As far as the balance freight expenditure is concerned, assessee could not produce any details or evidences with regard to the same. AO observed that freight expenditure included amounts paid/credited exceeding Rs. 20,000 which attract the provisions of section 194C. However, she stated that assessee's explanation that there is no element of contract for such payments is acceptable. AO also observed that assessee has made cash payments above the prescribed limit which attracts the provisions of section 40A(3). In addition to the remand report submitted by AO, Addl. CIT of the range submitted a separate report commenting that out of the total freight expenditure claimed of Rs. 1,06,45,936, assessee could produce evidence to the extent of Rs. 52,86,145 only. However, he observed that out of the said amount, Rs. 34,29,875 constitutes the payment of above Rs. 20,000 made in single transaction, which attracts provisions of section 194C and consequentially disallowance u/s 40(a)(ia) of the Act. He also noted that out of the said amount of Rs. 34,29,875, cash payments above Rs. 20,000 amounting to Rs. 14,92,500 also attract the provisions of section 40A(3) of the Act. Thus, addl. CIT observed that the expenditure to the extent of Rs. 18,56,270 could be allowed to assessee. On the basis of the remand report of Addl. CIT, ld. CIT(A) allowed expenditure of Rs. 18,56,270 while disallowing the balance amount of Rs. 87,89,666. The finding of the ld. CIT(A) are extracted hereunder for the sake of convenience:

"5. I have carefully considered the submissions of the appellant, remand reports of the AO and the comments of the Addl. CIT vide his letter dated 03/04/2012. I find force in the comments of the Addl. CIT. The AO in her remand report dated 31/03/2012 submitted that the appellant furnished evidence in the form of lorry receipts and hire challans to the extent of Rs. 38,19,325 and partial evidence to a further extent of Rs. 13,95,820, totaling to Rs. 52,86,145. The Addl. CIT in his 4 ITA No. 1584/Hyd/2013 All India Logistics Pvt. Ltd.

comments stated that out of the total amount of Rs. 52,86,145, for an amount of Rs. 34,29,875, payments above Rs. 20,000 were made in a single transaction and though the AO stated that the appellant's explanation was acceptable, the Addl. CIT stated that even for a single hire transaction of a truck, TDS had to be deducted u/s 194 and issues like rate, period or quantity are immaterial in a single transaction truck hiring of payment above Rs. 20,000. The Addl. CIT further stated that for an amount of Rs. 14,92,500, payments were made above Rs. 20,000 in cash in violation of section 40A(3), which is included in the amount of Rs. 34,29,875 and stated that the appellant was entitled for freight expenditure of only Rs. 18,56,270.

5.1 I totally agree with the findings of the Addl. CIT on the AO's remand report dated 31/03/2012 and hold that out of freight expenditure of Rs. 52,86,145 stated by the AO to be acceptable out of the total freight expenditure of Rs. 1,06,45,936, the appellant is only entitled for freight expenditure of Rs. 18,56,270 and Rs. 34,29,875 is sustained for failure to deduct TDS u/s 194C and for violation of section 40A(3) of the Act. Finally, out of total freight expenditure of Rs. 1,05,45,936, the appellant is entitled for freight expenditure of only Rs. 18,56,270 and the balance amount of Rs. 87,89,666 is confirmed."

5. Ld. AR submitted before us, before AO assessee did not produce any books of account, but, only before ld. CIT(A) cash book and ledger were produced. Ld. AR submitted, when the books of accounts are not properly maintained by assessee and the expenditure claimed therein are not supported by bills and vouchers instead of disallowing the expenditure claimed on account of freight in its entirety, the better course should be to reject the books of account and estimate the income by adopting the rate of profit in similar line of business. Ld. AR submitted, once the expenditure claimed is found to be not allowable in absence of supporting evidence, it is presumed that the books of account are rejected, hence, no separate disallowance u/s 40(a)(ia) and 40A(3) could be made apart from estimating the income of assessee. In this context, he relied upon a decision of ITAT, Hyderabad Bench in case of M/s Hycons Infrastructure (India) Ltd. vs. DCIT, ITA No. 1787/Hyd/2011, dated 23/10/2011. As far as the disallowance u/s 40(a)(ia) is concerned, ld.

5 ITA No. 1584/Hyd/2013 All India Logistics Pvt. Ltd.

AR submitted, since the entire expenditure was paid during the relevant PY and nothing remained payable, no disallowance could be made u/s 40(a)(ia) of the Act. In this regard, he relied upon the special bench decision of ITAT, Vizag in case of M/s Merlyn Shipping Transport & Others, 136 ITD 23(SB)(Vizag). Ld. AR submitted, out of turnover of Rs. 1.17 crore, assessee cannot be expected to earn profit of Rs. 87,89,666, which has happened due to disallowance of the expenditure. He, therefore, submitted, Assessing Officer may be directed to estimate the income of assessee by applying reasonable rate.

6. Ld. DR, on the other hand, submitted, assessee's books of account were never rejected but the expenditure incurred by assessee on account of freight was disallowed due to lack of supporting evidence as well as violation of section 40(a)(ia) and 40A(3) of the Act, hence, assessee's contention that no separate disallowance can be made u/s 40(a)(ia) and 40A(3) once books of account are rejected, is not acceptable.

7. We have considered the submissions of the parties and perused the materials on record as well as the orders of revenue authorities. We have also applied our mind to the decisions relied upon by Learned AR. Undisputedly, before Assessing Officer in course of the assessment proceeding, assessee did not produce its books of account or any evidence in support of the expenditure claimed though it made a promise to do so. Therefore, Assessing Officer having no other option was compelled to complete assessment u/s 144 of the Act to the best of his judgment on the basis of facts and materials available on record. While verifying the material on record, Assessing Officer noticed that assessee has claimed freight expenditure of Rs. 1,06,45,936, which constituted the major expenditure claimed by assessee. Therefore, in absence of any supporting evidence to prove the expenditure claimed and also due to the fact that TDS provisions are applicable on such 6 ITA No. 1584/Hyd/2013 All India Logistics Pvt. Ltd.

expenditure, Assessing Officer disallowed the same while accepting profit declared by assessee. Thus, it is clear from the assessment order, Assessing Officer has not expressed any opinion with regard to the books of account of assessee. However, as can be seen, before ld. CIT(A), assessee produced cash book and ledger which was forwarded to Assessing Officer for verification. Assessing Officer while verifying the same when called upon assessee to produce supporting evidence towards the freight expenditure claimed, assessee could produce supporting evidence to the extent of Rs. 56,86,145. Further, it was found that out of this amount of Rs. 56,86,145, payments of Rs. 34,29,875 have been made in violation of section 40A(3) and 40(a)(ia) of the Act. Accordingly, expenditure to the extent of Rs. 18,56,270 was found allowable to assessee. From the aforesaid facts, it is apparent and obvious that income of assessee has not been estimated by rejecting the books of account, rather a particular item of expenditure claimed by assessee was found to be not allowable due to lack of supporting evidence and also for violation of provisions contained u/s 194C read with section 40A(3) and 40(a)(ia) of the Act. In these circumstances, assessee's contention that once books of account are rejected, net income has to be estimated and no disallowance u/s 40(a)(ia) and 40A(3) is to be made, is not acceptable. For this very reason, decision of ITAT in case of M/s Hycons Infrastructure (India) Ltd. (supra) is not applicable to the facts of the present case.

8. Now coming to the quantum of disallowance, it is very much evident that assessee in course of proceeding before the departmental authorities could produce evidence for an amount of Rs. 52,86,145 and as far as the balance amount is concerned, admittedly assessee could not furnish any evidence. It was explained by assessee due to discontinuance of business and dispute between the directors, bills and vouchers for the balance amount could not be produced. The department, however, 7 ITA No. 1584/Hyd/2013 All India Logistics Pvt. Ltd.

straightaway disallowed freight expenditure for which no supporting bills and vouchers were produced. In our view, when assessee has disclosed income of Rs. 1.17 crores it must have also incurred expenditure for earning such income. Moreover, considering the fact that assessee was in transport business and the entire business activity could not have been carried out through his own vehicles but he must have engaged vehicles of third parties payment of freight charges is believable. However, since the expenditure is not supported by bills and vouchers and since possibility of inflating the expenditure cannot be totally ruled out, it will be reasonable to allow 80% of the freight expenditure in respect of which assessee could not produce any evidence, subject to condition that such expenditure is not hit by section 40(a)(ia) and 40A(3) of the Act. As far as balance freight expenditure of Rs. 52,86,145 is concerned, though, it is supported by bills and vouchers but ld. CIT(A) on the basis of remand report of Addl. CIT disallowed an amount of Rs. 34,29,875 u/s 40(a)(ia), which also includes the amount of Rs. 14.92,500 representing cash payments exceeding Rs. 20,000 made in violation of section 40A(3). It is the contention of ld. AR before us since the entire payment was made during the relevant PY and nothing remained payable, no disallowance can be made u/s 40(a)(ia). It appears, this argument has not been advanced by assessee before the Departmental authorities. However, keeping in view the principle laid down by the ITAT Special Bench in case of Merlyn Shipping Transport and others (supra), we direct Assessing Officer to verify this aspect and if it is found that the entire payment was made during the relevant PY and nothing remained payable at the end of PY, no disallowance u/s 40(a)(ia) can be made. As far as violation of section 40A(3) is concerned, we remit this issue back to the file of Assessing Officer for affording an opportunity to assessee to explain as to whether the payments come within the exception provided under Rule 6DD. Assessing Officer shall decide the issue 8 ITA No. 1584/Hyd/2013 All India Logistics Pvt. Ltd.

after giving reasonable opportunity of being heard to assessee and in accordance with law.

9. In the result, assessee's appeal is partly allowed for statistical purposes.

Pronounced in the open court on 13 th May, 2015.

Sd/- Sd/- (P.M. JAGTAP) (SAKTIJIT DEY) ACCOUNTANT MEMBER JUDICIAL MEMBER

Hyderabad, Dated: 13 th May, 2015 kv

Copy to:-

1) All India Logistics Pvt. Ltd., C/o Mohd. Afzal, Advocate, 11-5-465, Sherson's Residency, Flat No. 402, Criminal Court Road, Red Hills, Hyderabad - 500 004

2) ITO, Ward - 3(1), Hyderabad.

3 CIT(A)-V, Hyderabad

4)CIT-VI, Hyderabad

5) The Departmental Representative, I.T.A.T., Hyderabad.