2010 (11) TMI 605 - AT - Income Tax

Scrutiny - non serving of notice u/s 143(2) after one year - evidence of non receipt - Held that - We are unable to understand what sort of evidence is required to support that the assessee has not received any notice. Once the assessee filed the affidavit that no notice was received through its Director it is for the Revenue to place on record evidence in support that the notice has been served. - provisions of section 292BB introduced by Finance Act 2008 cannot be applied to the assessment year under consideration - order passed under section 143(3) is bad in law. Rejection of books of accounts - disallowance at 10% of the total expenses on account of non-production of books and vouchers for verification. - CIT(A) re-examined the issue in the light of the earlier orders in assessee s own case for A.Y. 201-02 and A.Y. 2002-03 in which the identical disallowance was restricted to 5%. - Held that - the order of the CIT(A) is confirmed. Reasonable expenditure - disallowance u/s 40A(2)(b) - Hiring charges - assessee has hired outside tankers for transportation of LPG Bitumen etc. - assessee has made different hire charges to different parties ranging from Rs.90, 000/- to Rs.1, 80, 000/- The A.O. invoked the provisions of section 40A(2)(b) of the I.T. Act and estimated 50% of the total payment of hire charges as reasonable and made disallowance of 50% amounting to Rs.3, 90, 000/- Held that - assessee tried to distinguish the payments by filing various computation statements of individual persons by way of additional evidences to justify that these people have offered income and paid taxes. What we notice from the documents placed on record is that most of them were having marginal incomes and tax payable was very marginal at reduced rates whereas the firm could have paid tax at a higher rate had the amounts been paid reasonably. - Decided against the assessee.

Issues Involved:
1. Validity of assessment due to non-service of notice under section 143(2).
2. Rejection of books of account.
3. Disallowance of vehicle maintenance expenses.
4. Disallowance of vehicle hire charges.
5. Disallowance under section 40A(3).

Issue-wise Detailed Analysis:

1. Validity of Assessment:
The primary issue raised by the assessee was the validity of the assessment due to the alleged non-service of a notice under section 143(2) within the statutory period. The assessee argued that the mandatory requirement of issuing the notice within twelve months was not fulfilled, and supported this contention with an affidavit from the Director. The CIT(A) rejected this ground, stating that the assessee did not object to the proceedings at the time and participated in the assessment process. However, the Tribunal found merit in the assessee's contention, noting that the Revenue failed to provide evidence of the notice being served. The Tribunal held that the burden was on the Revenue to prove the service of the notice, and since no such evidence was provided, the assessment was deemed invalid. Therefore, the order under section 143(3) was quashed.

2. Rejection of Books of Account:
The Assessing Officer (A.O.) rejected the books of account on the grounds that they did not reflect the true and correct financial position of the assessee. The CIT(A) upheld this rejection despite detailed submissions from the assessee. The Tribunal noted that this issue had been held against the assessee in earlier years, as the CIT(A)'s orders in those years were upheld by the ITAT. Consequently, the Tribunal rejected the ground regarding the rejection of books of account.

3. Disallowance of Vehicle Maintenance Expenses:
The A.O. made a disallowance of vehicle maintenance expenses, which was initially set at 10% of the total expenses. The CIT(A) reduced this disallowance to 5%. The assessee contested the retention of the disallowance amounting to Rs. 14,18,583, while the Revenue contested the reduction from 10% to 5%. The Tribunal found that the CIT(A)'s decision to restrict the disallowance to 5% was consistent with earlier orders in the assessee's own case and upheld this decision.

4. Disallowance of Vehicle Hire Charges:
The A.O. disallowed vehicle hire charges of Rs. 4,32,000, which the CIT(A) confirmed. The Tribunal noted that this issue had been held against the assessee in earlier years and found no reason to deviate from the previous findings. The Tribunal also rejected the additional evidence provided by the assessee to justify the payments, noting that the tax impact on the firm's income would have been higher had the payments been reasonable. Thus, the disallowance was upheld.

5. Disallowance under Section 40A(3):
The A.O. disallowed Rs. 21,005 under section 40A(3), which the CIT(A) confirmed. The Tribunal noted that this issue had been consistently held against the assessee in earlier years. The Tribunal found no merit in the assessee's argument that the payments were made to an agent for statutory purposes and upheld the disallowance.

Conclusion:
The Tribunal allowed the assessee's appeal regarding the validity of the assessment due to non-service of notice under section 143(2) and quashed the assessment order. Consequently, the other issues on merit did not require adjudication. The Tribunal dismissed the Revenue's appeal and upheld the disallowances made by the CIT(A) in the assessee's appeal for A.Y. 2003-04. The final order pronounced in the open court on 19.11.2010 concluded that the appeal in ITA No. 666/Mum/2006 was allowed, while the appeals in ITA No. 842/Mum/2006 and ITA No. 1555/Mum/2007 were dismissed.

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