2013 (11) TMI 472 - AT - Income Tax

Unexplained expenditure u/s 69C of the Income Tax Act detection of income and unexplained expenditure during survey - Held that - The appellant had made disclosure of income of Rs.42,00,000/- during the course of survey, it means additional income after all deductions - The total disclosure made by the appellant is unaccounted income which has been detected by the department and admitted by the assessee. Therefore, it is a deeming income to the extent of Rs.22,35,685/- u/s.69C of the IT Act, as the assessee has not explained the source of these expenses Decided in favor of Revnue. Rejection of books of accounts u/s 145(3) Held that - Rejection of books of account u/s.145 is justifiable as two diaries in which unaccounted payments to the partner and unaccounted expenses recorded, were found Decided in favor of Revenue. Allowance of remuneration and interest to the working partners u/s.40(b) of the I T Act Held that - Section 40A is not applicable to payments covered by Section 40(b) of the Income Tax Act. - Following the judgments in the case of CIT vs. Yoganand Textiles 1991 (9) TMI 14 - GUJARAT High Court and DCIT Circle-6, Surat vs. Om Terrace 2013 (9) TMI 118 - ITAT AHMEDABAD , claim of deduction in regard to interest and remuneration is allowed Decided against the Revenue.

Issues Involved:

1. Rejection of books of account under section 145(3) of the IT Act.
2. Addition of Rs.22,35,685 based on unaccounted expenses recorded in diaries.
3. Disallowance of remuneration to working partners under section 40(b) of the IT Act.
4. Deletion of penalty levied under section 271(1)(C) for concealment of income.

Issue-wise Detailed Analysis:

1. Rejection of Books of Account under Section 145(3):

The appellant, a partnership firm engaged in construction, had its books of account rejected under section 145(3) following a survey under section 133A. The survey revealed unaccounted matters in two diaries and unaccounted cash. Despite the appellant's argument that no defects were pointed out by the AO, the tribunal upheld the rejection of the books of account due to the unaccounted payments and expenses recorded in the diaries, thus dismissing the appellant's ground.

2. Addition of Rs.22,35,685 Based on Unaccounted Expenses:

During the survey, unaccounted expenses totaling Rs.22,35,685 were found in two diaries. The appellant argued that these expenses should be deductible against the disclosed income of Rs.42,00,000. However, the CIT(A) and the tribunal held that once unaccounted income is detected and disclosed, no part of it can be claimed as a deduction, as it is deemed to be net of all expenses. The tribunal confirmed the addition under section 69C, as the appellant did not explain the source of these expenses.

3. Disallowance of Remuneration to Working Partners under Section 40(b):

The AO disallowed Rs.19,17,916 claimed as interest and remuneration to partners, deeming it excessive and unreasonable compared to the previous year. The CIT(A) upheld this disallowance, noting that the appellant had claimed these expenses to mitigate the tax liability from the disclosed unaccounted income. The tribunal, however, directed the AO to verify the terms of the partnership deed and allow the interest and remuneration as per section 40(b), following the precedent set by the Co-ordinate 'D' Bench in a similar case.

4. Deletion of Penalty under Section 271(1)(C):

The AO imposed a penalty of Rs.14,53,760 for concealment of income based on the disallowed expenses and remuneration. The CIT(A) deleted the penalty, reasoning that the unaccounted expenses were included in the disclosed income and subsequently accounted for in the books. The CIT(A) also noted that disallowance in assessment proceedings does not equate to furnishing inaccurate particulars or concealing income. The tribunal agreed, confirming that the appellant had not concealed any income or furnished inaccurate particulars, and upheld the deletion of the penalty.

Conclusion:

The tribunal partly allowed the appellant's appeal by setting aside the disallowance of remuneration to partners for verification but confirmed the rejection of books of account and the addition of unaccounted expenses. The revenue's appeal against the deletion of penalty was dismissed.

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