2015 (10) TMI 2024 - AT - Income Tax

Deduction of interest and salary paid to partners u/s 40b (IV) and 40 b(V) - order u/s 144 - CIT(A) allowed the claim - Held that - Undisputedly the Assessing Officer has afforded various opportunities to the assessee to produce complete books of account bills and vouchers etc. for verification. But the assessee did not produce the books of account and relevant evidence to justify the claim of expenditure etc. In the absence of complete books of account the Assessing Officer had no option but to proceed under section 144 of the Act for best judgment assessment. The dispute is raised with regard to further deduction of interest and salary paid to partners and firm in terms of section 40b(iv) and 40b(v) of the Act from the net profit estimated by the Assessing Officer. The provisions of section 184(5) of the Act is very clear and according to which no further deduction can be allowed by way of any payment of interest salary bonus commission or remuneration by whatever name called made to any partner of such firm While issuing directions for allowance of interest and salary paid to partners the ld. CIT(A) has not examined the provisions of section 184(5) of the Act. Therefore we are of the view that the findings of the ld. CIT(A) are contrary to the provisions of the Act and we accordingly set aside the order of the ld. CIT(A) in this regard and restore that of the Assessing Officer. - Decided in favour of revenue. Undisclosed income under section 68 - CIT(A) disclosed the addition - Held that - Details of the cash deposit in the bank be re-examined in the light of the cash book duly maintained by the assessee. Therefore it requires a proper verification by the Assessing Officer. During the course of hearing our attention was also invited to the fact that while making addition on account of cash deposit in bank the Assessing Officer has also examined the sundry creditors of 29.05 lakhs but he has not made any addition of 29.05 lakhs as he has made an addition of 42.08 lakhs on account of cash deposit in the bank. Therefore once the matter is restored back for verification of cash deposits sundry creditors of 29.05 lakhs be also verified. Accordingly we set aside the order of the ld. CIT(A) and restore the matter to the Assessing Officer with a direction to re-adjudicate the issue by making necessary verification with regard to the cash deposit of 42.08 lakhs and sundry creditors of 29.05 lakhs. If need be sundry creditors may also be summoned for verification. The assessee is also directed to produce all the relevant books of account to justify the cash deposits in the bank and sundry creditors. Accordingly the order of the ld. CIT(A) is set aside and the matter is restored to the Assessing Officer to re-adjudicate the issue in terms indicated above. - Decided in favour of assessee for statistical purposes.

Summary

Issues Involved:
1. Treatment of the order passed by the Assessing Officer under section 144 as an order under section 143(3) of the Income Tax Act, 1961.
2. Allowance of deduction of interest and salary paid to partners under sections 40b(iv) and 40b(v) of the Income Tax Act, 1961.
3. Deletion of addition made by the Assessing Officer as undisclosed income under section 68 of the Income Tax Act, 1961.

Issue-wise Detailed Analysis:

1. Treatment of the Order under Section 144:
The Revenue contested that the CIT(A) erred in treating the order passed by the Assessing Officer under section 144 as an order under section 143(3). The Tribunal noted that the assessee, a civil contractor, failed to produce complete books of account and relevant evidence despite repeated opportunities. Consequently, the Assessing Officer proceeded under section 144 for best judgment assessment. The Tribunal found that the CIT(A) did not disturb the Assessing Officer's invocation of section 144. As per section 184(5), no deduction of interest, salary, bonus, commission, or remuneration to partners is allowed if a firm is assessed under section 144. Therefore, the Tribunal concluded that the CIT(A)'s findings were contrary to the provisions of the Act and restored the order of the Assessing Officer.

2. Allowance of Deduction of Interest and Salary to Partners:
The Assessing Officer did not allow the deduction of interest and salary to partners as per section 184(5) due to the best judgment assessment under section 144. The CIT(A) directed the Assessing Officer to allow these deductions, which the Revenue opposed. The Tribunal emphasized the clear provisions of section 184(5), which disallow any such deductions if the assessment is under section 144. The Tribunal set aside the CIT(A)'s order and restored the Assessing Officer's decision, reinforcing that no deductions by way of interest, salary, bonus, commission, or remuneration to partners are permissible in such cases.

3. Deletion of Addition as Undisclosed Income under Section 68:
The Assessing Officer added Rs. 42,08,000 as undisclosed income under section 68, noting unexplained cash deposits in the assessee's bank account. The CIT(A) deleted this addition, citing that the cash balances were available for deposit and that no further addition was warranted once the income was enhanced on estimate. The Revenue argued that the assessee failed to satisfactorily explain the source of these deposits and that the CIT(A) did not properly examine the evidence.

The Tribunal referred to the jurisdictional High Court's judgment in CIT vs. G.S. Tiwari & Co., which allows separate additions under section 68 even after rejecting books of account and estimating net profit. The Tribunal noted that the CIT(A) did not sufficiently discuss how the cash deposits were explained. Therefore, the Tribunal set aside the CIT(A)'s order and remanded the matter to the Assessing Officer for re-examination of the cash deposits and sundry creditors. The assessee was directed to produce all relevant books of account for verification.

Conclusion:
The Tribunal allowed the Revenue's appeal for statistical purposes, setting aside the CIT(A)'s order and restoring the matter to the Assessing Officer for re-adjudication of the issues concerning the cash deposits and sundry creditors. The Tribunal emphasized compliance with section 184(5) and the need for proper verification of unexplained cash credits under section 68.