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2015 (12) TMI 1459 - AT - Income TaxAddition as undisclosed income in respect of commission expenses treated as non-genuine - Held that - Assessing Officer has made addition purely on the basis of statement made during the course of survey under section 133A, which was later on retracted by the assessee, therefore, we are of the considered view that any addition made on the basis of these statements is without any basis and deserves to be deleted as there is no corroborative materials on record. It seems that addition has been made merely on the basis of statement/presumptive basis and no corroborative material has been brought on record. Presumption cannot take the shape of evidence, however, strong it may be. It is also noted that the statement on oath, claimed to be recorded from Shri Kiran Wasudeo Somalwar neither bears the signature of the deponent nor of any officer, thus, in our view, its evidentiary value is also under cloud - Decided in favour of assessee. Disallowance of transportation expenses under section 40(a)(ia) - appellant has not deducted tax at source from such payments - Held that - The transportation expenses on which no TDS has been stated to be deductible and also the transportation charges stands paid before March 31, 2006. However, the issue is being restored back to the file of the Assessing Officer to verify the claim of the assessee whether the amount was paid or payable at the end of the year and if the amount is found to be paid then it has to be allowed in the light of the aforesaid decision from hon ble Allahabad High Court in the case of CIT v. Vector Shipping Services P. Ltd. 2013 (7) TMI 622 - ALLAHABAD HIGH COURT . - Decided in favour of assessee for statistical purposes.
Issues Involved:
1. Addition as undisclosed income in respect of commission expenses treated as non-genuine. 2. Ad hoc disallowance out of repairs and maintenance expenses. 3. Ad hoc disallowance out of traveling expenses. 4. Disallowance of transportation expenses under section 40(a)(ia). 5. Ad hoc disallowance out of transportation and octroi expenses. 6. Deduction under section 80G. Detailed Analysis: 1. Addition as Undisclosed Income in Respect of Commission Expenses Treated as Non-Genuine: - The primary issue was the disallowance of Rs. 2,04,84,477 as non-genuine commission expenses. - The assessee engaged companies, including M/s. Litaka Pharmaceuticals Ltd., for liasioning services to obtain orders from government agencies. - A survey under section 133A was conducted, and statements were recorded from the directors of M/s. Litaka Pharmaceuticals Ltd. and the assessee's partner, admitting the commission payments were bogus. - The assessee retracted the statements, claiming coercion and undue pressure by the survey team. - The Assessing Officer disallowed the commission expenses, relying on the initial statements and dismissing the retraction as an afterthought. - The Commissioner of Income-tax (Appeals) upheld the disallowance, noting the lack of evidence for liasioning services and the inconsistency in commission payments. - The Tribunal considered the retraction and the lack of corroborative evidence to support the disallowance. - Citing various judicial precedents, including the Supreme Court's ruling in CIT v. S. Khader Khan Son, the Tribunal held that statements made during survey proceedings under section 133A have no evidentiary value unless corroborated by other evidence. - The Tribunal noted that the Assessing Officer did not allow cross-examination of the third party, violating the principle of audi alteram partem. - The addition was deleted due to the lack of corroborative material and reliance solely on retracted statements. 2. Ad Hoc Disallowance out of Repairs and Maintenance Expenses: - The Commissioner of Income-tax (Appeals) upheld an ad hoc disallowance of Rs. 20,000 from total repairs and maintenance expenses of Rs. 1,76,344. - The Tribunal dismissed this ground as not pressed by the assessee. 3. Ad Hoc Disallowance out of Traveling Expenses: - The Commissioner of Income-tax (Appeals) upheld an ad hoc disallowance of Rs. 25,000 from total traveling expenses of Rs. 7,97,259. - The Tribunal dismissed this ground as not pressed by the assessee. 4. Disallowance of Transportation Expenses under Section 40(a)(ia): - The Assessing Officer disallowed Rs. 13,88,405 of transportation expenses for non-deduction of TDS. - The Commissioner of Income-tax (Appeals) did not address this issue. - The Tribunal noted the assessee's claim that TDS was not deductible or all expenses were paid before March 31, 2006. - Citing the Allahabad High Court's ruling in CIT v. Vector Shipping Services P. Ltd., the Tribunal remanded the issue to the Assessing Officer to verify whether the amount was paid or payable at the year-end. - If the amount was paid, it should be allowed in light of the Allahabad High Court's decision. 5. Ad Hoc Disallowance out of Transportation and Octroi Expenses: - The Commissioner of Income-tax (Appeals) upheld an ad hoc disallowance of Rs. 1,00,000 from transportation and octroi expenses. - The Tribunal dismissed this ground as not pressed by the assessee. 6. Deduction under Section 80G: - The Commissioner of Income-tax (Appeals) did not direct the Assessing Officer to grant a deduction under section 80G for a donation of Rs. 5,00,000. - The Tribunal dismissed this ground as not pressed by the assessee. Conclusion: - I.T.A. No. 34/Nag/2011 was partly allowed for statistical purposes, with the primary issue of commission expenses resolved in favor of the assessee due to the lack of corroborative evidence. - I.T.A. No. 33/Nag/2011 was allowed, following the same reasoning as I.T.A. No. 34/Nag/2011.
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