2023 (1) TMI 757 - AT - Income Tax

Addition based upon the statement recorded u/s. 133(6) - HELD THAT - It is pertinent to point out that the A.O. has considered the statement made by the partner of the assessee firm which was further corroborated by the diary found at the premises of the assessee during the survey operation, is justifiable to hold that the impugned addition was not merely based upon the statement recorded u/s. 133(6) of the Act but was also corroborated with material evidences. On this note, we find no merit in allowing ground raised by the assessee. Special provision for computing profits and gains of business on presumptive basis - income declared u/s. 44AD of the Act at a percentage of turnover which is higher than the percentage prescribed u/s. 44AD - HELD THAT - Upon considering as per the said Explanation (2) to section 44AD, the assessee firm will be considered as an eligible business to come under the purview of section 44AD. The intention of the legislature in case of computing profit and gains of business on presumptive basis is to enhance the tax payers to declare income at the minimum rate prescribed u/s.44AD and also allows the assessee to offer income higher than the said prescribed rate, in case of business, whose total turnover or gross receipts in the previous year, does not exceed the amount prescribed under law. The lower authorities have not denied the fact that the assessee is an eligible assessee , carrying out eligible business under the provisions of section 44AD of the Act. On this observation, we hold that the assessee s declaration of income u/s. 44AD of the Act is justified and the A.O. s contention that the assessee has not maintained its books of account in such case, is not warranted. Hence, the assessee s declaration of income u/s. 44AD of the Act at a percentage of turnovers higher than the prescribed percentage u/s.44AD of the Act, is justified. Expenses paid towards Maharashtra Value Added Tax (Sales Tax) - Claim disallowed on the ground that the impugned amount was paid by the customers along with the bill issued to the customers - HELD THAT - Assessee has failed to furnish documentary evidence to substantiate the fact that the impugned amount was not paid by the customers and was paid from the coffers of the assessee, was not supported by documentary evidence neither before the lower authorities nor before us. In order to deduct the said expenses as wholly incurred for the purpose of assessee s business from the income of the assessee, the assessee is given one more opportunity to produce documents in support of its claim before the A.O. For this limited purpose, this issue is remanded back to the file of the A.O. The A.O. is hereby directed to verify the documentary evidences which are to be filed by the assessee to prove the fact that the assessee has paid the VAT amount and has not collected it from the customers through bills, invoices, etc. and to decide this issue on merits.

Summary

Issues:
1. Addition of Rs.6,75,502/- confirmed by CIT(A) without appreciating higher income declaration under section 44AD.
2. Impugned addition made based on statement recorded u/s 133A without corroborative evidence.
3. Disallowance of Rs.6,75,502/- VAT payment as allowable expense.

Analysis:

Issue 1:
The assessee challenged the addition of Rs.6,75,502/- made by the Assessing Officer (AO) under section 44AD of the Income Tax Act. The AO determined total income at Rs.26,27,872/- by adding the impugned amount. The assessee contended that the income declared @ 14.99% of turnover was higher than the specified 8% under section 44AD. The CIT(A) upheld the AO's decision, stating the AO can assess income beyond section 44AD with sufficient evidence. However, the Tribunal found the assessee's higher profit declaration justified as an eligible business under section 44AD, dismissing this ground.

Issue 2:
The second ground challenged the addition based solely on a statement recorded u/s 133A without corroborative evidence. The Tribunal observed that the AO's decision was supported by a diary found during survey operations, which contained sales and expense details. Relying on precedents, the Tribunal dismissed this ground, emphasizing the evidentiary value of the statement and corroborative evidence.

Issue 3:
Regarding disallowance of Rs.6,75,502/- VAT payment as an expense, the Tribunal noted the absence of documentary evidence supporting the claim that the amount was paid by the assessee, not customers. The Tribunal remanded this issue to the AO for verification of documentary evidence to determine if the VAT amount was indeed paid by the assessee. The assessee was given an opportunity to provide supporting documents.

In conclusion, the Tribunal partly allowed the appeal, upholding the higher income declaration under section 44AD but remanding the VAT payment issue for further verification.