2012 (8) TMI 127 - AT - Income Tax

Denial of claim of deduction of partnership remuneration and interest - the status of appellant has to be taken as AOP - Held that - it has to be necessarily held that no genuine partnership firm was in existence during the previous year 2007-08 as evidenced by a partnership deed executed since the beginning of the financial year. So also, the remuneration claimed for both the partners are again not in conformity with the statutory provision as being not authorized by the partnership deed executed and applicable from the beginning of the financial year. Thus, the AO s action in taking the status of the appellant as AOP and disallowing the deduction of remuneration and interest aggregating Rs.2,56,628/- is found to be fully justified both on facts and in law and accordingly confirmed - against assessee. Addition of income on loan of Rs. 20 lacs received from Mohd. Zakir Hussain, partner of the assessee firm CIT(A) deleted the same after observing that the amount was received from the partner whose identity was established and the amount was received from banking channel - Verifying the passbook of savings bank account of Shri Mohd. Zakir Hussain credit balance in the savings bank account amounting to Rs.34,28,415/- out of which Shri Mohd. Zakir Hussain issued the cheque of Rs. 20 lacs in favour of the firm, clearly proves the credit worthiness - CIT(A) was correct in deleting the addition made on account of loan received from the partner - in favour of assessee. Not being able to prove genuineness of transaction and credit worthiness in respect of the loan of Rs. 5 lacs each received from Jivanlal, Premlal, Ramkumar and Laxminarayan,no reason to interfere with the findings in confirming the credit received from these persons, accordingly - against assessee. Disallowance of claim of expenditure on account of details of Tools, Auzar and Tagari - Held that - This expenditure is essentially required to be allowed as revenue expenditure as they are the consumables used in the business of construction life of which is less than one year - in favour of assessee. Confirm the action of the CIT A) in assessing the income of Rs.60,85,200/- in place of total income assessed by the Assessing Officer at Rs.1,57,94,180/-.

Summary

Issues Involved:
1. Status of the appellant as an Association of Persons (AOP) and disallowance of remuneration and interest to partners.
2. Additions made by the Assessing Officer (AO) under various heads.
3. Disallowance of expenditure on tools, Auzar, and Tagari.
4. Unexplained source of capital.
5. Unexplained deposits in the bank account.

Issue-Wise Detailed Analysis:

1. Status of the Appellant as an Association of Persons (AOP) and Disallowance of Remuneration and Interest to Partners:
The AO treated the appellant's status as an AOP instead of a partnership firm, disallowing remuneration and interest to partners amounting to Rs. 2,56,628/-. The appellant contended that their partnership was evidenced by an instrument specifying individual shares and that proper compliances were made. However, the AO noted that no genuine partnership firm existed for the entire previous year 2007-08, as the partnership deed was executed only on 12.01.2008. The CIT(A) confirmed the AO's action, stating that no proper records of business were maintained and the remuneration claimed was not authorized by the partnership deed. The Tribunal upheld this view, confirming the status of the appellant as an AOP and the disallowance of remuneration and interest.

2. Additions Made by the Assessing Officer (AO) Under Various Heads:
The AO made additions aggregating Rs. 1,53,50,552/- under different heads, including unexplained deposits in the bank account (Rs. 40,20,000/-), revenue expenditure treated as capital expenditure (Rs. 5,96,653/-), unexplained expenditure u/s 69C (Rs. 29,28,490/-), work in progress (Rs. 34,255/-), and difference in sundry debtors from Indore Municipal Corporation (Rs. 77,71,154/-). The CIT(A) found some of these additions to be duplicate and made adjustments, confirming a total addition of Rs. 60,85,200/-. The Tribunal agreed with the CIT(A)'s findings, noting that the original balance sheet was unreliable and manipulated.

3. Disallowance of Expenditure on Tools, Auzar, and Tagari:
The AO treated the expenditure on tools, Auzar, and Tagari as capital expenditure. The CIT(A) disagreed, stating that these were consumables used in the construction business with a life of less than one year, thus qualifying as revenue expenditure. The Tribunal upheld the CIT(A)'s decision, allowing the expenditure as revenue in nature.

4. Unexplained Source of Capital:
The CIT(A) upheld an addition of Rs. 60,85,200/- on account of unexplained source of capital after detailed examination. The Tribunal confirmed this addition, noting that the appellant failed to provide any positive material to counter the findings of the CIT(A).

5. Unexplained Deposits in the Bank Account:
Out of the total addition of Rs. 40,20,000/- for unexplained deposits, the CIT(A) deleted Rs. 20 lacs received from the partner, Mohd. Zakir Hussain, whose identity and creditworthiness were established. The Tribunal verified the partner's bank passbook and confirmed the deletion. However, the remaining Rs. 20,20,000/- was upheld as unexplained deposits, as the appellant could not establish the genuineness and creditworthiness of the loans received from four agriculturists.

Conclusion:
The Tribunal confirmed the CIT(A)'s decision to assess the total income at Rs. 60,85,200/- instead of Rs. 1,57,94,180/- as determined by the AO. Both the appeals of the assessee and the Revenue were dismissed. The Tribunal upheld the status of the appellant as an AOP, confirmed the disallowance of remuneration and interest to partners, allowed the expenditure on tools, Auzar, and Tagari as revenue expenditure, and partially upheld the additions for unexplained deposits and source of capital.