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2014 (3) TMI 103 - AT - Income TaxAddition on contract receipts not recorded in books of accounts Held that - The findings of the CIT(A) upheld that the addition has not been made merely on the basis of statement recorded during the course of survey but on the contrary it has been made on the basis of corroborative evidence found at the time of survey and which was further corroborated with the statements of the partners and other person recorded u/s 131 and 133A of the Act - assessee not brought any material on record to demonstrate that the statement of the partner was obtained by coercion or under pressure - Relying upon CIT vs Sonal Construction 2012 (11) TMI 11 - DELHI HIGH COURT - when documents which are not meant for the eyes of the Revenue are unearthed after undertaking an exercise which involves an intrusion into the privacy of the assessee, it is not permissible to discount the veracity, genuineness and truthfulness of the contents therein for the flimsiest of reasons there is no reason to interfere in the findings of CIT(A). Restriction of addition to 8% of receipts u/s 44AD of the Act Held that - CIT(A) held that the provisions of s. 44AD are applicable when the turnover of the Assessee does not exceed Rs 40 lacs but in the case of Assessee after including the on money to the turnover declared by the Assessee, the turnover exceeds Rs 40 lacs and therefore the provisions of presumptive tax does not apply - Assessee could not controvert the findings of CIT(A) Decided against Assessee. Addition on account of unaccounted receipts Held that - CIT(A) while granting partial relief has noted that the claim of Assessee that the two receipts of Rs. 20,000/- were Kachha receipts which were later adjusted against total payment was not backed by any evidence assessee could not bring any material to controvert the findings of CIT(A) thus, there is no infirmity in the order of the CIT(A) Decided against Assessee. Disallowance u/s 40A(3) of the Act Held that - CIT(A) has given a finding that the payments were not made to any agents so as to cover under the shelter of Rule 6DD(k) and therefore it was rightly disallowed by AO Assessee could not controvert the findings of CIT(A) thus, there is no reason to interfere with the order of CIT(A) Decided against Assessee. Disallowance of interest Held that - CIT(A) while upholding the addition has given a finding that Assessee was paying interest on partner s capital account and therefore it was not interest free and therefore it cannot be said that amount was advanced out of interest free funds assessee could not place any material on record to controvert the findings of CIT(A) - He also could not substantiate his submission that the interest was on account of car loan thus, there is no reason to interfere with the order of CIT(A) Decided against Assessee. Survey u/s 133A of the Act Penalty u/s 271(1)(c) of the Act Held that - Penalty proceedings are different from assessment proceedings and the findings given in the assessment though it may constitute good evidence but same is not conclusive in the penalty proceedings - merely because additions have been confirmed in appeal it cannot be the sole ground for coming to the conclusion that the assessee had concealed any income - In the absence of complete and convincing corroborative evidence, the Revenue may justify addition, but in the matter of penalty proceedings, the onus lies heavily on the Revenue to prove that the assessee had concealed its income or has filed inaccurate particulars of its income thus, no penalty is leviable u/s 271(1)(c) and therefore direct its deletion Decided in favour of Assessee. Deduction of remuneration u/s 40(b) of the Act Held that - The CIT(A) while upholding the order of AO has given a finding that Assessee had not claimed the deduction u/s 40(b) in respect of addition income declared during the survey, before the AO during assessment proceedings, nor assessee had filed any revised return of income - no claim of deduction u/s 40(b) was made even before CIT(A) in appellate proceedings or any application u/s 154 was moved before CIT(A) - the AO has only passed order giving effect to the order of CIT(A) and AO cannot consider the deduction of any amount u/s 40(b) while giving such appeal effect order - assessee has not demonstrated as to how the deduction can be given in rectification proceedings when there was no such claim before AO or CIT(A) thus, there is no infirmity in the order of CIT(A) and no interference is called for Decided against Assessee.
Issues Involved:
1. Addition of unaccounted receipts. 2. Disallowance under Section 40A(3). 3. Disallowance of interest on advances. 4. Penalty under Section 271(1)(c). 5. Rectification under Section 154. Issue-wise Detailed Analysis: 1. Addition of Unaccounted Receipts: The core issue pertains to the addition of Rs. 16,86,813/- as unaccounted receipts based on a diary found during a survey under Section 133A. The diary contained cash entries not reflected in the books of accounts. The partner admitted these entries as unrecorded income during the survey. The Assessee later reconciled the figures and filed a revised return, but the AO rejected the revised figures and added the unaccounted income under Section 69. The CIT(A) upheld the AO's decision, noting that the Assessee failed to provide evidence for expenses outside the books, and the unaccounted receipts were considered net income. The Tribunal supported the CIT(A)'s findings, citing corroborative evidence found during the survey and statements from partners and a purchaser. 2. Disallowance under Section 40A(3): The AO disallowed Rs. 28,613/- under Section 40A(3) for cash payments aggregating to Rs. 1,43,065/- not covered under Rule 6DD. The CIT(A) confirmed the disallowance, stating that the payments were not to any agent, and thus, Rule 6DD(k) was not applicable. The Tribunal upheld the CIT(A)'s decision, noting that the Assessee could not provide evidence to contradict the findings. 3. Disallowance of Interest on Advances: The AO disallowed Rs. 25,800/- of interest on an advance given to a relative of a partner, as the Assessee was paying interest on borrowings and partners' capital. The CIT(A) upheld the disallowance, noting that the partners' capital was not interest-free. The Tribunal agreed with the CIT(A), as the Assessee could not provide evidence to substantiate the claim that the interest was on account of a car loan. 4. Penalty under Section 271(1)(c): A penalty of Rs. 9,75,000/- was levied under Section 271(1)(c) for concealment of income, based on unaccounted cash entries found during the survey. The CIT(A) confirmed the penalty, but the Tribunal deleted it, noting that the Revenue failed to prove that the Assessee had concealed income or filed inaccurate particulars. The Tribunal emphasized that penalty proceedings are distinct from assessment proceedings and require conclusive evidence of concealment. 5. Rectification under Section 154: The Assessee filed an application under Section 154 for further deduction of salary paid to partners due to enhanced income after giving effect to the CIT(A)'s order. The AO and CIT(A) rejected the application, stating that the Assessee did not claim the deduction during the assessment or appellate proceedings. The Tribunal upheld the CIT(A)'s decision, noting that rectification under Section 154 cannot be used to claim deductions not previously raised. Conclusion: The Tribunal dismissed the Assessee's appeals on the issues of unaccounted receipts, disallowance under Section 40A(3), disallowance of interest on advances, and rectification under Section 154. However, it allowed the appeal regarding the penalty under Section 271(1)(c), directing its deletion.
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