2016 (8) TMI 268 - HC - Income Tax

Assessment u/s 153A - Regard of statement recorded under section 132 (4) of the partner of the firm - Held that - we find from the order passed by the Tribunal that the statement recorded under section 132(4) was attested by two witnesses. The statement was also not retracted in any manner. The assessing officer first appellate authority and the Tribunal were satisfied that Sri.Jabir was actively involved and was fully conversant with the business activities of the firm. In fact, the statement of a salesman of another firm, of which his father himself is the Managing Partner, was to the effect that it was Sri.Jabir who was running the business and even deciding the price of the wooden furnitures that were sold. All these factual findings contained in the order of the Tribunal would therefore indicate that Sri.Jabir was a person who was actively involved in the business and was competent to depose about the business activities of the firm. It may be true that the Managing Partner was not confronted with the contents of the statement made by Sri.Jabir. But having regard to the law laid down in Narayan Bhagwat Rao Gosavibalajiwale v. Gopal Vinayak Gosavi & Others 1959 (9) TMI 53 - SUPREME COURT relied on by the Tribunal, which lays down that the statement recorded under section 132(4) of the Income Tax Act is the best evidence, absence of confrontation does not necessarily require eschewing or discarding such a statement. Therefore, we do not find any substance in the first question framed by the assessee. Allowance of claim of expenditure by way of interest to the partners on their capital and salary to the working partners - Held that - It is the conceded case of the assessee that they have not raised any such claim either before the assessing officer or before the first appellate authority. The order of the Tribunal also give an impression that such a claim was raised only when the matter was argued. Secondly, this claim could not have been considered by the Tribunal in the absence of any supporting document, including the partnership deed. The fact that issues relating to sale of branded items and bulk sales are remanded for fresh adjudication by the assessing officer does not mean that the Tribunal should have, as contended by the counsel for the assessee, remitted this claim of the assessee also to the assessing officer. On facts, we are not satisfied that the Tribunal has committed any illegality.

Summary

Issues:
- Disregarding statement recorded under section 132(4) of the partner of the firm
- Allowing the claim of expenditure by way of interest to the partners on their capital and salary to the working partners

Analysis:

Issue 1: Disregarding statement recorded under section 132(4) of the partner of the firm
The appeals were filed by the assessee against the order passed by the Income Tax Appellate Tribunal concerning the assessment years 2007-08 and 2008-09. The Tribunal directed the assessing officer to adjudicate the issue relating to bulk sales with an opportunity of hearing to the assessee. The first question raised was whether the Tribunal should have disregarded the statement recorded under section 132(4) of the partner of the firm. The assessee argued that the person whose statement was recorded was a 22-year-old student not involved in the business. However, the Tribunal found that the statement was attested by two witnesses and not retracted. It was established that the person was actively involved in the business, competent to depose about the business activities of the firm, and the statement was considered valid evidence as per legal precedents. Thus, the Court found no substance in the first question raised by the assessee.

Issue 2: Allowing the claim of expenditure by way of interest to the partners on their capital and salary to the working partners
The second question raised was whether the Tribunal should have allowed the claim of expenditure by way of interest to the partners on their capital and salary to the working partners. The Tribunal noted that the claim was not raised before the assessing officer or the first appellate authority. Additionally, the claim lacked supporting documents, including the partnership deed. The Court emphasized that the Tribunal could not consider the claim without proper documentation. Even though other issues were remanded for fresh adjudication, the claim of expenditure by the assessee was not remitted to the assessing officer. Therefore, the Court found no illegality in the Tribunal's orders and confirmed the decision in favor of the Revenue.

In conclusion, the Court dismissed the appeals, finding no merit in the contentions raised by the assessee. The Tribunal's decision was upheld, and the questions of law were answered in favor of the Revenue.