2017 (8) TMI 946 - AT - Income Tax

Addition invoking the provisions of section 145(3) r.w.s. 144 - Held that - It is not known from the order of the ld AO that before holding that the ld CIT(A) not justifying in making assessment u/s 144 of the Act requisite details of the assessment was called for or verified or not. When the summons were issued to the partnership u/s 133 of the Act and they did not appear before the ld AO as per para NO. 4 of the order of the ld CIT(A), how the ld CIT(A) has reached to a particular decision without examining the partners of the assessee and deleting the additions. In view of the above facts and on reading of the order of the ld CIT(A) it is apparent that he has merely believe the version of the assessee without even confronting the AO or calling for remand report. It is also the claim of the assessee that not proper opportunity was given to the AO therefore, in the interest of justice we set aside the issue back to the file of the AO to make the assessment de novo after carrying out proper examination.

Issues Involved:
1. Deletion of addition on account of unaccounted sales.
2. Deletion of addition on account of capital introduced out of undisclosed sources.
3. Deletion of addition on account of trading expenses.
4. Deletion of addition on account of interest/bank charges.

Issue-wise Detailed Analysis:

1. Deletion of Addition on Account of Unaccounted Sales:
The Revenue challenged the deletion of ?72,76,684 made by the AO for unaccounted sales. The assessee, a partnership firm engaged in the export of fabrics and garments, failed to produce books of account and relevant details during the assessment, leading the AO to invoke section 145(3) and make an addition under section 144. The CIT(A) found that the AO had rejected the books of accounts based on unrecorded sale bills and manipulated expenses but still relied on the same books for disallowances. The CIT(A) noted that the assessee followed a consistent mercantile system of accounting and had complied with statutory notices. The CIT(A) held that the AO erred in invoking section 144 and making a best judgment assessment without proper basis, and deleted the addition, noting that the sales bills and vouchers were duly presented, and payments were received through cheques.

2. Deletion of Addition on Account of Capital Introduced Out of Undisclosed Sources:
The AO added ?17,00,000 to the assessee's income, questioning the source of capital introduced by a partner. The CIT(A) noted that the partner withdrew cash from his HSBC Bank account and re-deposited it as capital in the firm. The AO did not dispute the source or creditworthiness of the partner but questioned the propriety of injecting more capital. The CIT(A) emphasized that the tax authorities should not interfere with the business decisions regarding capital requirements as long as the source is legal and the transaction is genuine, and thus directed the deletion of the addition.

3. Deletion of Addition on Account of Trading Expenses:
The AO disallowed 10% of the trading expenses amounting to ?7,68,354 without questioning the veracity of the expenses or providing reasons for the disallowance. The CIT(A) observed that the assessee had submitted detailed expenses, including designing, sampling, and other operational costs, which were not disputed by the AO. The CIT(A) found the expenditure comparable to previous years and directed the deletion of the adhoc disallowance.

4. Deletion of Addition on Account of Interest/Bank Charges:
The AO disallowed ?12,04,850 out of the total bank interest claimed, considering certain advances as non-business related. The CIT(A) agreed that advances for booking flats were not related to business but noted that the increase in such investments was minimal and the overdraft was primarily for export packing credit. The CIT(A) found that the partner's capital injection covered the non-business advances, and other advances were business-related. Therefore, the CIT(A) directed the deletion of the disallowance.

Conclusion:
The Revenue appealed against the CIT(A)'s order, arguing that the CIT(A) relied on the assessee's version without verifying facts or calling for a remand report. The Tribunal noted that the AO provided ample opportunities, but the assessee's compliance was minimal. The Tribunal found that the CIT(A) deleted the additions without proper examination or giving the AO an opportunity to respond. Consequently, the Tribunal set aside the CIT(A)'s order and remanded the case back to the AO for a de novo assessment after proper examination.

Order:
The appeal filed by the Revenue was allowed for statistical purposes, and the case was remanded back to the AO for a fresh assessment.

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