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TMI Blog2010 (5) TMI 834X X X X Extracts X X X X X X X X Extracts X X X X ..... d CIT(A) erred in conf irming the addition made by the learned AO out of Diwal i Expenses ₹ 21,083/- & out of conveyance ₹ 37,463/-." 2. Briefly the facts in respect of ground No.1 are that during the course of assessment proceedings that the AO noticed that the assessee received ₹ 48,44,500/- gross less TDS ₹ 2,99,548/- net ₹ 45,44,952/- from Pritam Industries. Out of the said amount, the assessee claimed that the amount of ₹ 37,00,000/- was paid as under:- 1. Grand Foundry Ltd. 22,00,000/- 2. Suleman Bharucha 750,000/- 3. Yasmin Bharucha 750,000/- 3. Before the AO it was claimed by the assessee that the amount received was on account of joint venture with three parties to whom the assessee made pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the contention of the assessee can be accepted. The AO further observed that the assessee's total amount from Britannia Industries and subsequently claims to have paid it to the parties but the assessee has claimed TDS for the whole amount without offering the whole amount received fro taxation. Hence, the difference of ₹ 37,00,000/- was added back to the total income of the assessee. The AO further observed that the amount paid to the Bharuchas and Grand Foundry Ltd. has not been booked as an expenditure by the assessee and even if the AO give him credit for the said expenditure on account of payment to Bharuchas and Grand foundry without deducting TDS, hence, the expenditure cannot be allowed to the assessee u/s 40(ia) of the Act. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oticed that the assessee has failed to bring on record the evidence to show that services rendered by Grand Foundry & M/s Bratannia Industries so as to entitle them of the fees. The CIT(A) noted that out of the said gross amount, the assessee has offered only ₹ 11,44,500/-, therefore, the AO has rightly made the addition of ₹ 37,00,000/-. The CIT(A) while confirming the order of AO in respect of provisions of section 40(ia) observed that even if any credit is allowed for expenditure, if held to be genuine, though not claimed by the assessee then also it will be hit by the provisions of section 40(ia), which is applicable from assessment year. 5. The learned AR submitted that the transaction is so called as joint venture but in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is the nature of the receipt RS 48,44,500/- received to the assessee from Britannia Industries. Whether it is on account of work done by assessee or on account of joint venture or on account of works contract and sub contract works or simply received the amount on behalf of the other parties. To examine the nature of receipts of ₹ 44,94,687/- & payment of ₹ 37 lakh, what was the exact agreement with Britannia Industries whether oral or written whatever may be and confirmation from Britannia Industries confirming that the amount was paid to the assessee which were in fact related to other parties also, the relevant material & facts are required to be put on record. We noticed that there is no such material on record nor it was fu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt has been paid to the Bharuchas and Grand Foundry Ltd. without deducting TDS. Hence, the expenditure cannot be allowed to the assessee u/s 40(ia) of the Income Tax Act, 1961." 6.1 The law of evidence mandates that if the best evidence is not produced before the Court, an adverse inference can be taken. Under the circumstance the decision cited by the learned AR does not help to the assessee. In the case under consideration, the assessee failed to produce material or evidence to establish the nature of receipts of ₹ 44,94,689/- from Britannia Industries as discussed above We, therefore, inclined to uphold the orders of the revenue authorities on this issue. Accordingly the order of the CIT(A) is confirmed. 7. The second ground of a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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