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TMI Blog2018 (1) TMI 321X X X X Extracts X X X X X X X X Extracts X X X X ..... e view that this issue needs a fresh look at the level of the Assessing Officer wherein the assessee shall be at liberty to produce the persons to whom the salary was paid as the ld AR claimed that these persons are still working with the assessee company. Accordingly, this issue is restored back to the file of the Assessing Officer. This appeal is partly allowed for statistical purposes. - ITA Nos. 799, 800 And 801/JP/2017 - - - Dated:- 27-12-2017 - SHRI VIJAY PAL RAO, JM AND SHRI BHAGCHAND, AM For The Assessee : Shri P.C. Parwal (CA) For The Revenue : Smt. Pratibha Kaushik (CIT) ORDER PER: BENCH All the three appeals are filed by the assessee emanates from the separate orders of the ld. CIT(A)-4, Jaipur dated 04/09/2017 for the A.Y. 2010-11, 2011-12 and 2012-13. 2. All these appeals were heard together and for the sake of convenience and brevity being disposed off by a common order. 3. ITA No. 799/JP/2017. In this case, a search and seizure operation U/s 132(1) of the Income Tax Act, 1961 (in short the Act) was carried out on 08/6/2011 at the different premises of Dr. Anish Maru Group. The assessee is one of the concern of this group. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ad not receipt certain amounts, which are mentioned in Form 26AS. He pleaded that the other concerns are also assessed by the same A.O. 9. On the other hand, the ld CIT DR has relied on the orders of the authorities below and pleaded that the onus is on the assessee. The receipt of commission is from the group concern only and the assessee s Director is common with the Director of payer of commission. Therefore, he pleaded to sustain the addition. 10. After hearing both the sides, the Bench are of the view that the assessee has not submitted any evidence, which could reconcile the difference between the commission received as per Form 26AS at ₹ 7,67,404/- as against commission declared by the assessee in its P L account of ₹ 5,63,670/-. The payer of commission is a group concern and director is common. The onus is on the assessee to explain the discrepancy. The assessee cannot get away simply stating that the Assessing Officer of payer and payee is same. Since the assessee has failed to discharge the primary onus with regard to explain the difference in the receipts of the commission, the Bench find no merit in the contention of the ld. AR of the assessee. The ass ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... file of the Assessing Officer. This appeal is partly allowed for statistical purposes. 15. ITA No. 800/JP/2017. In this appeal, the only issue involved is confirming the disallowance of depreciation on car of ₹ 2,38,746, interest on car loan of ₹ 45,492/- and car insurance of ₹ 10.600/- aggregating to ₹ 2,94,838/-. The ld. CIT(A) has decided this issue by holding as under: 5. I have perused the order of the A.O. and submissions made in this regard. I find that A.O s action is correct as in absence of log book the exact extent of business usage of car cannot be ascertained. The appellant s claim that vehicles are used exclusively for business use is not proved beyond doubt. Under these facts and circumstances the addition of ₹ 2,94,838/- is confirmed. 16. Now the assessee is in appeal before the ITAT. While pleading on behalf of the assessee, the ld AR has submitted as under: 1. The assessee company derives income from commission for MLM activities. It declared net profit of ₹ 78,23,406/- on commission receipt of ₹ 85,91,151/-. 2. The AO on examination of the profit loss account observed that the assessee h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and provided the same to above persons. Assessee has only borne the expenditure on insurance, interest on car loan and the depreciation. The expenditure on running and maintenance of the car was to be borne by these members. It is for this reason that no expenditure with reference to running and maintenance of the car is claimed by the assessee. By providing the cars to these persons, the commission income of the assessee increased to ₹ 85,91,151/- from ₹ 5,63,670/- in the last year. The Ld. CIT(A) has disallowed the claim only for the reason that the user of car cannot be proved beyond doubt whereas the fact is that even after giving the complete address of the persons to whom these vehicles were provided, no enquiry was conducted by Ld. CIT(A). Further, absence of log book cannot be a basis for holding that car is not used for business purpose ignoring that assessee has not borne the expenses of running maintenance. Further, in the next AY when the activity of MLM came to a halt and these cars were sold, AO disallowed the claim holding that there is no commission income received. Thus, in the facts of the present case, user of car for the purpose of business is wel ..... X X X X Extracts X X X X X X X X Extracts X X X X
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