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TMI Blog2018 (6) TMI 445X X X X Extracts X X X X X X X X Extracts X X X X ..... ng grounds : "1.For that on the facts and in the circumstances of the case the addition of the sum of Rs. 80,000/- on the ground of non deduction of tax at source u/s 194J is erroneous and bad in law and the confirmation of the same by CIT(A) without appreciating the submission of the appellant is unjust and unlawful. 2. For that on the facts and in the circumstances of the case the addition by disallowance of a sum of Rs. 1,58,061/-being 30% of Rs. 5,28,870/-claimed or account of service and supervision charges is unwarranted, wrong and incorrect and confirmation of the same by the CIT(A) is incorrect, erroneous and unsustainable. 3. For that on the facts and in the circumstances of the case the addition by disallowance of a sum of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s towards payment made to different persons. 4.1. The ld. CIT(A) on appeal upheld the order passed by the Ld.AO on the ground that such expenses were not supported by cogent material and neither any attempt has been made by the assessee to substantiate the genuineness of the expenses. 5. At the time of hearing of the instant appeal before us, the ld. AR submitted that it has not been disputed by the ld. AO that the expenses were actually incurred by the assessee and the same is recorded in the regular books of accounts. Further that the AO has not brought on record any cogent material so as to justify that, part of the major expenses should be disallowed on estimate basis and thus neither the said expenditure was considered to be bogus by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... T 22(1) in ITA no 3244/Del/2012 and ITO vs Lake palace hotels and motel p Itd 13 TT J(JP) 216 wherein it was held that addition made on estimated basis can not be justified and sustained in law." Taking into consideration the entire aspect of the matter and the judgement cited above we are of the view that the order passed by the ld. CIT(A) confirming the order of addition made by the AO on estimated basis without assigning any reason thereof is incorrect, erroneous and not sustainable in the eyes of law. We, therefore, delete the addition by disallowance of Rs. 1,58,061/-. 7. Ground No.3 relates to the addition by way of disallowance of the sum of Rs. 64,020/- being 30% of the total claim of Rs. 2,99,396/- as incurred on professional an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ground that the AR failed to prove the genuineness of this transaction in the appellate proceedings. The ld. AR at the time of hearing could not deliver strong argument in support of his claim. The ld. DR also relied upon the order passed by the ld. AO. 9. We have heard the rival contentions made by the parties. We have gone through the materials available on records. We, however, could not justify the attempt and conduct of the assesee to substantiate the genuineness of such expenses in its entirety in the absence of valid documents. We therefore think it fit to disallow 15% of it and delete 15% of the addition made by the AO in this regard. The said ground of appeal is thus partly allowed. 10. Ground No.4 relates to addition of Rs. 7,00 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oss in the accounts as this reduction had the effect of reducing the actual loss incurred for the year and on the other hand said Rs. 7,00,000/- was again wrongly taxed as income of the relevant year. During audit this fact of wrong presentation of account leading to wrong disclosure of loss appears to have also skipped notice and attention of the auditor. 11.1. During the assessment proceedings the assessee by its letter dated 03.11.2008 and 24.11.2008 drew attention to the ld. AO and requested to exclude the same from the income of the assessee as this is not lawfully to be taxed. The AO, however, declined to entertain the said claim of the assessee on the ground that since no revised return was filed the claim for exclusion of the same ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . It was further held in the case of Kedarnath Jute Mfg Co. Ltd vs Commissioner of Income Tax 1971 AIR 2145 that "whether assessee is entitled to a particular deduction or not will depend on the provision of law relating thereto and not on the view which the assessee might take of his rights nor can the existence or absence of entries in the books of account be decisive or conclusive in the matter". The case of the assessee is just similar to what has been cited above and the ratio laid down by the above judgements is fully applicable to the instant case. The action of non acceptance of the genuine claim of the assessee by the lower authorities is unjustified and liable to be deleted. We consider it fair and proper in the interest of justic ..... X X X X Extracts X X X X X X X X Extracts X X X X
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