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TMI Blog2018 (12) TMI 527X X X X Extracts X X X X X X X X Extracts X X X X ..... s the said is an allowable liability having examined & appreciated the 'commercial expediency & business exigencies' thus the action is unwarranted & unsustainable in law. (b) Even alternatively the quantum of addition is disputed. 3. Because the action is under challenge on facts & law, for an addition of Rs. 16,300/- on account of advertisement expenses being expenses debited as per statement of BPTP. 2. Briefly stated facts as culled out from the records are that the assessee, individual has shown source of income from dealing in real estate, pension, house property, interest from bank etc. For the year under consideration the assessee filed return of income on 30/07/2010 declaring income of Rs. 10,22,210 and agriculture income of Rs. 45,000/-. The case of the assessee was selected for scrutiny and notice under section 143(2) of the Income-tax Act, 1961 (in short 'the Act') was issued and in response authorised representative of the assessee attended and filed part of the replies, however, books of accounts were not produced before the Assessing Officer. The Assessing Officer noted that during the year under consideration the assessee shown commission of Rs. 12,35, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ions under section 36(2) has not been submitted. No confirmation or reconciliation of BPTP is submitted. Thus, the assessee cannot claim benefit of his own badly shaped accounts by passing book entries into un-reconciled accounts without furnishing any detail or evidence. In view of the above discussion and for the reasons the creditors to the extent of Rs. 42,76,362/- cannot be accepted as existing or genuine and are added to the income of the assessee. In this way net addition on this comes to Rs. 42,76,362/-. I am satisfied that the assessee has concealed his income by furnishing of inaccurate particulars of his income on this account and therefore penalty proceedings u/s 271(1)(c) of the Income Tax Act, 1961 are hereby initiated. (Addition Rs. 42,76,362/-)" 2.1 The Assessing Officer also made disallowance of advertisement expresses of Rs. 16,300 and other disallowances. The assessment was completed on 26/03/2013 assessing the total income at Rs. 62,78, 110/-. 2.2 Aggrieved, the assessee filed appeal before the Ld. CIT(A), who partly allowed the appeal of the assessee. Aggrieved, the assessee is in appeal before the Tribunal raising the grounds as reproduced above. 3. In g ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the appellant. b) The appellant has not been able to establish any sufficient cause that prevented him from furnishing this evidence earlier. c) Perusal of assessment order reveals that the AO has been constantly calling information from the appellant and the appellant has been constantly denying the information to the AO till the fag end of financial year. d) And most importantly coming to the specifies of the additional evidence furnished by the appellant it needs to be appreciated that the appellant has not furnished before the AO even the most basic information which would have been readily available with him i.e. the complete list of the creditors along with their addresses. I can understand if the appellant was unable to furnish the confirmed copies of account of the creditors as this information was dependent upon a third party i.e. the creditors.-However the names of the creditors and their addresses are the basic information which would have been available with the appellant under any circumstances. The appellant has been unable to give any justification for what prevented him from furnishing the names and addresses of the creditors as appearing in his books of ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... which he asserts, must prove that these facts exist. When a person is bound to prove the existen.ee of any fact, it is said that the burden of proof lies on that person." The rule that the burden of proof lies on the person who son who asserts a facts in the affirmative is derived from the ancient maxim of Roman Law, ei qui affirm at, non ei qui negat, incurnbit probation, and has been adopted on two considerations: (i) In the nature of things a negative is more difficult to establish than the affirmative; and (ii) where a person has invoked the process of law to establish a case which is based on the facts asserted by him, it is but reasonable that the obligation to prove suchfacts should rest on him. And as has been observed, the appellant totally failed to discharge his burden of proof. 17. Thus after examining the assessment order and in light of my observations above I see no reasons to interfere with the finding of the AO. Thus Ground No. 1 of the appellant is dismissed." 3.3 Before us, the Ld. counsel of the assessee submitted that the Ld. CIT(A) was not justified in rejecting the additional evidences and deciding the issue without taking into consideration those addition ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ue of applicability of provisions of section 41(1) of the Act in the case of the assessee. In our opinion, in order to decide the issue in question, it is important to admit the additional evidences filed by the assessee. The Ld. counsel has submitted before us that those evidences have not been filed due to ignorance on the part of the authorised representative appearing before the Assessing Officer and for which the assessee cannot be penalized. In view of the submission of the Ld. Counsel, and in the interest of Justice, we feel it appropriate to admit the additional evidences and restore the matter in dispute to the Ld. CIT(A) for deciding a fresh after analyzing the documents or the evidences, which the assessee may file before him. The Ld. CIT(A) may call for remand report from the Assessing Officer. We note that no books of accounts were produced during the assessment proceeding, therefore we direct the assessee to produce all the books of accounts along with vouchers for the year under consideration before the authorities. We also direct the assessee to produce confirmation of the creditors along with their copy of ledger accounts, complete narration of the transaction alon ..... X X X X Extracts X X X X X X X X Extracts X X X X
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