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TMI Blog2019 (4) TMI 1118X X X X Extracts X X X X X X X X Extracts X X X X ..... ng also, neither the assessee not his Authorized Representative was present to represent the case. The notice of hearing sent to the assessee has not been returned un-served. In these circumstances, it appears that the assessee is not interested in prosecuting the appeal. We have recorded the presence of the Ld. DR. In these facts and circumstances, we proceed to decide the appeal with the assistance of the Ld. DR and materials/ documentary evidences available on record. 3. The brief facts in this case are that the assessee company is engaged in the business of excavation of land and works related to earthmoving and excavation with earthmoving/excavator machineries and rock breakers. The assessee company used its Dooshan Breaker Machines a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssessee attended and submitted a letter stating that the depreciation is allowable as claimed by the company and the same may be allowed. Further, a letter dated 07/01/2016 was written and duly served on the assessee on 13/01/2016 rejecting his objection raised by the assessee on issuance of notice u/s 148 of the Act and the assessee was also given one more and final opportunity to submit the complete information and all documents called for. Thereafter, the assessment proceedings u/s.143(3) r.w.s.147 of the Act was completed by the Assessing Officer assessing total income of the assessee at Rs. 26,45,564/- after making following disallowances : i) Disallowance of Excess Depreciation Claimed Rs.3,95,132/- ii) Disallowance of expenses o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... red was disallowed which comes to Rs. 2,06,661/-. 7. During First Appellate proceedings, the assessee has reiterated the submissions more or less made the Assessing Officer. However, the Assessee could not produce any necessary evidences in this regard. The Ld. CIT(Appeals) observed as is evident from the assessment order that the assessee was asked to produce log books, oil, diesel consumption books, running hour book and mileage register for each of the machineries, vouchers and bills etc. However, the assessee could not produce/file any of such details asked by the Assessing Officer. The Ld. CIT(Appeals) after considering the submissions of the assessee, assessment order held that reasonable disallowance of only 5% of the entire claim m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Ld. CIT(Appeals), the assessee has contended that as per provisions of section 43B of the Act, if taxes is paid on or before income tax return filed, then such expenses were allowable for same assessment year and not next year. It was further submitted that the Assessing Officer did not refer to the provisions of section 43B while disallowing such expenditure. The Ld. CIT(Appeals) after considering the submissions of the assessee and assessment order confirmed the addition made by the Assessing Officer by observing as under: "7.3.2 I do not find any logic in the submission of the appellant for the simple reason that the AO had disallowed the interest u/s.40(a)(ia) r.w.s.194A of the Act for non deduction of TDS and non-payment of TDS wit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the assessee company had invested an amount of Rs. 60,00,000/- in shares of related company M/s. Ajanta Universal Fabrics Ltd. Karad with intention to earn exempt income. The assessee had invested the funds of the company to earn exempt income and on the other hand the company had taken loans from banks and paid interest and claiming deduction thereon. The assessee stated that there is no any expenditure in respect of exempt income and hence the provisions of section 14A cannot be invoked. 15. During the First Appellate Proceedings, the Ld. CIT(Appeals) observed that assessee is in receipt of income which do not form part of the total income in the form of share of profit from partnership firm of Rs. 4,87,464/- and the said income h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nditure claimed in earning of the said income. The Hon'ble Bombay High Court in the case of Godrej & Boyce, 328 ITR 81 (Bom.) authorize the Assessing Officer to re-compute the disallowance u/s.14A as per prescribe method only in case the Assessing Officer is not satisfied with the claim of the assessee having regard to its account. The said principle has also been upheld by the ITAT Madras in the case of M/s. Shiva Industries of Holdings Ltd. Vs. ACIT reported as 59 DTR (Chennai) (Trib.) 182 and also by the Delhi Tribunal in DCIT Vs. M/s.Jindal Photo Ltd. ITA No. 814/Del/2011 dated 23.09.2011. The Assessing Officer in the present case is noticed to be not satisfied with the correctness of the claim of the assessee and findings no expend ..... X X X X Extracts X X X X X X X X Extracts X X X X
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