9911796707
TMI Blog2020 (12) TMI 628X X X X Extracts X X X X X X X X Extracts X X X X ..... nafter called "the tribunal") reads as under:- "1. That in any view of the matter the assessment order dated 21.12.2011 passed under section 143(3) of the income tax Act by the assessing officer and his action as partly maintained by the Commissioner of Income Tax (Appeals) is bad both on the facts and in law in the facts and circumstances of the case. 2. That in any view of the matter no notice u/s 143(2) of the income tax Act was served on the assessee within statutory period therefore actions of the two lower authorities in framing and confirming the assessment are illegal, invalid and without jurisdiction, hence the assessment is liable to be declared invalid. 3. That in any view of the matter the addition of Rs. 92,902.00 under the head secured loan made by the assessing officer and confirmed by the Commissioner of Income Tax (Appeals) is highly unjustified and illegal in the facts and circumstances of the case. 4. That in any view of the matter out of the addition of Rs. 14,38,925.00 an addition of Rs. 7,01,400.00 maintained by Commissioner of Income Tax (Appeals) as per his observations at page 19 of his order is highly unjustified and incorrect in the facts and circ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d by assessee before the tribunal and shall require adjudication by us. 4. The brief facts of the case are that the assessee is in the business of Coal, liquor and truck plying. During the year under consideration, the assessee has purchased a new truck bearing no. U.P 63 J 9746 which was financed by TATA Motors Finance Limited. It is the contention of the assessee that total invoice value of the truck was Rs. 15,90,000/- and down payment was made by assessee to the tune of only Rs. 40,000/-, and balance amount of Rs. 15,50,000/- was raised by assessee as loan for financing the aforesaid truck from Tata Motors Finance Limited. Thus, it is the contention of the assessee that entire sources for purchase of truck stood explained. However, it was observed by authorities below that the contracted price of the truck as adopted by Tata Motor Finance Limited was to the tune of Rs. 22,51,400 and the assessee could not explain the source of payment of Rs. 7,01,400/-, which as per authorities below was spent by assessee out of books from his undisclosed sources/ income, and which led to the additions to the income being made by the AO in the hand of the assessee by invoking provisions of Se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y Mr. Yogesh Kumar Pandey v. ITO, vide appellate orders dated 26.11.2020 passed by tribunal. After hearing both the parties and perusing the material on record, we have observed that the assessee has purchased truck number UP63J9746 during the year under consideration. The said truck was financed by Tata Motors Finance Limited. The assessee is consistently claiming before the authorities below that the total invoice amount of the truck was Rs. 15,90,000/- and the assessee has only paid Rs. 40,000/- for purchasing the truck, while Tata Motor Finance Limited has granted loan of Rs. 15,50,000/-. The assessee is claiming that contract value of the truck was determined by Tata Motors Finance Limited, to the tune of Rs. 22,51,400/- which included an amount of Rs. 6,01,400/- being upfront finance charges which was added by financer to the finance amount to compute EMI, and Rs. 1 lacs was insurance amount on truck which was paid by Tata Motor Finance Limited on behalf of the assessee and which were added by the financier only for the purposes of determining the EMI amount payable by the assessee, and no such cash outflow of Rs. 7,01,400/- was made by the assessee on both these heads. We ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nancier for purchase of truck which were collected in advance and added to the cost of truck for the purposes of funding by the financier and further an amount of Rs. 90,000/- were insurance being paid by the finance company on behalf of the assessee for acquisition of the truck which has been added to the cost of the truck for the purposes of granting/funding loan. It was further submitted that Rs. 71,199/- was paid by the assessee on 18.03.2008 which was accepted by the Revenue. The learned CIT(A) did not accepted the explanation filed by the assessee with respect to aforesaid amount of Rs. 2,44,222/- and Rs. 90,000/- towards advance finance charges and for insurance charges respectively. Before us also the similar contention were made but however no third party evidences has been brought on record by assessee to justify/substantiate the same except self-serving statement. The ld. DR supported the appellate order passed by learned CIT(A) has vehemently argued that the addition were to be confirmed. After hearing both the parties and perusing the material on record, in our considered view one more opportunity need to be granted to the assessee to produce relevant evidences to subs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the additions have been sustained by learned CIT(A) by holding that the assessee could not explain the sources from where payment of principal amount of repayment of loan vide installments paid during the year to the tune of Rs. 3,26,762/- was made by the assessee. Before us, the statement is made by learned counsel for the assessee that all the payments towards instalments of loan to Tata Motors Finance Limited was paid by assessee by banking channel. It is stated by ld counsel for the assessee that the said bank account was disclosed to department and hence no addition is warranted. The assessee has produced before us bank book and bank statements of Axis Bank, in the paper book filed with tribunal. The learned DR on the other hand relied upon the orders of learned CIT(A). After hearing both the parties and perusing the material on record, we are of the considered view that the contentions of the assessee require verification by authorities below. Thus, it is considered fit to restore the matter to the file of the AO for fresh adjudication of the issue on merits in accordance with law. The assessee is directed to produce all the relevant evidences before the AO to justify its st ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f VAT returns filed with Sales Tax Authorities, audit reports etc.. Thus, in nut-shell the learned counsel for the assessee has made statement before us that there is no investment of Rs. 37,82,572/- made by the assessee towards purchases, out of books. The ld DR stated that the assessee be directed to file books of accounts to verify its contention apart from evidences filed by it. These evidences filed before us, along with books of accounts requires verification by the authorities below. Thus, we are remitting the matter back to the file of the AO for fresh adjudication of the matter denovo on merits in accordance with law. The assessee is directed to produce relevant evidences along with the books of accounts before the AO to evidence that the purchases as per books of accounts are to the tune of Rs. 62,31,340/- and not an amount of Rs. 1,00,13,912/- as claimed to be shown in VAT return as purchases for the year under consideration, and an amount of Rs. 37,82,572/- was error in filing of the VAT return. The assessee is directed to produce relevant documentary evidences /books of account before the AO to justify his stand. The AO shall admit evidences filed by the assessee which ..... 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