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TMI Blog2021 (2) TMI 1079X X X X Extracts X X X X X X X X Extracts X X X X ..... trol were produced before the AO. The books of account were not rejected. It seems that the evidence given by assessee was not properly considered. No reasons were given to decline the claim. Taking into account have been available on record. We are of the view that the claim of the assessee has wrongly been declined which is infact liable to be examined. Accordingly, we set aside the finding of the CIT(A) on this issue and restore the issue before the AO to decide the issue after giving an opportunity of being heard to the assessee. Disallowance of Repair and Maintenance Expenses - HELD THAT:- The assessee started its business in the preceding year in which fuel expenses has also been shown. Anyhow subsequently, the assessee expanded its business by repairing and maintenance of the water park. The AO nowhere concluded about this fact that the expenditure was capital in nature or revenue in nature. On seeing the facts and circumstances of the case, we find that in the case of amusement park, constantly repair and maintenance is required. The assessee submitted the ledger as well as bills on record - At the time of arguments, the Ld. DR draw the attention towards this fact t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aid by cheque etc. However, in some cases payments can be accepted through credit card/debit card - HELD THAT:- The assessee has given a complete list of entry fees for the verification of the claim. In another assessment year such claim of assessee was not disallowance which was not bothered to touch by the lower authority. The claim of the assessee was declined on the basis of surmises and conjectures which is not justifiable. In other years, the claim of the assessee was allowed. The AO nowhere brought into any other evidence to which it can be assumed that the cash was not belonging to the assessee or the same was unexplained. Taking into account all the facts and circumstances, we are of the view that the finding of the CIT(A) is not justifiable to decline the claim of Assessee, hence, we set aside the finding of CIT(A) in this regard, we ordered accordingly and allowed the claim of the assessee. Accordingly, this issue is decided in favour of the assessee against the revenue. Nature of expenditure - compensation to the Forest Department on account of the decision of Hon'ble Supreme Court - Revenue or capital expenditure - AO treated the said amount as capital in natu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) For the Appellant : Y. P. Trivdedi and D.C. Jain For the Respondents : Manpreet S. Duggal, Sr. AR ORDER Amarjit Singh, Member (J) The assessee has filed the above mentioned appeals against the different order passed by the Commissioner of Income Tax (Appeals)-17, Mumbai [hereinafter referred to as the CIT(A) ] relevant to the A.Ys. 2006-07 2013-14. ITA. NO. 6931/M/2019 2. The assessee has filed the present appeal against the order dated 29.08.2019 passed by the Commissioner of Income Tax (Appeals)-17, Mumbai [hereinafter referred to as the CIT(A) ] relevant to the A.Y. 2006-07. 3. The assessee has raised the following grounds:- 1. Under the facts and circumstances the learned CT (Appeals) erred in confirming the assessment order passed u/s. 143 (3) dated 26/12/2008 by the learned Dy. Commissioner of Income tax, Range 8 (2) Mumbai in Violation of the principles of natural Justice, determining the income at ₹ 27789100/- against the declared income of ₹ 7616860/-. 1(a) The learned CIT (Appeals) as well as the learned Assessing officer failed to appreciate that:- i) The assessee should have knowledge of the material t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... declaring the income from Directors remuneration have been filed and taxes have been paid. iii) No proper opportunity was given to file explanation/details. iv/Details/explanation filed during Remand Proceedings not considered. 5 (a) The learned CIT (Appeals) as well as the learned Assessing officer failed to appreciate that:- i) return of income filed along with audited statement of accounts. ii) no proper opportunity was given to file specific details/supporting. iii) Details/explanation filed during Remand proceedings not considered 6) Under the facts and circumstances and in law the learned CIT (Appeals) erred in confirming the disallowance a sum of ₹ 13129405/- out of cash deposited in Bank. 6 (a) The learned CIT (Appeals) failed to appreciate that:- i) the appellant company received cash from the customers, who visits the Water-Park and deposits the cash from time to time in the bank. ii) the return of income is filed along with audited statement of accounts and tax audit report as required by law. No proper opportunity was given to file the specific details/explanation. iv) the details/explanation filed during Rem ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 1 to 4 of the paper book. Accordingly, the expenses have been shown to the tune of ₹ 9,26,624/-. The vouchers/purchase bills have also been produced by assessee which lies at page no. 5 to 18 of the paper book. The contention of the assessee is that the claim has duly been supported by ledger books as well as invoices/bills available on record but the claim of the assessee has not been allowed in accordance with law. Sufficient evidence is on the file. The documents relied by the Ld. Representative of the assessee was not discredited with speaking order. There is no plausible reason as to why the said expenses were not allowable. The CIT(A) disallowed the claim of the assessee on the basis of this fact that the assessee failed to produce the documents before the AO. But it is not the good reason to decline the claim because the assessee has under taking before us to the effect that all the documents were produced before the AO as well as CIT(A). However, the CIT(A) sought the remand report and the remand report speaks only about the submission of ledger but nowhere speak that the submission of bills which are on record. Any how the voucher/bills were produced before the AO. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... On appraisal of the record available with us, we found that the business of the assessee had been started in the preceding assessment year of 2006-07. The assessee started its business in the preceding year in which fuel expenses has also been shown. Anyhow subsequently, the assessee expanded its business by repairing and maintenance of the water park. The AO nowhere concluded about this fact that the expenditure was capital in nature or revenue in nature. On seeing the facts and circumstances of the case, we find that in the case of amusement park, constantly repair and maintenance is required. The assessee submitted the ledger as well as bills on record which lies at page no. 14 to 173 of the paper book. At the time of arguments, the Ld. DR draw the attention towards this fact that the specific bills of vehicle were not found proper, hence, the claim was rightly rejected. Considering this specific fact of the present case, we are of the view that the claim of the assessee is liable to be verified at the end of the AO who certify the claim of the assessee in accordance with law. Needless to say that an opportunity to be heard is liable to be given in accordance with law. Accordin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... any. Referring to the order of the FAA for the AY. 2008-09, he restricted the disallowance to ₹ 3 lakhs. 7.2. Before us, the AR argued that remuneration paid to RM(₹ 6 lakhs) was allowed by the Assessing Officer, while passing the order for the AY. 2011-12, that there was no basis to hold that RM was not providing services to the assessee. He referred to the pages 82 of the paper book. The DR supported the order of the AO and the FAA. 7.3. We have heard the rival submissions and perused the material. We find that the AO had disallowed the entire remuneration paid to the director, that the FAA restricted it to 50%, that the director had offered the remuneration income in her individual return of income, that the return of the director was accepted by the Department, that the AO had not made any enquiry about the assertion made before the assessee before him, that it was claimed that she was attending the day-to-day affairs of the company and had stood as guarantor to the banks, that in the subsequent year the AO had allowed the remuneration (₹ 6 lakhs) paid to her. Considering these facts we are of the opinion that there was no justification for restric ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rgued that the remand report was also filed by AO which was not also considered, therefore, the finding of the CIT(A) is not justifiable, hence, is liable to be set aside. The Ld. DR has refuted the said contention. The assessee is running amusement park with the name and style of Suraj Water Park. The assessee was receiving the cash by selling the tickets in cash for the entry in the park as well as for the different activity going on in the park. The assessee was depositing the cash on the same day and if not possible then on an another day. In such type of business certainly no amount was paid by cheque etc. However, in some cases payments can be accepted through credit card/debit card. The assessee has given a complete list of entry fees for the verification of the claim. In another assessment year such claim of assessee was not disallowance which was not bothered to touch by the lower authority. The claim of the assessee was declined on the basis of surmises and conjectures which is not justifiable. In other years, the claim of the assessee was allowed. The AO nowhere brought into any other evidence to which it can be assumed that the cash was not belonging to the assessee or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1/M/2019, therefore there is no need to repeat the same. However, the figure is different. ISSUE NO. 1 15. The assessee has challenged the disallowance of ₹ 4,05,46,020/-. The Ld. Representative of the assessee has argued that the assessee paid the compensation to the Forest Department on account of the decision of Hon'ble Supreme Court but the AO has treated the claim as capital in nature, hence, the finding of the AO confirmed by the CIT(A) is not justifiable and is liable to be set aside. However, on the other hand, the Ld. Representative of the Department has refuted the said contention and argued that the compensation was given on account of land acquired by assessee, therefore, it is a capital in nature, hence, the finding of the CIT(A) is quite justifiable. With due regard to the arguments advanced by the Ld. Representative of the parties, we noticed that the assessee purchased the land from Smt. Hiragauri Shankarlal Vyas by virtue of sale-deed 24.11.1988 and the copy of sale-deed lies at page no. 60 to 71 of the paper book. The appellant was running an amusement park namely Suraj Water Park on the said land. The revenue record speaks about the ownership ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the CIT(A) on this issue and allow the claim of assessee. This issue is decided accordingly in favour of the assessee against the revenue. ISSUE NO. 2 16. Under this issue the assessee has challenged the disallowance of Depreciation in sum of ₹ 8,00,964/-. The assessee has furnished the necessary detail of plant and machinery in the A.Y. 2006-07. The payment was made through cheque which has been shown in the balance-sheet. The copy of balance-sheet lies at page no. 13 of the paper book-1 which speaks about the necessary details of equipment which was accepted by the auditors. It seems that the issue was not properly examined. We are of the view that the details of plant and machinery are required to be examined properly in the light of the evidence produced by the assessee and accordingly the claim of the depreciation is liable to be considered, therefore, we set aside the finding of the CIT(A) on this issue and restore the issue before the AO to decide the matter of controversy afresh by giving an opportunity of being heard to the assessee in accordance with law. ISSUE NO. 3 17. Issue no. 3 is in connection with the disallowance of claim of TDS in sum ..... X X X X Extracts X X X X X X X X Extracts X X X X
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