9911796707
TMI Blog2021 (8) TMI 365X X X X Extracts X X X X X X X X Extracts X X X X ..... ] -Thus the issue whether the assessment framed under section 147 of the Act in the given facts and circumstances is sustainable in the eyes of law is upheld. Accordingly, we are not impressed with the argument of assessee. Whether the proceedings under section 147 of the Act were initiated by the AO was merely on the basis of the information received from the VAT department, Maharashtra without application of mind? - AO upon receiving the information from the VAT department, Maharashtra verified from the financial statements of the assessee and thereafter found that the assessee has shown creditors in its books in the name of the aforesaid entities on account of purchases of consumables. The amount of consumables purchase from the aforesaid entities shown in the books of accounts was exactly matching with the information received from the VAT department, Maharashtra. Thus what is inferred is this that the AO after application of his mind arrived on the reasons to believe that the income of the assessee has escaped assessment. Furthermore, the AO at the time of issuing notice under section 148 of the Act has to form prima facie opinion for the escapement of income rather than he ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... from the commission agents to the AO. Therefore in such circumstances we do not find any infirmity in the order of the learned CIT(A). Hence the ground of appeal of the assessee is allowed subject to verification. Addition on account late payment of EPF - Addition u/s 36(1)(va) read with section 2(24)(x) on delayed payment of Employee contribution to the PF account - HELD THAT:- As relying on GUJARAT STATE ROAD TRANSPORT CORPORATION [ 2014 (1) TMI 502 - GUJARAT HIGH COURT] issue decided against assessee. Addition u/s 14A - AO found that the assessee during the year made investment in share and mutual funds and also incurring interest expenses but did not offer any disallowances of expenses - addition on two fold i.e. on account of interest expenses and on account of administrative expenses - HELD THAT:- Assessee before CIT(A) has claimed that it has sufficient interest free fund of 10308.49 million to meet the amount of investment of 72.69 million. The assessee in support of its claim has also submitted copy of balance sheet before the learned CIT(A). We find that the claim of the assessee was not controverted by the learned CIT(A) or by the learned DR. At the outset we note that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he earlier year which were treated as deferred revenue expenditure and the same were accepted by the revenue in the assessment framed under section 143(3) of the Act cannot be doubted in the year under consideration. It is because the expenses were not incurred in the year under consideration. But the deduction was claimed in the year under consideration as the same was treated as deferred revenue expenses in the earlier assessment year and that fact was also admitted by the revenue. Accordingly we are of the view that such expenses cannot be disallowed in the year under consideration without disturbing the year to which such expenses relate. Accordingly, we are not impressed with the finding of the authorities below - we direct the AO to verify before allowing the deduction of such expenses whether these expenses were treated as deferred revenue expenditure in the earlier assessment years and the same were accepted in the assessment framed under section 143(3). Addition made on account mismatch in the amount of income disclosed in the books of accounts viz a viz reflected in the form 26 AS - HELD THAT:- Admittedly, the onus lies upon the assessee to furnish the necessary details a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rading of steel items. The assessee in the year under consideration filed return of income declaring loss which was accepted in assessment framed under section 143(3) of the Act vide order dated 15th March 2013. Subsequently the AO received information from the VAT department, Maharashtra that the entities namely M/s. Induja Traders Pvt. Ltd. and M/s. Kotsons Impex Pvt. Ltd. were engaged in the activity of issuing the bogus bills of sales on commission basis. The assessee was one of the party to whom bogus sales bill were issued to the extent of ₹ 100,49,72,680/- being ₹ 54,34,97,318/- and ₹ 46,14,75,364/- from the respective entities as aforesaid. The directors of the impugned entities during VAT proceeding accepted on oath that sales shown in the name of the assessee were bogus. As such the bogus sale was made by the aforesaid entities after charging commission @ 0.05% from the assessee. In-fact these impugned entities were not involved in the actual sale and purchase activities. 4.1. The AO further observed that such amount were recorded as purchase of consumables for steel division in the books of accounts of the assessee. In view of the above the AO formed h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ned CIT-A, the assessee is in appeal before us. 6. The learned AR before us challenged the validity of the reassessment framed under section 147 of the Act on 4 counts. The 1st submission of the learned AR is that the information gathered from the VAT department, Maharashtra was very much available with the AO at the time of the assessment proceedings carried out under section 143(3) of the Act which was concluded on 15th March 2013 whereas the notice under section 148 of the Act was issued dated 15th May 2013 i.e. within a period of two months from the conclusion of assessment under section 143(3) of the Act. As such the AO should have used the information gathered from the VAT department, Maharashtra regarding the bogus purchases made by the assessee, in the assessment proceedings framed under section 143(3) of the Act without resorting to the provisions of section 147 of the Act. 6.1. The 2nd fold of the contention of the learned AR is that it has filed the return in pursuance to the notice issued under section 148 of the Act dated 27th May 2013 whereas the reasons for the reassessment has been provided dated 4th October 2013. As such the reasons for the reopening were provide ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... We have heard the rival contentions of both the parties and perused the materials available on record. The proceedings initiated under section 147 of the Act, in the case on hand, has been challenged by the assessee on various counts. The 1st basis for challenging the assessment proceedings initiated under section 147 of the Act was that the assessment under section 143(3) of the Act was concluded on 15th March 2013 whereas the proceedings under section 147 of the Act were initiated by issuing a notice dated 15th May 2013. Accordingly, it was contended that the AO while framing the assessment under section 143(3) of the Act should have used the information received from the VAT department, Maharashtra. But the AO has not done so and unnecessary resorted to the provisions of section 147 of the Act which could have been avoided. In this connection, we note that the assessee before us has not brought any documentary evidence suggesting that the information from the VAT department, Maharashtra was available with the AO before the conclusion of the assessment under section 143(3) of the Act. On the contrary, we find that the AO in his reassessment order has given a clear finding that th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as the notice under section 148 of the Act was issued by the AO dated 15th May 2013 and objection raised by the assessee was disposed off vide separate order dated 14th February 2014. In other words, the notice under section 148 of the Act was issued and objection was disposed off by the AO much prior to the judgment delivered by the Hon'ble Gujarat High Court. Thus it is concluded that it was not possible for the AO to comply the directions of the Hon'ble Gujarat High Court as discussed above. 7.4. It is also pertinent to note that the principles laid down by the Hon'ble Apex court in the case of GKN Driveshaft (India) Ltd. vs. ITO reported in 259 ITR 19 were very much applicable where there was no such time limit for supplying the reasons recorded to the assessee was mentioned. In the judgment of GKN Driveshaft (India) Ltd. (supra) the Hon'ble Apex Court has directed to supply the reasons recorded by the AO to the assessee on demand which has been duly complied with by the AO in the case on hand. The relevant part of the judgment of the Hon'ble court reads as under: There was no justifiable reason to interfere with the order under challenge. However, it was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pression 'reason to believe' in section 147 does not mean purely subjective satisfaction on the part of the Assessing Officer. The belief must be held in good faith; it cannot be merely a pretence. 8.1. In view of the above we are not impressed with the argument of the learned AR for the assessee. 9. The last contention of the learned AR for the assessee was that there was no disallowance made by the AO in the assessment framed under section 147 of the Act on account of freight expenses despite the AO has recorded the same in the reasons for escapement of income on account of such expenses. In this connection, we find that the proceedings were initiated under section 147 of the Act after recording the reasons on two counts namely bogus purchases viz a viz freight expenses on such bogus purchases. Admittedly, the addition on account of bogus purchases has been made by the AO which is sufficient enough for initiating the proceedings under section 147 of the Act. In other words, the initiation of the proceedings cannot be held invalid merely on the reasoning that there was no addition made by the AO on account of freight expenses though there was the mention of such expenses ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the assessee has approached to him for discounting the letter of credit by showing the transactions of purchase and sales for a commission at the rate of 0.05%. For this purpose, the assessee itself generated the bogus bills of the purchases and sales in the name of the entities as discussed above. 12.3. Likewise, the director of M/s. Kotson also accepted in the statement furnished before the sales tax officials and affidavit filed during VAT proceeding that the company issued bogus invoices against the commission to the assessee. 12.4. The statement recorded by the VAT department, Maharashtra during the search proceedings and affidavit filed were provided to the assessee for its rebuttal but the assessee failed to bring any document on record suggesting that the statements were not correct. Accordingly, the AO held that the directors of both the companies were engaged in the activity of Hawala transactions which is established in the VAT proceedings. 12.5. Similarly, the notice issued under section 133(6) of the Act to the transporter namely M/s. Nidhi Roadways were returned as unserved and therefore the authenticity of the transportation expenses of actual movement of goods ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce, the plea of the assessee for providing the cross-examination opportunity cannot be entertained. iv. There was no doubt raised by the AO about the payments which were made through the account payees cheques. 14.1. In view of the above, the learned CIT(A) was of the opinion that the estimated disallowance at the rate of 25% of the purchases will provide justice to plug the leakage of revenue. Accordingly the learned CIT(A) confirmed the addition in part for an amount of ₹ 25,12,43,170/- and deleted the addition for an amount of ₹ 75,37,29,510/-. Thus the ground of appeal of the assessee was partly allowed. 15. Against the order of the learned CIT(A) both the assessee and Revenue are in appeal before us. The assessee is appeal against the addition sustained for ₹ 25,12,43,170/- whereas the Revenue is in appeal against the deletion of addition up to 75% i.e. ₹ 75,37,29,510/- only. The Revenue in ITA No. 3194/Ahd/2016 has raised the following grounds. 1. The Ld. CIT(A) has erred in law and on facts in restricting the addition @ 25% amounting to ₹ 25,12,43,170/- as against ₹ 100,49,72,680/- on account of bogus purchase without properly apprec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uted facts as detailed under: i. The assessee has purchased the goods from the company namely M/s. Induja Traders Pvt. Ltd. for ₹ 54,34,97,318 and sold the same while the goods were in transit in most of the cases on same day to another company namely M/s. Color Shop Pvt. Ltd. for ₹ 54,49,05,854/- which was controlled and managed by same set of people who were controlling and managing the supplier company i.e. M/s. Induja Traders Pvt. Ltd. Similarly, the assessee purchased goods from M/s. Kotsons Impex Pvt. Ltd. for ₹ 46,14,75,362/- and sold the same similarly to the sister concern of M/s. Kotsons Impex Pvt. Ltd. namely Priya Exim Pvt. Ltd. for ₹ 46,88,50,993/-. In this transaction the assessee is earning nominal profit of ₹ 87,84,167/- @ 0.86% which creates doubt why should the management of supplier company sale goods to the assessee and purchase the same from assessee on same day in the name of sister concern. ii. The assessee has sold the goods on the day of purchase but these purchases were classified in the books of accounts under the head consumables. Thus the assessee has wrongly classified the goods under the head consumables though these ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to work-out the income from the bogus activity carried out by the assessee. Some element of guesswork is required to determine the income of the assessee which is embedded in the bogus activities carried out by the assessee. In deciding the element of income, we find that Hon'ble Gujarat High Court in the case of Vijay Trading Co. (supra) has taken 25% of the purchase cost as income of the assessee. Respectfully following the same we hold that there is no infirmity in the order of the learned CIT(A). 18.4. The third question arises for the adjudication whether it is sine qua non for providing cross examination opportunity to the assessee. Admittedly, the entire addition was based predominantly on the information received from the VAT department, Maharashtra. It was alleged by the VAT department, Maharashtra that the entities namely M/s. Induja Traders Pvt. Ltd. and M/s. Kotsons Impex Pvt. Ltd. were engaged in providing bogus bills against the commission. The above facts were also accepted by the Director of respective entities in their statement furnished and affidavit filed before the VAT authority. The statement of the directors of such entities collected by the VAT departme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e the Hon'ble Apex Court has held that it is necessary where addition is solely based on the statement of third party. The relevant finding of the Hon'ble Apex Court reads as under: Not allowing the assessee to cross-examine the witnesses by the Adjudicating Authority though the statements of those witnesses were made the basis of the impugned order is a serious flaw which makes the order nullity inasmuch as it amounted to violation of principles of natural justice because of which the assessee was adversely affected. It is to be borne in mind that the order of the Commissioner was based upon the statements given by the aforesaid two witnesses. Even when the assessee disputed the correctness of the statements and wanted to cross-examine, the Adjudicating Authority did not grant this opportunity to the assessee. It would be pertinent to note that in the impugned order passed by the Adjudicating Authority he has specifically mentioned that such an opportunity was sought by the assessee. However, no such opportunity was granted and the aforesaid plea is not even dealt with by the Adjudicating Authority. 18.7. But here in the case of assessee it is not the situation that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wed by the learned CIT(A). 24. On the contrary, the Learned DR vehemently supported the order of the authorities below. 25. We have heard the rival contentions of both the parties and perused the materials available on record. As we have already given a finding that the assessee carried out bogus transactions of purchase and sales, thus in our considered view such charges are not eligible for the deduction. It is because the assessee was not carrying out the bogus transactions. Hence, we do not find any reason to interfere in the finding of the authorities below. Thus the ground of appeal of the assessee is dismissed. 25.1. In the result the appeal of the assessee is dismissed. Coming ITA No- 3194/Ahd/16 of Revenue's appeal for A.Y. 2010-11 26. The Revenue has raised following grounds of appeal: 1. The Ld. CIT(A) has erred in law and on facts in restricting the addition @ 25% amounting to ₹ 25,12,43,170/- as against ₹ 100,49,72,680/- on account of bogus purchase without properly appreciating the facts of the case and the material brought on record. 2. On the facts and in the circumstances of the case the Ld. CIT(A) ought to have upheld the order of the Asse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... O should be directed to allow the said allowance while computing the total income. 8. That the learned CIT(A) has erred in law and facts by confirming the disallowance of claim of ₹ 3,63,06,857/- made under section 35D of the Act and therefore the learned AO should be directed to allow the said c aim while computing the total income. 9. That the appellant craves liberty to add, amend, alter and delete any grounds of appeal before the final hearing. 29. The first issue raised by the assessee is that the learned CIT(A) erred in confirming the disallowances of commission paid to foreign agent on account of non-deduction of TDS under section 195 of the Act. 30. The facts in brief are that in the year under consideration the assessee paid certain amounts as commission to its agents in USA and UAE. But the assessee did not deduct taxes under section 195 of the Act. The assessee was of the view that the impugned agent operates in their respective country having no business establishment in India and further the payment made to them in their own country directly was without involving any agent in India. Hence the income of the agent did not accrue or arise in India. Therefore i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d by AO in Para 4.2 of the assessment order that the appellant has claimed to have paid export commission to the foreign parties USA, UAE which is said to have been made for utilization of their services for procuring orders from overseas companies and services were said to have been offered to procure export sales orders However, the nature of actual services rendered seems to have not been examined by the AO. If the commission is paid to foreign agents for services rendered outside India merely for procuring sales orders and the agents do not have any PE in India, the ratio of said decision of ITAT in the case of Pankaj A. Shah will be applicable as such income of nonresident agents would not then be taxable in India. However, if there is any managerial or technical services rendered for which commission s paid, then the provisions for tax deduction will be applicable. Considering this aspect I direct the AO to verify the nature of services rendered by the three parties and allow the deduction of commission if he finds that the actual services rendered by them is towards procurement of orders outside India and had no PE in India. If however, he finds that the services are of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nts to the AO. Therefore in such circumstances we do not find any infirmity in the order of the learned CIT(A). Hence the ground of appeal of the assessee is allowed subject to verification. 39. Next issue raised by the assessee is that the learned CIT(A) erred in confirming addition of ₹ 8,69,374/- on account late payment of EPF. 40. The AO during the assessment proceeding observed that the assessee has made delayed payment of Employee contribution to the PF account to the tune of ₹ 8,69,374/-. Accordingly the AO, in view of the provision of section 36(1)(va) read with section 2(24)(x) treated the same as income of the assessee and added to the total income. Subsequently the learned CIT(A) also confirmed the same. 41. Being aggrieved by the order of the ld. CIT(A), the assessee in appeal before us. 42. At the outset, we note that the issue is covered against the assessee by the judgment of Hon'ble Gujarat High Court in the case of CIT vs. GSTRC reported in 41 taxmann.com 100 where it was held as under: In view of the above and considering section 36(1)(va), read with sub-clause (x) of clause (24) of section 2, it is to be held that with respect to the sum rec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... orm of shares, reserve & surplus and accumulated depreciation whereas the amount of investment stands as ₹ 72.69 million. Therefore no disallowances for interest expenses can be made. The assessee also submitted that the disallowances of administrative expenses can only be made @ 0.5% of the averages investment from which exempted income was earned. However, during the year it has not earned any dividend income on any of the investment. The assessee further contended that the disallowances under section 14A cannot be made over and above the exempt income. Hence disallowances in its case is not required as no exempt income was earned. The assessee in this regard placed its reliance on various case laws which are placed on record. 47. The learned CIT(A) after considering the facts in totality restricted the disallowances to the extent of exempt income earned in view decision of this ITAT in case of Madhusudan Industries Limited in ITA No-1715/Ahd/2011. 48. Being aggrieved by the order of the learned CIT(A), both the assessee and the Revenue are in appeal before us. The assessee is appeal for not directing to delete the entire addition whereas the Revenue is in appeal against ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing the same we direct to the AO delete the addition made on the account of interest expenses. 50.3. Coming to the second fold of addition i.e. addition on account of administrative expenses. In this regard we note that the AR contended that during the year under consideration the assessee has not earned any exempt income. Therefore in absence of exempt income no such disallowances can be made. At the outset we note that the issue on hand has been covered by the order of the coordinate bench of this ITAT in case of Madhusudhan Industries Limited in ITA No-1715/Ahd/2011 where it was held by the coordinate bench that the disallowances of expenses under section 14A r.w.r 8D of the Act cannot be made over and above the exempt income earned by the assessee. Respectfully following the same we do not find any infirmity in the order of the learned CIT(A). In the result the ground of appeal of the assessee is allowed whereas the ground of appeal of the Revenue is dismissed. 51. Next issue raised by the assessee is that the learned CIT(A) erred in confirming the part disallowances for ₹ 56,94,49,965/- on account of bogus purchases. 52. We also find that the Revenue is also in appeal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , payment details and details of recipient of such expenditure was not satisfactory explained by the appellant during the assessment proceedings as well as during the appellate proceedings. Therefore, the additions made by the AO are found justified hence confirmed. 57. Being aggrieved by the order of ld. CIT-A, the assessee is in appeal before us. 58. The learned AR before us submitted that part of the advertisement expenses were admitted by the AO and part of the advertisement expenses which were treated as deferred revenue expenses by the assessee were disallowed. As per the learned AR the AO cannot give different treatment of the same expenses merely on the reasoning that some of the expenses was shown as deferred revenue expenses in the balance sheet prepared under the companies Act but the same was claimed as deduction in the computation of income while determining the taxable income of the assessee. However, the learned AR before us prayed to restore the issue to the file of the AO for fresh adjudication as per the provisions of law. The learned AR also assured to file the requisite details to the AO. 59. On the other hand, the learned DR did not object on restoration of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction 35D of the Act. 64. The AO observed that the assessee in computation of income claimed deferred revenue expenses amounting to ₹ 3,63,06,857/- under section 35D of the Act. Accordingly the assessee was asked for explanation. 64.1. The assessee submitted that during the year it has claimed preliminary expenses of ₹ 4,11,16,813/- only and out of the same, an amount of ₹ 3,63,06,857/- pertain to earlier years. The assessee also submitted that these expenses were incurred with respect to Hybrid Bus T-cab project development. The assessee further claimed that in scrutiny assessment under section 143(3) of earlier years, these expenses were allowed. 64.2. However the AO observed that only limited expenditure qualify under the provision of section 35D of the Act which are as follow. • Legal charges for drafting any agreement between the assessee and any other persons relating to the setting up of the business of assessee. • Legal charges for drafting the memorandum and articles of association if tax payers is a company. • Printing expenses of the expenses of the memorandum and articles of association if the tax payer is a company. • Re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assed u/s. 143(3) of the Act for this assessment year. Therefore, contention of the appellant is rejected, the additions made by the AO are found justified, hence confirmed. This ground of appeal dismissed. 66. Being aggrieved by the order of the learned CIT(A), the assessee is in appeal before us. 67. The learned AR before us submitted that the deduction claimed under section 35D of the Act in the year under consideration amounting to ₹ 3,63,06,857/- relates to the expenses incurred in the earlier years which were admitted as deferred revenue expenses in the assessment framed under section 143(3) of the Act. Accordingly, the learned AR contended that the question of allowability of such expenses cannot arise in the year under consideration without disturbing the year in which such expenses were incurred by the assessee. 68. On the other hand the learned DR vehemently supported the order of the authorities below. 69. We have heard the rival contentions of both the parties and perused the materials available on record. From the preceding discussion we find that the genuineness of expenses incurred by the assessee in the earlier year which were treated as deferred revenue e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Assessee's appeal in ITA No. 2915/Ahd/2016 vide ground no-4 of assessee appeal. For detail discussion please refer the paragraph no. 50 of this order. Accordingly we hold that the same is not required to adjudicate separately again. Thus the ground of appeal of the Revenue is dismissed. 73. The second issue raised the Revenue is that the learned CIT(A) erred in restricting the addition upto 25% made on account of bogus purchased of ₹ 227,77,99,860/-. 74. At the outset we note that the issue raised by the Revenue has been decided along the Assessee appeal in ITA No. 2915/Ahd/2016 vide ground no-5 of assessee appeal. For detail discussion please refer the paragraph no. 53 of this order. Accordingly we dismiss the ground of appeal of the Revenue. 75. Issues raised in ground no 3, 4 and 5 by the revenue are of general nature. Hence the same are dismissed as infructuous. 75.1. In the result the Revenue's appeal is dismissed. Coming to ITA No. 319/Ahd/2018 of Assessee's appeal for A.Y. 2012-13 76. The assessee has raised the following grounds of appeal: 1. That the learned CIT(A) has erred in law and facts by confirming the addition of late payment of Emplo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... deleting the disallowance of ₹ 4,52,04,552/- made u/s. 14A r.w.r 8D by the Assessing Officer. 2.1 The Ld. CIT(A) has failed to appreciate that the onus lies on the assessee to demonstrate that it has interest free funds available with it for making such investment and not other way around. 2.2 The Ld. CIT(A) has failed to appreciate that as per Section 106 of Evidence Act, when any fact is especially within the knowledge of any person, the burden of providing the fact is upon him. 3. The appellant craves leave to amend or alter any ground or add a new ground, which may be necessary. 83. The first issue raised by the revenue is that the learned CIT(A) erred in deleting the disallowances of commission expenses ₹ 1,17,85,923/- under section 40(a)(i) of the Act. 84. At the outset we note that the similar ground raised by the assessee in ITA no. 2915/Ahd/2016 corresponding to A.Y. 2011-12 which is decided in favour of the assessee vide paragraph No. 37 to 38 of this order. For detail discussion, please refer the above mentioned paragraph. Accordingly we dismiss the ground of Revenue's appeal. 85. The second issue raised by the Revenue is that the learned CIT(A) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... For detailed discussion, please refer the above mentioned paragraph. Accordingly we allow the ground of the assessee here in this case also subject to verification. 92. The issues raised in ground 3 and 4 by the assessee in its appeal either are premature to decide or consequential. Therefore we dismiss the same. 93. In the result the appeal of the assessee is partly allowed. Coming to ITA No. 943/Ahd/2018 of Revenue's appeal for A.Y. 2013-14 94. The Revenue has raised following grounds of appeal: 1. The Ld. CIT(A) has erred in law and on facts in deleting the addition made on account of disallowance u/s. 40(a)(ia) of the Act for non deduction of tax on commission payable to foreign parties of ₹ 1,33,28,210/-. 2. The Ld. CIT(A) has erred in law and on facts in deleting the disallowance of ₹ 5,13,80,020/- made u/s. 14A r.w.r. 8D by the Assessing Officer. 2.1 The Ld. CIT(A) has failed to appreciate that the onus lies on the assessee to demonstrate that it had interest free funds available with it for making such investment and not other way around. 2.2 The Ld. CIT(A) has failed to appreciate that as per Section 106 of Evidence Act, when any fact is especi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng. 100. The first issue raised by the assessee is that the learned CIT(A) erred in upholding the addition made on account of late payment of EPF contribution for ₹ 52,93,615/-. 101. At the outset we note that the similar ground raised by the assessee in ITA no. 2915/Ahd/2016 corresponding to A.Y. 2011-12 which is decided against the assessee vide paragraph no 42 of this order. For detail discussion, please refer the above mentioned paragraph. Accordingly we dismiss the ground of the assessee's appeal. 102. The second issue raised by the assessee is that the learned CIT(A) erred in confirming the addition of ₹ 2,04,21,124/- on account claim made under section 35D of the Act. 103. At the outset we note that the similar ground raised by the assessee in ITA no. 2915/Ahd/2016 corresponding to A.Y. 2011-12 which is decided in favour of the assessee vide paragraph no. 69 of this order subject to verification. For the detailed discussion, please refer the above mentioned paragraph. Accordingly we allow the ground of the assessee's appeal subject to the verification. 104. The 3rd issue raised by the assessee is that the learned CIT(A) erred in upholding the additio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e the issue to the file of the AO for fresh adjudication. 111. On the other hand the learned DR raised no objection if the matter is set aside to the file of the AO for fresh adjudication as per the provisions of law. 112. We have heard the rival contentions of both the parties and perused the materials available on record. Admittedly, the onus lies upon the assessee to furnish the necessary details as desired by the AO during the assessment proceedings. However, in the case on hand, the revenue before rejecting the contention of the assessee should have verified the fact from the aforesaid parties whether they have paid any income to the assessee. It is for the reason that the form 26AS is generated by the income tax Department on the basis of information furnished in the TDS returns by various parties. Accordingly, in the interest of justice and fair play, we restore the issue to the file of the AO for fresh adjudication as per the provisions of law. It is also pertinent to note that the assessee shall cooperate in the assessment proceedings and it will be at liberty to file the necessary details in support of its contention. Hence the ground of appeal of the assessee is allowe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oming to ITA No. 1679/Ahd/2018, an appeal filed by the Assessee for A.Y. 2015-16 120. The assessee has raised following grounds of appeal: 1. That the learned Commissioner of Income Tax (Appeals) has erred in law and facts by confirming the addition of ₹ 36,629/- being the employee to ESI under section 36(1)(va) and therefore the learned AO should be directed to delete the said addition in full. 2. That the leaned Commissioner of Income Tax (Appeal) has erred in law and facts by disallowing claim under section 35D of ₹ 1,48,84,140/- and therefore the learned AO should be directed to allow the said claim while computing total income. 3. That the appellant craves liberty to add, amend, alter and delete any grounds of appeal before the final hearing. 121. The first issue raised by the assessee is that the learned CIT(A) erred in upholding the addition made by the AO on account of late payment of EPF contribution for ₹ 36,629/- only. 122. At the outset we note that the similar ground raised by the assessee in ITA No. 2915/Ahd/2016 corresponding to A.Y. 2011-12, which is decided against the assessee vide paragraph no. 42 of this order. For the detailed discuss ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
