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TMI Blog2022 (11) TMI 887X X X X Extracts X X X X X X X X Extracts X X X X ..... f Rs. 6,52,296=00 in respect of difference in the account of M/s. Ambica Construction and erred in not properly appreciating the explanation and submission of the appellant. 3. The ld. Commissioner of Income Tax (Appeals) - XX, Ahmedabad has erred in law and on facts in confirming the addition of Rs. 1,15,714=00 for non deduction or TDS from payment made to transporters and erred in not properly appreciating the explanation and submission of the appellant. 4) The learned CIT (A) has erred in law and on facts of the case in initiating penalty proceedings u/s. 271(1)(c) of the Act." 3. The assessee has taken primarily three grounds of appeal, which shall be taken up individually in the succeeding paragraphs. Ground number 1: Disallowance of depreciation of Rs. 11,39,632/- 4. The brief facts in relation to this ground of appeal are that during the course of assessment proceedings, the AO observed that certain assets (vehicles) were purchased on which assessee had to claim depreciation which were not held in the name of the assessee company. Accordingly, the AO disallowed the depreciation claimed by the assessee on such assets on the basis that the assessee company could not sub ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nance expenses and diesel,. petrol expenses have been submitted alongwith the respective ledger account copies to verify the contention of the appellant. Whether those vehicles have been utilized for the purpose of business of the appellant company has also not been -proved. Further, verification about the possession of those vehicles under the appellant in absence of any details and supporting evidences remained unverifiable. Therefore, the case laws relied upon by the appellant are also not applicable over the facts of the case as those were specific to the vehicle in the.name of the directors but in our case it is not so. Therefore the AO's action for making the disallowance of the insurance expenses and depreciation is correct and justified and the ground of the appellant is dismissed." 6. Before us, the counsel for the assessee submitted that the CIT failed to appreciate the fact that the vehicles were used wholly and exclusively for the purpose of assessee's business and the assessee company had dominion over the vehicle. He further submitted that the assets were purchased in the name of the Directors of the assessee company and it is a well-settled law that in the case ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f these person with assessee company. In view of the above facts, we are hereby restoring the file to the Ld. CIT(Appeals) to verify whether the firstly, assets (vehicles) have been acquired out of funds of the assessee company, secondly, whether Shri Rajeev Agarwal, Jugal Kishore Agrawal, Anil Kumar Agarwal & Sanjay Agrawal are the Directors of the assessee company. In case, the assessee is able substantiate the above two aspects, Ld. CIT(Appeals) may allow the appeal of the assessee in light of several Rulings highlighted above. 8. In the result, Grounds No.1 of the assessee's Appeal is allowed for statistical purposes. Ground number 2: Unreconciled creditor Rs. 6,52,296/- 9. The brief facts in relation to this ground of appeal are that the AO observed that in case of one creditor M/s Ambika Construction, the total credit amount as per the assessee's books of accounts was Rs. 96,31,203/- whereas the amount confirmed by the creditor in response to notice under section 133(6) of the Act was Rs. 89, 78, 907/- only. The assessee submitted that TDS was deducted on the total amount of Rs. 96,31,203/- and payment was made through cheque. Further the creditor had claimed TDS credit of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sequently credit amounts in aforesaid parties ledger accounts. The difference claimed to be on account of TDS which was only of Rs. 98,273/- is not the sole reason for the huge sum of difference as worked out by the A.O. The appellant has not explained that why the cash payment of Rs.25,000/- and Rs.4,75,749/- have not been debited by M/s. Ambica Construction in appellant's ledger account in the year under consideration. Why the amount of Rs.4,75,749/- has been debited in next year has not been explained. When the appellant has credited this amount in the year under consideration. Therefore, appellant's contention is not verifiable and supported with the details submitted. Hence, the addition made by the A.O. is justified and same is confirmed." 11. Before us, the counsel for the assessee reiterated the submissions made before the AO and Ld. CIT(Appeals) to the effect that the difference is on account of accounting mistake made on the part of the creditor. The difference is owing to the fact that they have shown the receipt in the next year. The counsel for the assessee submitted that the creditor is the subcontractor of the assessee and he should have booked the income in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Form 3CD filed by the assessee along with the return of income, the assessee has not deducted TDS on certain expenses claimed under the head repairs and maintenance of Rs. 1,39,800 and Rs. 66,000/-on advertisement expenses which are otherwise subject to TDS. Accordingly, the AO made disallowance of Rs. 205,800/- u/s 40(a)(ia) of the Act of the Act. Further, the AO observed that the assessee incurred carting expense amounting to Rs. 1,15,714/- on which no TDS was deducted and therefore the assessing officer also disallowed the above payments u/s 40(a)(ia) of the Act of the Act. 16. In appeal, Ld. CIT(Appeals) dismissed the assessee's appeal on the ground that the assessee has not been able to give any explanation for non- deduction of TDS and no details of expenses were submitted by the assessee during the course of appellate proceedings. 17. The assessee is in appeal before us against the aforesaid addition Rs. 1,15,714/- confirmed by Ld. CIT(Appeals) towards carting expenses. Before us, the counsel for the assessee submitted that admittedly that no TDS has been deducted on the aforesaid payment. Further, no additional supporting documents have also been furnished to the effe ..... X X X X Extracts X X X X X X X X Extracts X X X X
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