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TMI Blog2023 (7) TMI 792X X X X Extracts X X X X X X X X Extracts X X X X ..... ls) has erred in confirming the addition of Rs.1,80,000/- made by the Assessing Officer u/s.24 of the I.T. Act,1961. 4. The learned Commissioner of Income Tax (Appeals) has erred in confirming the disallowance to the extent of Rs. 1250/-out of donation expenses. 5. The learned Commissioner of Income Tax (Appeals) has erred in confirming the addition on account of interest expenses of Rs.1,87,418/- made by the Assessing Officer on the basis of AIR. 6. The Appellant prays that the delay in filing of appeal may kindly be condoned. 7. The appellant craves leave to add, alter, amend or modify any of the grounds of appeal on or before the date of hearing of appeal." Assessment year 2011-12 "1. The learned Commissioner of Income Tax (Appeals) has erred in passing an Ex-Parte order without giving reasonable opportunity of being heard to the Appellant hence the same being against the principles of natural justice and law requires to be cancelled. 2. The learned Commissioner of Income Tax (Appeals) has erred in passing ex-parte order without rejecting the adjournment applications filed by the Appellant. 3. The learned Commissioner of Income Tax (Appeals) has erred in passing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... before ITAT. The relevant extracts of the application for condonation of delay are beautiful reference: "2. It is hereby submitted that both the working partners of the firm namely Devchandbhai Laljibhai Thakkar and Kalpeshbhai D. Thakkar were suffering from cancer and were temporarily indisposed and even not attending business. The event of ill health occurred during the course of appellate proceedings in the case of Shri Devchandbhai L. Thakkar. The cancer came to be detected in the month of February 2015. The copy of colonoscopy report dated 21.02.2015 issued by Mehta Hospital has also been furnished. He was detected with cancer of intestine and due to medical facilities in Radhanpur not being of adequate standards he was shifted to Apollo Hospital, Ahmedabad. He underway a cancer surgery on 01.03.2015 and he was ultimately given a discharge on 14.03.2015. However, there was continuous medical follow up and other subsequent action which had to be undertaken post surgery. In the mean time Shri Kalpesh D. Thakkar, son and other working partner was also detected with cancer which came to be confirmed in the report dated 14.04.2015, the copy of which has been separately furnished. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the assessee. While making the addition, Ld. CIT(Appeals) observed as under: "On careful consideration of the entire facts, 1 find that the appellant in the case Heenaben Rameshkumar from whom Rs. 10 lac was obtained had submitted that her source of income was stitching and embroidery work. However no supporting evidence for income earned have given. Copy of P &. L account furnished is not supported by any evidence and income as per P & L account is Rs. l,53,465 (3,945/- Interest income + 79,180/- embroidery income +70,340 income). It is also that she could not even though furnish copy of her bank statement and balance sheet so the above loan transaction for verification. The observation made by the AO that Heenaben seems to be doing the work to supplement the family income and not the capacity to make advance of Rs. 10 lac. The evidences furnished by the appellant does not prove the creditworthiness of Smt. Heenaben to advance loan of Rs.10 lac. Therefore, the claim of the appellant is hereby rejected. With to Smt. Daxaben Bharatkumar Thakkar, who had advanced Rs.6 lac, it is noticed that she is not filing her return of income, It is that Smt. Daxaben is also having her sour ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lso rejected. To sum up, it is held that appellant could not prove the creditworthiness and capacity of the persons who are claimed to have advanced loan to the appellant. Even these persons are not assessed to tax, though some of them are PAN owners. No books of account, statements or source of income could prove that these parties had sufficient funds for huge advances made to the appellant. No proper books of accounts are maintained by these persons. In such circumstances, the claim made by the appellant cannot be allowed without furnishing proper evidences which are verifiable. Therefore, the disallowance made by the AO of Rs. 37,50,000/- is held justified and is confirmed. The relevant ground of appeal is rejected." 5. On going to the facts of the instant case, we observe that the assessee has not been able to furnish any plausible explanation to establish the creditworthiness and the genuineness of the parties. Accordingly, in our considered view, looking into the facts of the instant case, Ld. CIT(Appeals) has not erred in facts and in law in confirming the aforesaid addition in the hands of the assessee. 6. In the result, ground number 1 of the assessee's appeal is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he facts of the case, we observe that the assessee had made interest payment to several parties without deduction of tax at source. Before Ld. CIT(Appeals), the assessee made no specific arguments to controvert the findings made by the assessing officer and gave no specifics explanation for non-deduction of tax at source. Accordingly, we are of the considered view that Ld. CIT(Appeals) has not erred in facts and in law in confirming the disallowance made by the assessing officer on account of non-deduction of tax on interest payments by the assessee. 10. In the result, ground number 2 of the assessee's appeal is dismissed. Ground number 3: Ld.CIT(Appeals) erred in confirming addition of Rs. 1,80,000/- under section 24 of the Act 11. The brief facts in relation to this ground of appeal are that during the course of assessment, the assessing officer observed that the assessee had shown receipts of Rs. 6 lakhs from Tata Projects Ltd. under the head "income from house property" and deduction under section 24 of the Act was claimed by the assessee amounting to Rs. 180,000/-. However, on further verification of TDS details, the AO observed that the payments received from Tata Proj ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lear cut finding given by the AO on the of documentary evidences; which the appellant has not been able to controvert with documentary evidences, the action of the AO in making the disallowance of Rs.1,80,000/- is held justified and is hereby confirmed. The relevant ground of appeal is therefore, rejected." 13. On going to the facts of the case and the material on record, we observe that Ld. CIT(Appeals) has correctly observed that the assessing officer, on the basis of documentary evidences had confirmed the aforesaid additions. Further even before the Ld. CIT(Appeals) in appellate proceedings, the assessee has not been able to counter with documentary evidences, the action of the AO in making the disallowance of Rs. 1,80,000/-. Accordingly, looking into the facts of the case, we are of the considered view that Ld. CIT(Appeals) has not erred in facts and in law in confirming the aforesaid addition. 14. In the result, ground number 3 of the assessee's appeal is dismissed. Ground number 4: Ld. CIT(Appeals) erred in confirming Rs. 1250/- on account of donation expenses 15. The brief facts in relation to this ground of appeal are that during the course of assessment, the asses ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t. Appellant in the remand report has reported that appellant had not submitted any details in respect of the on account on interest income of Rs.1,87,814/-. From the facts of the case, it is dear that appellant though was given opportunity to produce evidences in respect of the claim of interest income, it failed to produce any evidences before the AO. No claim can be allowed without producing documentary evidences. Since appellant has not produced any evidences in spite of giving opportunities, the claim cannot be allowed and the disallowance of Rs.1,87,814/- is hereby confirmed. The relevant ground of appeal is rejected." 19. On going to the facts of the instant case and the observations made by Ld. CIT(Appeals) in the appellate order, we are of the considered view that Ld. CIT(Appeals) has not erred in facts and in law in confirming the addition, looking into the facts of the instant case. 20. In the result, ground number 5 of the assessee's appeal is dismissed. 21. In the result, all Grounds of Appeal of the assessee are dismissed for assessment year 2010-11. Now we shall take up assessee's appeal for assessment year 2011-12 22. Ground numbers 1 to 3 of the assess ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n of tax at source on payments made towards job work expenses. Accordingly, the Ld. Assessing Officer made the above disallowance in the hands of the assessee. 28. In appeal, Ld. CIT(Appeals) observed that the assessee did not file any details/give any submission with respect to non-deduction of tax at source, with respect to job work expenses. 29. Looking into the facts of the instant case and the observations made by CIT in the appellate order, we are of the considered view that Ld. CIT(Appeals) has not erred in facts and in law in confirming the aforesaid disallowance in absence of any explanation/documentary evidence having been submitted by the assessee during the course of assessment proceedings or in appellate proceedings before Ld. CIT(Appeals). 30. In the result, ground number 5 of the assessee's appeal is dismissed. Ground number 6: Ld. CIT(Appeals) erred in confirming disallowance of Rs. 6, 55, 960/-under section 40A(3) of the Act 31. The brief facts in relation to this ground of appeal are that during the course of assessment, the assessing officer observed that the assessee had made payments of Rs. 6,35,960/- on account of job work expenses in cash, in contrav ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 37. On going to the facts of the case and the observations made by the CIT in the appellate order, we are of the considered view that Ld. CIT(Appeals) has not erred in facts and in law in confirming the above addition in absence of any documentary evidences having been furnished by the assessee either during the course of assessment order during the course of appellate proceedings before Ld. CIT(Appeals) with respect to the aforesaid donation. 38. In the result, ground number 7 of the assessee's appeal is dismissed. Ground number 8-12 39. The brief facts in relation to the above additions are that the assessee incurred several expenses like telephone expenses, travelling expenses, vehicle expenses, petrol and diesel expenses and depreciation expenses etc. During the course of assessment, the assessing officer made disallowance to the extent of 10% with respect to the aforesaid expenses on account of personal use, since despite having been provided adequate opportunities, the assessee failed to produce any documentary evidence is in respect of the aforesaid expenses. 40. The aforesaid additions were confirmed by the Ld. CIT(Appeals) in appellate proceedings on the ground ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ture on motorcar is to be treated as personal in nature in the hands of the appellant i.e., the partner of the said firm. According to us, it is a case that the motorcars owned by the appellant and used for the business of the firm in which he is a partner have also partially been used for personal purpose, when an addition has been made on this ground in the hands of the firm. With this view, we hold that it would be reasonable to disallow 1/5th of the depreciation on the motorcars owned by the assessee in respect of which depreciation has been claimed and which have been used by the firm in which the appellant is a partner. For this position, there is a specific provision under section 38(2), as per which when an asset is not exclusively used for the purpose of business, the Assessing Officer shall restrict the claim for depreciation to a fair proportion of the purpose for which the asset is used for the purpose of business or profession. Assessing Officer in the assessment of the firm having held that 1/5th as the estimated proportion in respect of which the motorcars are not used exclusively for the purpose of business of the firm, following the same, we direct that 4/5ths of t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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