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TMI Blog2019 (2) TMI 2095X X X X Extracts X X X X X X X X Extracts X X X X ..... Officer with a direction to decide the issue afresh in the light of various decisions cited above. Needless to say, the Assessing Officer shall give due opportunity of being heard to the assessee and decide the issue as per fact and law. We hold and direct accordingly. The first issue raised by the assessee in the grounds of appeal is accordingly allowed for statistical purposes. Addition u/s 68 - partner introduced the money in the firm - assessee has not furnished any cash flow statement to establish the withdrawal and the deposit of cash during the course of appeal proceedings - Addition n the hands of the partnership firm stating that there is no exigency for introduction of such loan in the shape of cash - HELD THAT:- Although the assessee has not explained such business exigency, however, it is a fact that there are withdrawals from the bank account of the partner apart from his declaration of income u/s 44AD of the IT Act. The Revenue has not proved that the Partner after withdrawal of the money from the bank has utilized the money otherwise than for investing in the partnership firm. There is nothing on record to show that the partner has utilized the money for acquisition ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed and observed that the assessee is not doing business of motor buses, motor lorries, motor taxies used in a business of running them on hire. He, therefore, was of the opinion that in view of the provisions of section 32(2) of the IT Act, the assessee is entitled to depreciation @ 15% which is applicable to plant & machinery. He, therefore, confronted the same to the assessee. The assessee replied that most of the plant &machinery are Dumper, Hyva, Excavator, JCB and commercial vehicles and has worked for triple shifts. Relying on various decisions, it was argued that the assessee is entitled to depreciation @30%. 4. However, the Assessing Officer was not satisfied with the explanation given by the assessee. He observed that certain vehicles are light commercial vehicles, namely, Bolero, car, jeep, Maruti Swift Dezire, Safari and Scorpio, etc., which are not used for carrying any material. They are used for the personal transportation of the staff and partners of the firm. By changing the name and nomenclature of these vehicles the assessee cannot claim higher depreciation. He, therefore, allowed depreciation on these vehicles at 15% as against 30% claimed by the assessee. Simil ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and law. We hold and direct accordingly. The first issue raised by the assessee in the grounds of appeal is accordingly allowed for statistical purposes. 8. The second issue raised by the assessee in the grounds of appeal is regarding the addition of Rs.41 lakhs made by the Assessing Officer u/s 68 of the IT Act which has been upheld by the CIT(A). 9. The facts of the case, in brief, are that the Assessing Officer, during the course of assessment proceedings observed that the assessee has raised unsecured loans amounting to Rs.58,20,000/- from the following persons/concerns:- (i) M/s Astha Minerals, Prop. Shri P.K. Wadhwa (ii) Shri A.K. Garg (iii) Smt. Krishna Wati (iv) Shri P.K. Wadhwa (v) M/s Ram Babu Delhi Stone Suppliers, Prop. Shri P.K. Wadhwa (vi) Shri V.K. Pathak 10. From the various details furnished by the assessee, the Assessing Officer noted that the unsecured loans in the case of Shri A.K. Garg and Smt. Krishna Wati are old loans. He, therefore, accepted the same as genuine. However, he observed that the assessee has received an amount of Rs.19,50,000/- from M/s Astha Minerals out of which an amount of Rs.16 lakhs is shown to have been received in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... actors i.As loan from Aastha Minerals ii.As Partner's Loan 16,00,000.00 25,00,000.00 b) Cash Deposit to Allahabad Bank Account No. 20478788485 2,00,000.00 c) Other transactions, Cheques deposit & Cheques withdrawn in Allahabad Bank Account 1,49,571.00 Total Outflows 44,49,571.00 Closing Balances : Cash in Hand 2,01,240.00 Cash in Bank 1,05.494.68 3,06,734.68 13. Referring to the following decisions, he submitted that in case of a partnership firm, once a partner has accepted that he has advanced certain sums to the firm, no addition in the hands of the firm can be made and investment can be examined in the hands of the partner u/s 69, etc.:- i) Punjab & Haryana High Court in 208 CTR 459, 224 ITR 180; ii) Madras High Court in Taj Browellers 291 ITR 232; iii)Hon'ble Supreme Court in Lovely Exports; and iv) Allahabad High Court in 141 ITR 706. 14. He accordingly submitted that addition, if any, can be made in the hands of the partner and not in the hands of the partnership firm. However, since the partner has sufficient means to extent the cash loan, therefore, no addition could have been made and, therefore, the order of the CIT(A) be set aside ..... X X X X Extracts X X X X X X X X Extracts X X X X
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