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TMI Blog2023 (12) TMI 921X X X X Extracts X X X X X X X X Extracts X X X X ..... 4. That the learned CIT(A) has therefore not complied with the provision of section 251 of the Income Tax Act ,1961 and the issue be decided in favour of the appellant on the facts and circumstances in confirmily with the squarely applicable facts as rendered in the case of Raj Dadarkar & Associates VS. ACIT (2017) 81 taxman.com 193(SC). 5. That the Id. CIT(A) has erred in holding the sum of Rs. 16,84,235/- to be disallowed us 40(a) (ia) patently wrong on assumptions & presumptions without pointing out contradiction in the submission of the appellant assessee before it. The "cost of sales" cannot be covered by the provision of section 194C(6) & 194C(7) as erroneously discovered by him. There was no contract to be filled by applying the provision of section 194C at all. The same be directed to be deleted. 6. That the learned CIT(A) has erred in holding the expenditure incurred on foreign travel by the employees and partners for non-business purpose by disallowing the claim of Rs. 7,34,657/- is patently incorrect as the assessee is an exporter and had to travel abroad for exhibiting the products exported where orders are received for conducting the business of the assessee in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... income from business or profession and also directed to grant deprecation on the building. 6. Therefore we are unable to see any valid reason to interfere with the findings recorded by the ld. CIT(A) on this issue based on order of Tribunal in assessee's own appeals for AY 2008-09 & 2009-10 (supra). Accordingly grounds no. 2 to 4 of assessee are dismissed. Ground no. 5 of the assessee 7. Apropos ground no 5 the ld. counsel submitted that the Id. CIT(A) has erred in holding the sum of Rs. 16,84,235/- to be disallowed us 40(a)(ia) patently wrong on assumptions & presumptions without pointing out contradiction in the submission of the appellant assessee before it. The "cost of sales" cannot be covered by the provision of section 194C(6) & 194C(7) as erroneously discovered by him. There was no contract to be filled by applying the provision of section 194C at all. The ld. counsel vehemently pointed out that all the payments are reimbursement made this is also evident from page no 35 of assessee paper book and thus there was no TDS liability on the assessee. The same be directed to be deleted. 8. He further submitted that the authorities below alleged that the recipient are big tr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Vs. Ansal Land Mark Township (1) Pvt. Ltd., in ITA No.160/2015 Judgment dated 26.8.2015 has taken the view that the insertion of the second proviso to Sec.40(a)(ia) of the Act is retrospective and will apply from 1.4.2005. Once it is held that the Assessee is entitled to the benefit of 2nd proviso to Sec.40(a)(ia) of the Act, the CIT(A) ought to have directed the AO to verify whether the recipients have included the receipts paid by the assessee in their respective returns of income and also paid taxes on the same. To the extent the recipients from the Assessee have so included the sum in their returns of income and filed the same, no disallowance u/s.40(a)(ia) of the Act ought to have been sustained by the CIT(A). The CIT(A) ought to have also directed the AO that in case the recipient parties are not cooperating in providing details, the AO should call for the information u/s. 133(6) or 131 of the Act, for verification of the same. We therefore set aside the order of the CIT(A) to the extent to which he had sustained the order of the AO on the disallowance u/s.40(a)(ia) of the Act and remand the issue to the file of the AO to verify whether the recipients have included the receip ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e expenses mentioned by the AO pertain to the purchase of foreign currency and air tickets for Sh. Manmohan Gaind who is the CEO of the firm. It is further stated that Sh. Arjun Gaind had also accompanied the CEO on the instructions of the partner. It is observed that Arjun Gaind is son of Manmohan Gaind (CEO) and Ms. Mridula Gaind, partner of the firm. From the details furnished by the AR, it is observed that the partner and CEO of the appellant firm who happen to be husband & wife went to Europe with their son. The AR has furnished the copies of vouchers in respect of booking of tickets etc. However, the AR has failed to prove the business expediency of the above trip to Europe. This primary onus has not been discharged by the appellant either at the time of the assessment or during the course of appellate proceedings. The appellant has failed to prove that these expenses identified by the AO have been incurred wholly and exclusively for the purposes of the business. Accordingly, I am of the opinion that the AO has rightly disallowed these expenses and therefore, the addition made by the AO is confirmed and the ground of appeal is dismissed. 16. On thoughtful consideration of f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of donor with computation. He further submitted that there is no confirmation from the contributing partner despite several opportunities therefore the addition was rightly made and upheld by the ld CIT(A). 19. On careful consideration of above submissions, first of all, we note that undisputedly the assessee firm received capital contribution of Rs. 67,45,000/- from Shri Dinesh Kumar Gaind during the relevant period. From the order of ITAT Delhi Bench in the case of Alliance Engineers and Construction vs. ACIT (supra) para 17 is relevant to note that wherein the Tribunal held that when a partner introduces the money/capital in the firm either in the shape of capital or loan to the partnership firm, addition, if any, can be made only in the hands of partner and not in the hands of partnership firm as long as the partner confirms to have invested towards capital or as loan to the firm. In the present case the assessee has filed documents at pages 2 to 35 of assessee paper book but we are unable to see any confirmation from the contributing partner Shri Dinesh Kumar Gaind confirming the capital contribution to the firm. The Assessing Officer and the ld. CIT(A) has noted detailed fin ..... 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