TMI Blog2009 (2) TMI 515X X X X Extracts X X X X X X X X Extracts X X X X ..... staining addition of Rs. 5,36,905 on account of alleged defects in the accounts of the assessee. 2. We have heard the parties. Brief facts of the case are that the assessee is a transporter. During the year on receipts of Rs. 2,68,45,250 before allowing the depreciation NP rate has been shown at 20.19 per cent. It is less as compared to NP rate of 25.64 per cent on receipts of Rs. 1,99,85,734 in the immediate preceding year. The Assessing Officer has pointed out following defects : ( i )No log books for plying of trucks have been maintained. ( ii )No record in respect of truck wise receipts of freights were maintained. ( iii )Truckwise onward journey and freight received on return journey have not been maintained. ( iv )Certain expenses were not vouched which includes: truck operating expenses of Rs. 11,25,003, general expenses of Rs. 56,578, repair and maintenance expenses of Rs. 14,13,460, labour expenses of Rs. 4,49,774 and diesel expenses of Rs. 1,29,13,815. All these expenses were partly vouched only. The Assessing Officer, therefore, applied provisions of section 145(3) after issuing show-cause notice and relying decision of Hon ble Allahabad High Court reporte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... riod of investment in land. 4. After perusal of the facts, we find that since the trading addition has already been deleted hereinbefore, therefore, Ground No. 2 of the revenue does not survive and the same is deleted. Thus Ground No. 2 of the revenue is deleted. Ground No. 2 of CO of the assessee : That the ld. CIT(A) has erred in law and on facts in sustaining an addition of Rs. 82,377 being the account of income shown as received as discounts, in addition to the estimated income by treating the same as income over and above business income. 5. The brief facts of the case are that the assessee has declared the discount income of Rs. 82,377 on the purchases of vehicles/repairs of vehicles which has been argued to be in nature of Business Income and no separate addition was required to be made and the same should be treated as part of Business Income of the assessee. The ld. CIT(A) confirmed the action of the Assessing Officer without accepting the explanation given. 6. We have heard the rival contentions and perused the facts of the case. The discount received is certainly the Business Income of the assessee which has already been accounted for in the books of acco ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ve been relied upon to claim that the profit in terms of section 50C has not been taxed in the hands of the seller then on a corroborative reading of a totality of the material on record there cannot be a unilateral payment and earning out of the assessee himself even by virtue of the invoking of deeming provisions. The purchase has been duly answered by the assessee on dated 20-11-2007 before the Assessing Officer along with the details thereto appearing at page 4 in the forum written reply. Having considered the written submission and the contention of the departmental representative wherein the strong reliance has been placed on the order dated 26-12-2007, 22-8-2008 to contend that the addition deserves to be maintained and the orders need to be upheld in the interest of justice. 8. We have considered the contention of the parties and the facts, evidences and the material on record where by the addition has been sustained by placing the reliance on the provisions of section 69B of the Act whereby the relevant provisions are extracted hereinbelow to deal with the controversy at : "Where in any financial year the assessee has made investments or is found to be the owner of a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... enalize the assessee for transferring his capital asset for a consideration lesser by 15 per cent or more than the fair market value and that would constitute unreasonable restriction on the fundamental right of the assessee to dispose of his capital asset at the price of his choice. The court must obviously prefer a construction which renders the statutory provision constitutionally valid rather than that which makes it void. We must, therefore, hold that sub-section (2) of section 50 can be invoked only where the consideration for the transfer has been understated by the assessee or, in other words, the consideration actually received by the assessee is more than what is declared or disclosed by him and the burden of proving such an understatement or concealment is on the revenue. This burden may be discharged by the revenue by establishing facts and circumstances from which a reasonable inference can be drawn that the assessee has not correctly declared or disclosed the consideration received by him and there is an understatement or concealment of the consideration in respect of the transfer. The reliance placed by on the judgment of the Hon ble jurisdictional High Court is misp ..... X X X X Extracts X X X X X X X X Extracts X X X X
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