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TMI Blog2013 (6) TMI 355X X X X Extracts X X X X X X X X Extracts X X X X ..... tedated as such is non-est in the eye of law and that the finding of the Ld. CIT(A) that "the appellant could not produced any evidence in support of the contention that order was antedated as on 31.12.2010" is nothing but evasive one to cover up the illegal action of the AO, as such the order of the forums below are not sustainable in the eyes of law. 3. For that, the appellant's accounts having been certified by the Auditor on verification of cash book, ledger, bills and vouchers etc. meeting to the provision of the Act, the Ld. AO having accepted the same and having not taken confirmation from the appellant that, it would not submit the bills and vouchers, his high pitched order of assessment only with the observation that 'not production of bills and vouchers in respect of excess claim .......' And '...... the assessee submitted manipulated cash book which is not supported by bills and vouchers' is out and out false and fabricated as the appellant has in possession all bills and vouchers which it could not be able to submit because of the ulterior motive of the AO in not intimating it as to which vouchers he intends to verify, even though he had with him 23 days left for the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Books of Accounts having been accepted to the extent of specific disallowances to the heads of expenditures without being rejected and complete reliance to the impounding documents having not been made for the purpose of assessment, the addition of Rs.99,70,327/- makes the order incoherent and self contradictory. iii) Addition of Rs.99,70,327/- basing on impounded documents is otherwise illegal and arbitrary in view of the fact that, the scrutiny assessment for the assessment year 2006-07 and 2007-08, during which the appellant had gross receipt from the very same contractee under the very same contract were completed accepting books of accounts with specific disallowances to some of the heads of expenditures, thereby effectively determining profit rate @ 20 to 25% as against profit rate of 83% if Rs.99,70,327/- is added with the admitted rate of profit of the appellant. 7. For that the forums below committed grave illegalities in making an addition of Rs.23,04,000/- u/s. 69C of the Act insofar as the amount of interest and salary paid to the partners were rightly reflected in the partner's capital account, amounts so paid were well within the provision of the Act and the partn ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... used is 'made' in section 153 shows that the assessment order should be made on or before the said date. It does not mean that it should be served. On this ground itself as we find that the decision of the Coordinate Bench has erroneously laid down the law on this issue if the word 'made' is given the meaning served then the section itself would become unworkable and it would make all assessment orders made on the last day illegal. In the circumstances, respectfully following the principles and the ratio laid down by the Hon'ble Madras High Court in the case of CIT Vs. Hi-Tech Arai Ltd. (2010) 321 ITR 477, we differ from the decision taken by the Coordinate Bench in the case of Durga Condev Pvt. Ltd. (supra) as also the decision of Shanti Lal Godawat & Ors. Vs. ACIT (2009) 126 TTJ (Jodh) 135. Here, we may specifically mention that in the case of Durga Condev Pvt. Ltd. (supra), though one of us is co signatory in that order still we differ from the said order as there is no bravery in perpetuating an error in law. The fact that the assessment order is dated 31.12.2010 and there is no evidence available to show that this order was not passed on 31.12.2010 makes this order sustainabl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the assessee as and when the vouchers were made available by the partners and the key employees. It was the further submission that the AO had also disallowed the payments made to the partners on the ground that during the course of survey one of the partners had made a statement that he has paid salary of Rs. 1 lakh per month whereas the total payments to the partners under various heads being interest on capital, remuneration and the share of profits far exceeded the said Rs. 1 lakh per month. It was the submission that the partner when he gave the statement misunderstood that as to what was the drawing per month. It was the submission that the partners drawings were in the range of Rs.1 lakh per month or less. It was the submission that as the actual payments to the partners were allowable under the provisions of section 40(b) of the Act there is no disallowance on account of the same was liable to be made. 8. In reply, the Ld. DR vehemently supported the orders of lower authorities. 9. We have considered the rival submissions. A perusal of the assessment order shows that in respect of the difference between the rough cash book and the ledger, the AO has been repeatedly cl ..... X X X X Extracts X X X X X X X X Extracts X X X X
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