9911796707
TMI Blog2013 (9) TMI 477X X X X Extracts X X X X X X X X Extracts X X X X ..... assessment was made under section 143(3) of the Income Tax Act on the basis of disclosed income as per books of accounts and details scrutiny and examination of books of accounts by the then assessing officer hence the said assessment is not liable for abatement under section 153A of the Income Tax Act. 3. That in any view of the matter assessment framed under section 153A(b) of the Income Tax Act dated 28.12.2011 based on only regular books of accounts which was examined earlier and not on any search material found in the course of search dated 27.08.2009 is wholly without jurisdiction and invalid hence two lower authorities were wrong/incorrect in making the addition/disallowance and confirming the same as per their own whim and wishes simply based on wrong inferences in respect of point in issue. 4. That in any view of the mater disallowance of Rs.84,277.00 made under the head loading and unloading expenses and such disallowance was made without considering the nature of business, need of such expenditure from the point of view of traders and his action as confirmed by the Commissioner of Income Tax (Appeals) is highly unjustified and specially when t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nbsp; 10. That in any view of the matter the addition of Rs.4,85,975.00 made by the Assessing Officer without considering the earlier assessment records for assessment year 1996-97 to 1999-2000 when an identical type of addition in the appellant's own case was made and finally deleted by the Hon'ble ITAT by order dated 21.07.2006 and the said decision is binding on the lower authorities but no cognizance was given hence the addition is unwarranted. 11. That in any view of the matter addition/disallowance was made and maintained by the two lower authorities ignoring the books entries, past record, need of business expenditure, nature of business and by giving weightage only to DVO's report without anything further to take addition and without rejecting the books hence the addition/disallowance made are unwarranted. 12. That in any view of the matter addition of Rs.40,500.00 which was the advance given to Mr. B. D. Pant and Sanjay Kesarwani employees of the firm and such amount was given from definite source hence the two lower authorities are wrong and incorrect in making and maintaining the addition. 13. That in any view of the matter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 07.07.2010. A notice under section 143(2) was issued on 19.10.2010. During the course of examination of books of account the A.O. noticed that bills and vouchers appertaining to loading and unloading expenses for Head Office and Branches were not supported by vouchers. Some of the vouchers were not produced before the A.O. The A.O., after considering he assessee's submission, observed that the assessee has enhanced its expenses to reduce tax liability. Therefore, the A.O. disallowed 20% of Rs.4,21,385/- being expenses claimed under loading and unloading and accordingly calculated amount of addition of Rs.84,277/-. The A.O. made the addition of Rs.84,277/- disallowing out of loading and unloading expenses. The CIT(A) confirmed the order of the A.O. after considering the assessee's submission and remand report of the A.O. observing as under :- (Page no.12, paragraph no.5.2) "I have gone through the order of the A.O., submission of the appellant and the remand report of the A.O. In the written submission, the appellant has emphasized the need of labourers for turning or shifting of the potato bags. I do not agree with the submission of the appellant that the A.O. did no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for the purpose of business. The A.O. did not find any contrary material to this fact. Once it is found that the expenditure has been laid out and expended wholly and exclusively for the purpose of business, we are of the considered view that such adhoc disallowance out of loading and unloading merely on the basis of presumption that the assessee has enhanced the expenses to reduce tax liability unless contrary material is available on record, such addition is not sustainable in law. We, therefore, delete the addition of Rs.84,277/- 6. The second effective ground is in respect of addition of Rs.47,260/- being 10% disallowance out of diesel expenses. This issue has been raised in ground nos.6 & 7 of ground of appeal. 7. The ld. Authorised Representative submitted that this issue is covered by the order of I.T.A.T., Allahabad Bench in assessee's own case in ITA No.440/Alld./2012 vide order dated 30.11.2012 wherein the I.T.A.T. has restricted the disallowance to the extent of 5%. The relevant finding of the I.T.A.T. is reproduced as below :- "16. On consideration of the rival submissions, we are of the view that the authorities below were justified in disallowing the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 19.10.2011, who had submitted the report on 09.12.2011. This report was confronted to the assessee and the assessee filed his objections in which one of the objections was that the report of the DVO is not independent and it was prepared after obtaining the details of yearwise investment in construction from the assessee. It was only the opinion of the AO and that the DVO inspected the property on 18.11.2011 whereas the construction fall in different assessments from 2004-05 to 2010-11. The AO, however, did not accept the contention of the assessee and the difference in the cost of construction / investment as noted by the DVO and disclosed by the assessee was considered as investment from undisclosed sources in a sum of Rs.5,47,928/- and addition was accordingly made. The ld. CIT(A) following his order for the assessment year 2005-06 confirmed the addition. The ld. Counsel for the assessee reiterated the submissions made before the authorities below and submitted that the assessee maintained proper books of account which have not been rejected and during the course of search, no incriminating material was found against the assessee. The AO did not reject the books of account of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... therefore, not justified in view of the judgments of Hon'ble Supreme Court and Rajasthan High Court referred to above. It, therefore, appears that the matter requires reconsideration at the level of the AO. We accordingly, set aside the orders of the authorities below on this issue and restore the matter to the file of the AO with direction to re-decide the issue by considering the books of account produced by the assessee. In the result, ground No. 20 & 21 of the appeal of the assessee, are allowed for statistical purposes." 12. Since the facts are identical, to maintain consistency, we follow the order of I.T.A.T. (supra) and in the light of that, we are sending back the issue to the file of A.O. with identical direction. 13. The fourth effective ground is in respect of addition of Rs.40,500/- on account of advance given to Shri B.D. Pant which has been raised in ground no.12 of grounds of appeal. During the assessment proceedings, while examining the seized documents, the A.O. noticed that in Annexure-A2/53 there were advance to Shri B.D. Pant and Shri Sanjay Kesarwani. The assessee was required to substantiate this advance with books of account. The assessee appeared before ..... 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