TMI Blog2015 (8) TMI 875X X X X Extracts X X X X X X X X Extracts X X X X ..... (A) deleted the addition - Held that:- Out of the total sundry creditors aggregating to ₹ 2,19,93,756/-, the Assessing Officer has made the addition of ₹ 6,50,000/- as the assessee neither produced the creditors nor gave any detail s in regard to suppliers. Merely submitting the bills in support of purchases cannot be the basis for deleting the addition unless the genuineness of purchases was duly established. Ld. CIT(Appeals) has merely deleted the addition on the ground that identity had not ultimately been doubted by the Assessing Officer. However, when confirmation was not filed by the creditors, then proper course was to give one more opportunity to the assessee to establish the genuineness of creditors. Therefore, we set aside the order of ld. CIT(Appeals) on this ground and restore the matter back to the file of Assessing Officer for verification.- Decided in favour of revenue for statistical purposes. Disallowance on account of payment of EPF after the due date - CIT(A) deleted the addition - Held that:- CIT(Appeals) deleted the addition by following the decision of Vinay Cement Limited reported in (2007 (3) TMI 346 - Supreme Court of India) wherein it has be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 8377; 6,50,000/-; (3) Disallowed on account of payment of EPF Rs.1,30,526/-; (4) Disallowance on account of unverifiable Dumper and vehicl e hire charges ₹ 4,17,512/-; (5) Disallowance on account of assessee s claim for various expenses ₹ 5,00,000/- Being aggrieved against the order of Assessing Officer, the assessee was in appeal before the ld. CIT(Appeals). The assessee s appeal was allowed by the ld. CIT(Appeals). 3. Against the order of ld. CIT(Appeal s), the Department is in appeal before the Tribunal by taking the following effective grounds of appeal :- 1. That the ld. CIT(A), Asansol has erred in law and on facts by allowing the relief of ₹ 35,13,409/- disallowed by the AO on account of higher rate of depreciation claimed by the assessee. 2. That the ld. CIT(A), Asansol has erred in law and on facts by allowing the relief of ₹ 6,50,000/-, disallowed by the AO on account of unexplained cash credit. (3) That the ld. CIT(A), Asansol has erred in law and on facts by allowing the relief of ₹ 1,30,000/- disallowed by the AO on account of payment of EPF after the due date. (4) That the ld. CIT(A), Asansol has erred in l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot giving the dumpers on hire because it was raising gross bills. 7. We have considered the submissions of both the parties and have perused the records of the case. As per New Appendix 1 under Rule 5 of the Income Tax (Appellate) Rules, 1962 dealing with rates at which depreciation is admissible:- III. Machinery and Plant : (2) Motor cars, other than those used in a business of running them on hire, acquired or put to use on or after the 1s t day of April, 1990. The Assessing Officer concluded that when the dumpers are given on hire, the assessee would be entitled for depreciation at the rate of 30%. However, that is not the correct interpretation of the law, because if the assessee is transporting the goods of other persons, then al so the dumper is given on hire and under such circumstances, in view of the dec ision of the Hon ble Madhya Pradesh High Court in the case of Anup Chand Co. reported in 239 ITR 466 the assessee was entitled for higher rate of depreciation as the vehicles are to be considered as being given on hire for transportation of goods of other persons. The assessee was not transporting its own goods but the goods of other persons and deriving hire ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pliers. Merely submi tting the bills in support of purchases cannot be the basis for deleting the addition unless the genuineness of purchases was duly established. Ld. CIT(Appeals) has merely deleted the addition on the ground that identi ty had not ultimately been doubted by the Assessing Officer. However, when confirmation was not filed by the c reditors, then proper course was to give one more opportunity to the assessee to establish the genuineness of creditors. Therefore, we set aside the order of ld. CIT(Appeals) on this ground and restore the matter back to the file of Assessing Officer for verification. 11. Brief fact s apropos Ground No. 3 are that the Assessing Officer noticed that the assessee debited the payment of EPF amounting to ₹ 1,30,526/- after the due date. He, therefore, made the addition. In appeal, Ld. CIT(Appeals) deleted the addition by following the decision of the Hon ble Supreme Court in the case of Vinay Cement Limited reported in (2009) 313 ITR (St.) 1, wherein i t has been held that statutory items like PF and ESI if paid before the due date of filing of the return have to be allowed irrespective of the fact whether the contributions related ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssing Officer, the disallowance could not be made. 13. We have considered the rival submissions and carefully perused the material available on record. In this case, the Assessing Officer has computed the disallowance by applying the ratio of expenses claimed in different years without pointing out even on a single i tem, which was not verifiable. We, therefore, do not find any reason to interfere with the order of ld. CIT(Appeals). Hence, Ground No. 4 of Revenue s appeal is dismissed. 14. We observe that the Ground No. 5 contains a typographical error in regard to the amount therein because the ground raised relates to disallowance of ₹ 5,00,000/- which was deleted by the ld. CIT(Appeals) and not ₹ 4,17,512/-. We, therefore, modify this ground as under:- (5) That the ld. CIT(A), Asansol has erred in law and on facts by allowing the relief of ₹ 5,00,000/-, disallowed by the AO on account of excessive expenses claimed. 15. Brief fact s apropos Ground no. 5 are that the Assessing officer made a disallowance of ₹ 5,00,000/- of various exspenses claimed by the assessee on the ground that gross receipts had dec reased by 41.38%, but there was increa ..... X X X X Extracts X X X X X X X X Extracts X X X X
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