TMI Blog2015 (9) TMI 18X X X X Extracts X X X X X X X X Extracts X X X X ..... stigation from the side of seller of plot, from Shri Ramesh Sharma purchaser of plot, actual possession of plot etc. The Assessing Officer is directed to take final decision on the basis of enquiry and evidences. Accordingly, this ground of appeal is set aside for de novo. The Assessing Officer is directed to give sufficient time to the assessee before deciding this issue.- Decided partly in favour of assessee for statistical purposes. Addition on account of 1/3rd disallowance out of taxi running expenses - Held that:- The assessee had shown total tour and travel receipt at ₹ 1,59,454/- against which he claimed expenses at ₹ 37,540/-. The assessee had not produced any evidence before the Assessing Officer as well as CIT(A) in support of expenses. However, without expenses, the income cannot be earned. The expenses claimed on diesel, petrol, salary of driver can be collected by the appellant but this business is totally unorganized. Therefore, we confirm addition at ₹ 5,000/- in place of disallowance made by the Assessing Officer at ₹ 11,893/- in the interest of justice. - Decided partly in favour of assessee. - ITA No. 330/JP/2013 - - - Dated:- 11-8-201 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s as in last year s, income from other sources and income from interest on bank deposits. The ld Assessing Officer issued detailed questionnaire to the assessee in 04/2/2009. During the course of assessment proceedings, it was noticed by the Assessing Officer that the assessee had paid only amounting ₹ 1,01,000/- (in cash) on 24/04/2007 for purchase of plot 168, Shyampuri, Kalwad Road, Jaipur from Shri Murlidhar Purohit while sale consideration of ₹ 16,00,000/- . The assessee was asked to file confirmation and also produced Shri Murlidhar Purohit for verification and genuineness of this transaction. The assessee had failed to file confirmation and it was not possible to purchase this property by just giving amount of ₹ 1,01,000/- only and seller had not demanded balance of ₹ 14,99,000/- till date and the property had been shown stock of the assessee. In absence of any corroboration from the assessee, the balance amount of ₹ 14,99,000/- was treated paid outside the undisclosed income of the assessee. Therefore, he made addition of ₹ 14,99,000/- U/s 68B of the Act. 3. Being aggrieved by the order of the Assessing Officer, the assessee carried th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t and preponderance of probabilities. He relied on the following case laws:- i) Indian and Eastern News Paper Society Vs. CIT (1979) 119 ITR 996 (SC). ii) Dhakeshwari Cotton Mills Ltd. Vs. CIT (1954) 26 ITR 775 (SC). iii) Chuharmal Vs. CIT (1988) 172 ITR 250 (SC) iv) Dinssaw Barabshaw Shroff Vs CIT (1943) 11 ITR 172 (Bombay). The essence of above mentioned judgments was that the proceedings for assessment for the Assessing Officer under the IT Act are of quasi judicial nature in character and admissibility of documents, evidence or material differs mainly in IT proceedings vis a vis Tribunal proceedings. Subsequently, this property was purchased by the third party. There was a clause in the agreement to sell dated 24/4/2007 that the second party i.e. the appellant could have got the sale deed executed in favour of any other party and in view of such specific provisions, there can be strong belief that subsequent registration of the plot in the name of any third party by the seller may have been at the instance of the appellant himself. During the appellate proceedings, the appellant filed affidavit from Shri Murlidhar Purohit dated 2/5/2011 wherein it has been mentio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er executing the agreement to sale deed in respect of said plot i.e. 168 Shyampuri Kalwad Road, Jaipur on 24/4/2007, a feud had erupted between the seller Shri Murlidhar Purohit and the appellant. The agreement to sell made on 24/4/2007 could not be materialized instead of selling the plot to the appellant. The seller had sold the plot directly to a third party Shri Ramesh Sharma of Merta City on 20/10/2008 for forfeiting ₹ 1,01,000/- paid by the appellant as advance to the seller. At the time of assessment proceedings in 2009, the appellant was not on talking terms with the seller due to feud over non-return of the advance money of ₹ 1,01,000/-. The advance money has not been paid back till date. However, at the time of appeal proceedings in 2011, the appellant had pursued the seller through a middleman to give an affidavit to this effect after great persuasion. After the lapse of one and half years, the appeal proceedings were resumed in November, 2012. Meanwhile the seller had expired leaving behind nobody. The appellant filed copy of sale deed dated 20/10/2008 before the ld CIT(A) which supports the assessee s claim that sale deed had directly made sale to this plot ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed with incriminating documents seized and he admitted carrying on this business. These accounts had been complied on by after the search was conducted. Further no purchase bills had been produced of vehicles purchased and claimed used by the assessee in this year. The assessee had not produced bills/vouchers in respect of direct petrol expenses as well as repair and maintenance of vehicle expenses claimed. There is also no evidence to prove that the vehicle claimed to be running on hire as a taxi was actually in the business as no details like rate per km, total kilometer area covered and log book etc. in absence of which the declared profit was not acceptable. The assessee had claimed travelling expenses at ₹ 35,680/- for which no details had been filed nor any vouchers produced for verification and hence these expenses were not verifiable. The personal element of expenses under this head cannot be ruled out. Therefore, 1/3rd expenses at ₹ 11,983/- was disallowed by the ld Assessing Officer. 8. In first appeal, the ld CIT(A) was confirmed the addition by observing as under:- I have carefully considered the submissions of the appellant as also the findings of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in which it has been held that the assessment made earlier and disallowance made and accepted by the assessee can be agitated in case the same additions are made when fresh assessment U/s 153A is made. The above facts will indicate that the issue under consideration before the Hon ble ITAT was totally different. In view of these facts I am of the considered view that the assessee has failed to properly substantiate the claim of whole expenses of ₹ 35680/- and therefore disallowance 1/3rd of such expenses amounting to ₹ 11893/- was reasoned, fair and well justified. The addition made by the A.O. is accordingly confirmed. 9. Now the assessee is in appeal before us. The ld AR of the assessee submitted that the ld Assessing Officer has not brought on record nothing specific while making disallowance, which is deserved to be deleted on the basis of past history of the case. He further argued that in past, the ld Assessing Officer disallowed these expenses 1/3rd, however, the ld CIT(A) had confirmed 20% disallowances. Whereas the Hon ble ITAT has confirmed these additions to a token amount i.e. ₹ 3,000/- to ₹ 4,000/-. 10. At the outset, the ld DR has veh ..... X X X X Extracts X X X X X X X X Extracts X X X X
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