9911796707
TMI Blog2015 (12) TMI 454X X X X Extracts X X X X X X X X Extracts X X X X ..... stified in not accepting the additional evidence file before him and the reasons given in the order for not accepting the additional evidence are incorrect. 3. That in any view of the matter assessment as framed by the assessing officer as per order dated 23.11.2007 in the status of A.O.P. and his action as confirmed by the Commissioner of Income Tax (Appeals) is highly unjustified. 4. That in any view of the matter appellant is a firm supported by a partnership document which was executed in time and the requirements of section 184(2) were complied hence the two lower authorities were wrong in adopting the status A.O.P. and also wrong in disallowing salary and interest paid to partners. 5. That in any view of the matter the correct s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2. The ground Nos. 1,2,3,4,5 & 6 relate to only issue of making the assessment of the assessee under the status of the AOP, not as firm. 3. Brief facts of the case are that; the assessee submitted income tax return on 31st October, 2005 on an income of Rs. 1170/-. The assessee enclosed audited balance sheet alongwith the return. The AO treated the assessee as AOP as the no partnership deed was filed alongwith the return. The assessee went in appeal before the ld. CIT(A), the assessee submitted the application under Rule 46A for admission of additional evidence and also enclosed the copy of the partnership deed. The ld. CIT(A) did not accept the additional evidence and confirm the order of the AO, assessing the assessee as AOP. 4. I hear ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ware of about the relevant provision that the copy of the partnership deed has to be enclosed alongwith the income tax return or the copy thereof has to be filed before the Assessing Officer. 6. I noted that in this case the assessee has given the Vakalatnama in favour of Shri Ravi Kumar Rastogi, advocate and therefore, it is the duty of the advocate to guide the assessee and to file the copy of the partnership deed, for inaction of the advocate the assessee firm should not be penalized Hon'ble Supreme Court in the case of Moti Lal Padampat Sugar Mills Co. Ltd. Vs. State of Uttar Pradesh and Ors. 118 ITR 326 at page 330 held as under: "(ii) There is no presumption that every person knows the law. It is often said that everyone is presumed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stion has arisen whether the audit report can be filed subsequently or has to be filed alongwith return if the assessee claims deduction u/s 80I. The relevant provision of section 80IA(7) which also used the similar language requiring the copy of the audit report, is laid down as under for ready reference: "The deduction] under sub-section (1) from profits and gains derived from an [undertaking] shall not be admissible unless the accounts of the [undertaking] for the previous year relevant to the assessment year for which the deduction is claimed have been audited by an accountant, as defined in the Explanation below sub-section (2) of section 288, and the assessee furnishes, along with his return of income, the report of such audit in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot mandatory and is only directory as the similar language has been used u/s 80IA(7). I set aside the order of the ld. CIT(A) on this issue and held that the assessee be assessed as 'firm' not as 'AOP'. Thus the ground No. 1 to 5 are allowed. 12. The ground Nos. 6, 7 & 8 relate to the disallowance of remuneration and interest to the partners in accordance with the partnership deed. After hearing the rival submissions, and going through the order of the tax authorities below. I noted that the remuneration and interest to the partner was disallowed by the AO as the assessee has been assessed as AOP not as a firm. Since while disposing off the ground No. 1 to 5, I have already held that the assessee be assessed in the status of the firm. I ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assessee, therefore, no comparative instance in the case of the assessee as earning of the profit as a subcontractor is available on record. The assessee has returned the income at Rs. 1170/- naturally the balance of the receipts has been claimed by the assessee as an expenditure the onus is on the assessee to prove that he has incurred the expenses. It is an undisputed fact that the assessee failed to produce the bills and vouchers to prove the genuinity of the expenses although the assessee has produced the books of account. This is also the fact that in the case of sub-contractor the margin of the profit is less as the margin in respect of contractor is being shared between the main contractor and the sub-contractor. The assessee has su ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
