TMI Blog2008 (2) TMI 885X X X X Extracts X X X X X X X X Extracts X X X X ..... been rightly accepted by the Commissioner of Income-tax (Appeals). The Assessing Officer without giving any finding on the issue has merely gone on the presumption that the books of account have been manipulated. The Assessing Officer has also not given a finding that the sum in question was actually revenue expenditure which were claimed as deduction in profit and loss account. Therefore, the Tribunal has rightly concluded that the payment in question were made on account of capital account, therefore, provisions of section 40A(3) of the Act were not attracted. Thus, we do not find any merit in this appeal and no substantial question of law arises for determination of this Court. Hence this appeal is dismissed. - <!--[if gte mso ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has filed the present appeal under section 260A of the Income-tax Act (for short the Act ) against the order dated 22-12-2006 passed by the Income-tax Appellate Tribunal, Delhi Bench E , New Delhi in ITA No. 5496/Delhi/04 for the assessment year 1990-91, raising the following substantial questions of law for consideration of this Court :- (a )Whether on the facts and in the circumstances of the case, the Hon ble ITAT was right in law in deleting the disallowance of ₹ 19,31,000 made by the Assessing Officer under section 40A(3) of Income-tax Act, 1961 particularly in view of the fact that Auditor had himself pointed out in Tax Audit Report filed with the return that assessee had made cash payments of ₹ 19.71 lakhs in cont ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for fresh adjudication. 3. On such remand by the Tribunal the Assessing Officer again took up the issue of disallowance under section 40A(3) of the Act for consideration. The assessee explained in the remand proceedings that the cash payments were made to the parties in question in respect of amounts standing as due and payable to them towards advances and that none of these payments was on account of revenue expenditure debited in the Profit and Loss account. The assessee also explained that the recipients of these payments had to make payment of dues to the Government like excise duty, sales tax and payment to workers. The necessary copies of the accounts of the recipient companies and the books of account of the assessee were produce ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... been able to show that the payments were indeed on account of any expenditure. The onus was entirely on the Assessing Officer to bring concrete evidence on record to clearly show that the payments were indeed for an expenditure incurred by the assessee in relation to the three different concerns. By simply referring to the cuttings and over-writings the Assessing Officer has not been able to prove that these payments were not in the nature of loans and advances but were for expenditure. It was on the Assessing Officer to establish that,- (a )the entries originally made in the books and vouchers were relating to payment on account of expenditure covered under section 40A(3) (b )and then these entries were cut, erased over wri ..... X X X X Extracts X X X X X X X X Extracts X X X X
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