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M/s. Solanki Jewellers Versus The Dy. Commissioner of Income Tax, Central Circle – 2 (1) , Pune

2016 (12) TMI 107 - ITAT PUNE

Disallowance of remuneration computed appellant u/s 40(b) - Held that:- The assessee during the course of survey is to be assessed as ‘business income’ and the assessee is entitled to the claim of remuneration as interest in capital under the provisions of section 40(b) of the Act on such additional income. The Assessing Officer is directed to re-compute the income in the hands of assessee. Hence, the grounds of appeal and additional ground of appeal raised are decided in favour of assessee. - I .....

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ainst the Order of CIT(Appeals)-12 passed by him on 10/02/2015 & received by the appellant on 12/03/2015. Due to reasons beyond his control the appeal order remained to be handed over to the tax consultant for filing appeal against the same before the ITAT. An affidavit executed by the appellant giving the reasons for delay is enclosed herewith. The appellant prays that the delay in filing the appeal be condoned & be admitted & adjudicated. 2. On facts and circumstances prevailing in .....

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onal ground of appeal which reads as under:- On facts and circumstances prevailing in the case and as per provisions of law it be held that the disallowance made of remuneration computed appellant u/s 40(b) of the Act should have been allowed in full. It further be held that the allowance made by the AO is not as per the provisions of the Act. Just and proper relief may be granted to the appellant in this respect. 4. The present appeal is filed after delay of 354 days. The partner of assessee fi .....

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as handed over to one of my employees Mr. Raju Mohanlal Jain for the purpose of handing over the same to my Chartered Accountant for filing appeal against the said order. I proceeded to the USA to visit my daughter thereafter & returned back within months time. When I returned back to India, my employee Mr. Raji Mohanlal Jain had proceeded to his native place as he had certain person family problems & he did not return back for months together. Finally he left the job & returned back .....

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amp; concluded on 31/03/2016. The delay in filing the appeal before the ITAT is due to aforesaid reason which was beyond my control & is unintentional. It is prayed that the delay in filing the appeal may kindly be condoned. Whatever stated above is true to the best of my knowledge and belief. Place: Pune Date: 26/04/2016 Sd/- Pravin Solanki (Affiant) 5. The learned Authorized Representative for the assessee furnished tabulated details of reasons for delay in filing the appeal late which are .....

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his daughter on 21/04/2015. A copy of passport stamping is enclosed herewith. 5. Mr Praveen Solanki returned back to India on 10/05/2015. 6. Mr Praveen Solanki was under the impression that Mr Rajesh must have forwarded the order to the Chartered Accountant and further action must have been taken by him. 7. Mr Rajesh had been to his native place due to some personal problems from 30/06/2015 to 14/07/2015. Thereafter he left the job since 16/09/2015. A copy of muster roll has been enclosed herew .....

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he learned Authorized Representative for the assessee pointed out that the delay in filing of appeal late was beyond the control of assessee because of the aforesaid reasons and hence, the same may be condoned. He also pointed out that the additional ground of appeal which was purely legal in nature and the same merits to be adjudicated. He further stated that the said legal ground of appeal was raised in the case of sister concern M/s. Surekh Jewellers Vs. DCIT in ITA No.18/PN/201 6, relating t .....

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clared by the assessee during the course of survey. This is the ground of appeal No.2 raised by the assessee. The second issue raised by way of additional ground of appeal is against the disallowance made of remuneration under section 40(b) of the Act. 9. The first ground of appeal raised by the assessee is against condonation of delay in filing the appeal late before the Tribunal. The assessee has explained the reasons for said delay which have been reproduced in the paras hereinabove. Further, .....

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coming to the ground of appeal No.2 raised by the assessee against the assessability of additional income declared during the course of survey at ₹ 35,25,387/- and consequent allowance of partners remuneration under section 50B of the Act, the issue which is raised by way of additional ground of appeal, the issue is squarely covered by the order of Tribunal in M/s. Surekh Jewellers Vs. DCIT (supra). The Tribunal vide para 13 has held as under:- 13. I have considered the rival arguments mad .....

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hile crediting the amount of additional income to the profit and loss account, however, has claimed remuneration to partners and interest on capital and thereby declared the net income of ₹ 34,70,590/- which is less than the additional income of ₹ 41 lakhs declared during the course of survey. I find the AO held that the amount of ₹ 41 lakhs declared during the course of survey is to be treated as deemed income u/s.69B of the I.T. Act and the assessee is not entitled to any rem .....

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