TMI Blog2017 (3) TMI 670X X X X Extracts X X X X X X X X Extracts X X X X ..... ue of assessee's appeal is allowed for statistical purposes. Addition being 5% of delivery charges made by the AO - Held that:- AO has made disallowance under the head delivery charges on adhoc basis. The AO has made adhoc deduction based on surmise and conjecture. The AO has failed to point out specific instances of the expenditure for which the bills were not produced. It is a matter of fact on record that the books of accounts as well as bills and vouchers were produced before the AO and, hence, he was not in a position to specifically point out the discrepancies, however, he has chosen to make disallowance on estimated basis. The AO cannot make the disallowance without giving opportunity to the assessee and without pointing out the specific amounts for which bills were not produced. In view of the above, we delete the addition made by Assessing Officer and confirmed by ld. CIT(A). - ITA No.2064/Kol/2016 - - - Dated:- 22-2-2017 - SHRI S.S.VISWANETHRA RAVI, JM AND DR. A.L.SAINI, AM For The Assessee by : Shri Miraj D Shah, Advocate For The Revenue by : None ORDER Per Dr. Arjun Lal Saini, AM: The captioned appeal filed by the assessee pertaining to t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ue date of filing of return of income. The Case laws cited were: Calcutta High Court in case of CIT v. Virgin Creations [IT Appeal No. 302 of 2011, dated 23-11-2011] has also expressed similar view. In this case assessee deducted tax at source from the paid charges between 1-4-2005 and 28-4-2006 and the same was deposited in July and August, 2006, i.e., well before the due date of filing of the return of income for the year under consideration. This factual position was undisputed. It was held that in view of the authoritative pronouncement of SC in case of Allied Motors (P.) Ltd. v. CIT [1997] 224 ITR 677/ 91Taxman 205 and also in the case CIT v. Alom Extrusions' Ltd. [2009] 319 ITR 306/ 185Taxman416 (SC) section 40(a)(ia) had to be given retrospective application. Similar view was held by the Hon'ble Karnataka High Court in the case of ITO Vs Anil Kumar Co. 31 Taxmann.com .370 (2013) and the Hon'ble Gujarat High Court in the case of CIT Vs Ashok J Patel (2014) 43 Taxmann.com 227 dated 02/12/2013. In addition, it was contended that in view of amendment made by Finance Act. 2010 which provided that if the TDS was deducted before the due date filing retur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e order passed was in violation of principals of natural justice hence is bad in law and be quashed. 3 For that in the facts and circumstances of the case the Ld. CIT Appeal erred in making addition of ₹ 5,65,097/- u/s 40a(ia) of the IT Act 1961. 4. For that in the facts and circumstances of the case the Ld. CIT Appeal erred in making addition of ₹ 40,060/- 5% of delivery charged expenses. The addition made is uncalled for, unjustified and unwarranted and hence the same be deleted. 5. For that the interest computed u/s 234B of the IT Act 1961 is over charged and wrongly calculated and or is not applicable to the assessee case hence the interest be deleted and or correctly computed. 6. For that the Ld. CIT Appeal did not grant proper credit for pre paid taxes the Ld. CIT Appeal be directed to allow the same as per law. 7. The appellant craves leave to press new, additional grounds of appeal or modify, withdraw any of the above grounds at the time of hearing of the appeal. 5.1 Although, in this appeal the assessee has raised multiple grounds of appeal, but at the time of hearing, the main grievance of the assessee has been confirmed to g ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... have included the income in their respective returns and also paid taxes on the same. The assessee will provide the details of recipients i.e. their assessment particulars etc. to the AO so that the AO can verify. In case the recipient parties are not cooperating in providing details, the AO can call for the information u/s. 133(6) of the Act for verification of the same. Accordingly, this issue is remitted back to the file of AO to decide in terms of the above directions. This issue of assessee's appeal is allowed for statistical purposes. The ld AR for the assesse submitted that in the assessee`s case under consideration, the recipient of the income had paid the taxes on behalf of the assesse (Deeuctee) and this aspect had not been verified by the Assessing Officer, during the assessment proceedings, therefore, he requested the Bench to send the matter back to the file of the Assessing Officer to verify the same. 5.4. Ld. DR for the revenue has also primarily relied on the findings of the AO which we have already noted in our earlier para and is not being repeated for the sake of brevity. 5.5. Having heard the rival submissions, perused the material on record, we ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the heads 'travelling conveyance', 'telephone' and 'fooding charges' respectively on the sole ground that all bills were not produced by the assessee. The ld. C.L T.(A) deleted the additions by observing as under:- 9. I have considered the submission of the appellant and perused the assessment order. The A O. has made disallowances under the head travelling and conveyance, telephone expenses and fooding charges for the reason that all the bills were not produced. However, the AO. has failed to point out specific instances of the expenditure under these heads for which the bills were not produced. It is a matter of fact on record that the books of accounts as well as bills and vouchers were produced before the A O. and hence he was in a position to specifically point out the discrepancy. However, he has chosen to make disallowances on estimated basis. I intend to agree with the appellant that the disallowances for the reason all bills were not produced could not be made without giving opportunity to the appellant and without pointing out the specific amounts for which bills were not produced. In view of the above, the A O. is directed to delete the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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