TMI Blog2017 (4) TMI 170X X X X Extracts X X X X X X X X Extracts X X X X ..... of this section. Taking into consideration all these aspects, we are of the view that end of justice would meet if the expenditure out of land development could be estimated at 10% for disallowance. - Decided partly in favour of assessee - ITA.No.3089/Ahd/2013 and ITA.No.3122/Ahd/2013 - - - Dated:- 23-2-2017 - SHRI RAJPAL YADAV, JUDICIAL MEMBER AND SHRI AMARJIT SINGH, ACCOUNTANT MEMBER For The Assessee : ShriHardikVora, AR For The Revenue : Shri Om PrakashMeena, Sr.DR ORDER PER BENCH: The assessee and revenue are in cross appeal against the order of CIT(A)-II, Surat, dated 10/10/2013 passed for the Asstt. Year 2009-10. 2. The grievance of the revenue is that ld.CIT(A) has erred in deleting the addition of ₹ 13,00,000/- which was added by the AO with the aid of Section 68 of the Income Tax, Act, 1961. 3. With the assistance of ld. Representatives we have gone through the record. We find that the appeal of the Revenue was presented on 30/12/2013. On 10.12.2015 the CBDT has issued Instructions bearing No. 21/2015 prohibiting its subordinate authorities from filing of the appeal to the Tribunal against the order of the CIT(A) where the tax effec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 25% of the total expenditure by making following observations. 9.8 ssue of Unverifiable Unconfirmed Expenditures: Hence, it is settled as per discussion above that the expenditures shown by the assessee verifiable and unsubstantiated and have not been cross-confirmed properly. Even during the entire assessment proceedings, the assessee has failed to furnish the proper address of the parties and the IT returns. Also that, the burden rested on assesseto prove and establish that the expenditure has been actually incurred and laid out 'wholly exclusively for the purpose of business and some business related services have obtained in return. However, the assessee has failed to perform the onus cast under section 37 of the I.T. Act and has attempted to shift the onus to Revenue . Such an action is not sustainable. In suchg a scenario it is logical to hold that the assesse must have made Land development expenditures in open Labour market for benefits like better control, greater bargaining power etc., timely completion of works etc and other causes best known to the assesse and not disclosed before Revenue. This reasoning is akin to and in consonance to the logic appl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uce the details of its purchases but submitted the quantitative details of sales exhibiting the sales made by it. Tribunal found that without making purchase, finished product could not be produced by the assessee and therefore assessee might have indulge in procuring raw material from X and procuring the bills from Y, under these circumstances 25% of the total purchase were disallowed. The nature of business and the facts are altogether different in present case. 7. On the other hand ld.DR relied upon the order of CIT(A) 8. We have considered rival submissions and gone through the record. Section 145 of the Income Tax Act is the relevant provision for this issue, therefore, it is pertinent to take note of this section. It reads as under : 145. (1) Income chargeable under the head Profits and gains of business or profession or Income from other sources shall, subject to the provisions of sub-section (2), be computed in accordance with either cash or mercantile system of accounting regularly employed by the assessee. (2) The Central Government may notify in the Official Gazette from time to time [accounting standards] to be followed by any class of assessees or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... comply with all the terms of a notice issued under subsection (1) of section 142 [or fails to comply with a direction issued under sub-section (2A) of that section], or (c) having made a return, fails to comply with all the terms of a notice issued under sub-section (2) of section 143, the [Assessing] Officer, after taking into account all relevant material which the [Assessing] Officer has gathered, [shall, after giving the assessee an opportunity of being heard, make the assessment] of the total income or loss to the best of his judgment and determine the sum payable by the assessee [* * *] on the basis of such assessment : [Provided that such opportunity shall be given by the Assessing Officer by serving a notice calling upon the assessee to show cause, on a date and time to be specified in the notice, why the assessment should not be completed to the best of his judgment : Provided further that it shall not be necessary to give such opportunity in a case where a notice under sub-section (1) of section 142 has been issued prior to the making of an assessment under this section.] [(2) The provisions of this section as they stood immediately before th ..... 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