TMI Blog2018 (1) TMI 851X X X X Extracts X X X X X X X X Extracts X X X X ..... of appeal in favour of the assessee. Disallowance being 1/5th of car maintenance expenses and depreciation on motor car - CIT(A) has held that in his opinion personal use of car cannot be ruled out - Held that:- In the absence of any evidence, ld. CIT should not have given such findings. On the basis of whims no disallowance can be made. Therefore, we allow this ground of appeal in favour of the assessee. Addition of conveyance allowance u/s.10(14) ignoring 1/5th of car expenses and depreciation is concerned - Held that:- AO no other withdrawal for expenses were made by the appellant. As per the AO since the appellant has not incurred any amount of conveyance allowance and therefore he was requested to explain as to why the claim of deduction of ₹ 52,000/- be not disallowed. Ld. CIT(A) confirmed the action of the AO and disallowed the conveyance of allowance of ₹ 52,000/-. The appellant in his submission himself submitted that above allowance is being received from company every month as part of remuneration and hence the same partakes the character of special allowance contemplated in section 10(14) of the act. However, the appellant has not been able to prove th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... /s.251(2) for enhancing the assessment particularly when the orders of the ITAT, passed in favour of the assessee, were before him for A.Y. 2001-02 and 1999-2000 and the basis of enhancement was CIT's order for A.Y. 1999- 2000 hence such notice is illegally issued and deserves to be quashed. 3. The Ld. C1T (A) has grievously erred in law and facts by issuing the notice u/s.251(2) after a lapse of 15 years from the F.Y. Particularly when such assessment cannot be reopened u/s.147 as well as looking to the appeal filed by the assessee long back in F.Y. 2005-06 and hence after a lapse of such a long period the issuance of notice u/s.251(2) is absolutely illegal void ab-initio and as such the same deserves to be quashed. 4. In the facts and circumstances of the appellant's case, the Ld. CIT (Appeals) has erred in law in treating the Agricultural Income of the Appellant as income from other sources by enhancing the same u/s.251(2) which is bad in law against the provision of the act and hence the Ld. CIT (A) acted illegally and thus the additions and enhancement made deserves to be deleted. More particularly when orders of Hon'ble I.T.A.T for A.Y. 2001-02 and 199 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... This truck was inadvertently capitalized in the final accounts of the Appellant by his Accountant and the CIT (A) has confirmed this disallowance on the only ground that the appellant had not shown that truck as his Asset though this expenditure was claimed by the appellant as revenue expenditure. 12. The Ld.CIT(A) has further erred in confirming the addition of ₹ 52,000/- which has made by the A.O. by disallowing the claim u/s.10(40) of the Act. More particularly when 175th of Car Expenses and Car depreciation were disallowed by him. 13. The Ld. CIT (Appeals) erred in law and on facts in confirming the action of the Assessing Officer in initiating the penalty proceedings u/s.271(1)(c) of the I.T. Act, 1961 vide para 12.5 of the appellate order, for the alleged default of furnishing inaccurate particulars of income and also concealment of the particulars of such income, more particularly when such finding cannot be given unless the concealment order is passed u/s.271(1)(c), hence he has acted against his jurisdiction and thus the finding given should be directed to be withdrawn. 14. The Ld. CIT(A) erred in law and on facts in observing in the body of the app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... CIT(A) has deleted/varied some of these additions/disallowances as well as enhanced the taxable income of the assessee by ₹ 56,49,542/- treating agriculture income as income from other sources. This was done by making additions of the above amount of ₹ 56,49,542/- treating it to be income from other sources out of total agriculture income of ₹ 70,80,134/- thus he has confirmed the disallowance of ₹ 6,33,592/- of Potato sales added by the Ld. A.O. and allow ₹ 8,00,000/- only as agriculture income on estimate basis thus enhanced the income by the said amount of ₹ 56,49,542/- and in respect of those additions which have not been deleted/reduced by the CIT(A), and the income enhanced by him under the head income from other sources the appellant has preferred this second appeal, being aggrieved by the order dated 3-8- 2012 passed by the CIT(A)-IV, Baroda in this case. The additions or disallowances by the A.O. as well as enhancement made by the Ld. C1T(A). 4. We have gone through the relevant record and impugned order. So far as notice issued after gap of 15 years from filing of return and 11 years after order u/s.143(3) is concerned. In income tax ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ppellant on account of sale of potato seeds has already been treated as income from other sources as discussed in earlier. Therefore there remains only an amount of ₹ 64,49,542/-. Out of the said amount ld. CIT(A) remaining amount of ₹ 56,49,542/- was treated as income from undisclosed sources for the year under consideration. As appellant has failed to produce the relevant record and books of accounts and has also failed to furnish documentary evidence in support of his claim of agricultural income of ₹ 56,49,542/-. 8. Ld. AR cited an order of co-ordinate bench in ITA No.354/Ahd/2008 for Asst. Year 2001-02. In this order, Hon ble Bench mentioned here as under: The agriculture income declared by the assessee in the preceding years, which are listed below, have been accepted by the AO in the scrutiny assessment. Rs.11,40,022 in A.Y. 1993-94 Rs.25,70,952 in A.Y. 1994-95 Rs.46,57,100 in A.Y. 1995-96 Rs.77,94,368 in A.Y. 1996-97 Rs.81,03,045 in A.Y. 1997-98 Rs.84,65,643 in A.Y. 1998-99 Rs.84,34,198 in A.Y. 1999-2000 The Ld. CIT(A) has also noticed that the AO has not offered opportunity to cross examine the employees, o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed in this regard, it was mentioned that the appellant himself has capitalized the amount of ₹ 52,200/- on account of tyre purchased. Further, it is not seen from the record that the appellant had made any claim before the AO that this amount of ₹ 52,200/- be allowed as revenue expenditure. The appellant has not filed relevant part of return of income, wherein he has made claim of above amount as revenue expenditure. Even this issue has not been discussed by the AO in the assessment order. In our considered opinion the plea of the appellant is not acceptable. Therefore, this ground of appeal is dismissed. 16. So far as ground related to confirming addition of conveyance allowance of ₹ 52,000/- u/s.10(14) ignoring 1/5th of car expenses and depreciation is concerned. On perusal of the assessment record, it is seen that appellant has received salary and conveyance allowance of ₹ 3000/- and ₹ 4,000/- per month from M/s. VPPL Pvt. Ltd. As per the AO the appellant had enclosed certificates along with return of income. In the said certificate, the appellant had mentioned that the amount of conveyance allowance has been utilized by him for various works suc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ut he did not furnish the details and reasons for such claim. Since appellant has failed to furnish the details and reason from such claim during the course of assessment proceedings as well as before the CIT(A). Therefore, we dismiss this ground of appeal. 22. So far as ground related to adding a sum of ₹ 15,410/- in respect of insurance claim is concerned. In this regard, AO in the assessment order for the year under consideration had mentioned that the appellant had received ₹ 15,410/- as insurance premium and had shown in other income. As per the AO in the revised return of income, the appellant had claimed the same as deduction and had not furnished any reason from the same. In our opinion insurance claim is revenue receipts and lower authority has rightly confirmed the addition of ₹ 15,410/-. Therefore, this ground of appeal is dismissed. 23. So far as ground related to confirming of disallowance of ₹ 25,240/- and ₹ 33,303/- being 1/5th of Car maintenance expenses and depreciation on the Motor Car are concerned. In ITA No.2405/AHD/2012, we have already allowed this ground. Therefore, this ground of appeal is also allowed. 24. So far as c ..... X X X X Extracts X X X X X X X X Extracts X X X X
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