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TMI Blog2018 (6) TMI 1392X X X X Extracts X X X X X X X X Extracts X X X X ..... o failure on the part of the appellant. 3. That the Learned CIT(A) and Assessing Officer have failed to appreciate that appellant is a firm carrying on the profession for the last several years and it is evidenced by Deed of Partnership, copy of which was filed during the course of assessment & appellate proceedings and original deed was produced before the Assessing Officer and CIT (A) for verification. 4. That the learned CIT(A) and Assessing Officer have erred both in law and on facts in adopting the 'status' of the appellant, while framing the assessment as that of A.O.P. instead of 'Firm'. 5. That having regard to the fact and circumstances of the case, the Ld.CIT(A) has erred in confirming the addition of Rs. 175492/- made by learned Assessing Officer on account of vehicle maintenance expenses 6. That the orders passed by learned CIT(A) and Assessing Officer are totally against the principles of natural justice. 7. That the appellant pray for leave to add, alter, amend or delete above ground of appeal either before or at the time of hearing. 2. Briefly stated facts of the case are that the assessee firm was engaged in professional consultancy and for the year ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d by the Assessing Officer. * The question of dispute is whether a. Certified copy was produced during assessment or not b. Whether the original partnership deed was produced for verification of the Assessing Officer or not * The claim of the Assessing Officer in the assessment order is that the copy submitted by the assessee firm was without any certification and the deed was not witnessed by any person. * Original partnership deed was not produced during assessment * The appellant has relied upon his letter No.632 dated 06.03.2014 as evidence of his claim that the original partnership deed was produced and letter dated 30th January, 2014 and 3rd March, 2014 stating that the certified true copy of partnership deed was filed. 5.8 To verify the true fact the assessment records was perused. 1) The copy of deed produced at the time of assessment was enclosed as annexure to letter dated 30.01.2014 and 03.03.2014. It is apparent from the perusal of the copy filed by the appellant firm that the * Copy of partnership deed filed by the assessee firm at the time of assessment has not been certified as true copy by the partners. * The copy of the deed is not wit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n no deduction by way of payment of interest, salary, bonus, commission or remuneration made by the firm to any partner of such firm shall be allowed". The section 184 of the Act requires that a certified copy of the instrument of the partnership should be accompanied along with the return of income of the firm, whenever assessment of the firm is sought for first time. How the certified copy shall be filed has been explained in Explanation below to subsection (2), which is reproduced as under: "Assessment as a firm. 184. (1) .......................................... (2) ................................................ Explanation.-For the purposes of this sub-section, the copy of the instrument of partnership shall be certified in writing by all the partners (not being minors) or, where the return is made after the dissolution of the firm, by all persons (not being minors) who were partners in the firm immediately before its dissolution and by the legal representative of any such partner who is deceased." 4.5 Further, it is specified in subsection (4) of the section 184 that in case of any change in the Constitution of the firm, a certified copy of the revised instrum ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... exists, but the assessee is required to make compliance of section 184(2) of the Act by way of filing a copy of the partnership deed duly certified in writing by all the partners. When the original copy is available with the assessee, we do not find any difficulty in filing copy of the said partnership deed duly certified by all the partners, as long as the original deed is genuine. In the facts and circumstances, we feel it appropriate to restore this issue to the file of the Assessing Officer, with a direction to the assessee to comply with the provisions of section 184(2) of the Act and submit a copy of the relevant partnership deed duly certified by the then partners in writing before the Assessing Officer, who then may verify the genuineness of the same and decide the issue in dispute in accordance with law. It is needless to mention that the assessee shall be afforded adequate opportunity of being heard. The ground of the appeal is accordingly allowed for statistical purposes. 5. The ground No. 2 of the appeal relates to disallowance of Rs. 1,75,492/- on account of vehicle maintenance expenses. The Assessing Officer observed that the assessee debited vehicle maintenance exp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ses have been rightly disallowed by the Assessing Officer. 5.5 We have heard the rival submission and perused the relevant material on record. In view of the bills and vouchers of vehicle maintenance expenses produced before the Ld. CIT(A), the issue in dispute is limited, whether the said expenses have been incurred for the purpose of the business of the assessee or are in the nature of personal expenses of the partners. In our opinion, the onus is on the assessee to substantiate that the expenses debited under the head "vehicle maintenance expenses" have been incurred wholly and exclusively for the purpose of the business irrespective of the fact, whether the same are incurred on fuels or the repair of the vehicles. In view of the above circumstances, we feel it appropriate to restore this issue to the file of the Assessing Officer and before him the assessee may produce logbook of the vehicles or any other evidences to substantiate its claim of expenses incurred for business purposes. In case of absence of any logbook or other evidence, the Assessing Officer may consider for disallowing reasonable expenditure towards possible personal use by the partners of the firm, in accorda ..... X X X X Extracts X X X X X X X X Extracts X X X X
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