Appeal details
Counselvise Citation
[2019] 116 COUNSELVISE.COM (IT) 9695 (ITAT-CHANDIGARH)
Assessee PAN
Bench
Appeal Number
Duration Of Justice
6 month(s) 19 day(s)
Appellant
Respondent
Appeal Type
Income Tax Appeal
Pronouncement Date
26-06-2019
Appeal Filed By
Assessee
Order Result
Partly Allowed
Bench Allotted
SMC
Assessment Year
2013-2014
Appeal Filed On
07-12-2018
Judgement Text
, , IN THE INCOME TAX APPELLATE TRIBUNAL, CHANDIGARH BENCH SMC CHANDIGARH , ! BEFORE: SMT. DIVA SINGH, JM ./ ITA NOS. 1532 TO 1534/CHD/2018 !' # $# / A.Y. : 2012-13 TO 2014-15 M/S CHAUHAN PAPER P.LTD., 8/75, THAPAR COLONY, YAMUNA NAGAR. VS THE ITO, WARD 1, YAMUNA NAGAR. ./ PAN NO: AAACC7081J / APPELLANT / RESPONDENT / ASSESSEE BY : SHRI TEJ MOHAN SINGH / REVENUE BY : SHRI HARJINDER SINGH, ADDL. CIT / DATE OF HEARING : 23.05.2019 !'#$%& / DATE OF PRONOUNCEMENT : 26/06/2019 %&/ ORDER THE PRESENT APPEALS HAVE BEEN FILED BY THE ASSESSE E ASSAILING THE CORRECTNESS OF THE CONSOLIDATED ORDER DATED 18.09.2 018 OF CIT(A), PANCHKULA PERTAINING TO 2012-13, 2013-14 AND 2014-15 ASSESSME NT YEAR. 2. ITA 1532/CHD/2018 IS FIRST TAKEN UP ON THE REQUE ST OF THE PARTIES WHEREIN IT WAS A COMMON STAND THAT GROUND NO. 1 OF THE SAID APPEAL IS IDENTICAL TO GROUND NO. 2 IN ITA 1533 AND 1534/CHD/ 2018. APART FROM THE SAID COMMON ISSUE IN ALL THESE THREE APPEALS IN THE REMAINING TWO APPEALS OF 2013-14 AND 2014-15 ASSESSMENT YEARS, THE SOLE R EMAINING ISSUE WAS STATED TO BE IDENTICAL. 3. ACCORDINGLY ADDRESSING THE COMMON ISSUE IN THE T HREE APPEALS, THE LD. AR INVITED ATTENTION TO ITA 1532/CHD/2018 FOR ADDRE SSING THE FIRST COMMON ISSUE. GROUND NO. 1 THEREOF READS AS UNDER : 1. THAT THE LD. COMMISSIONER OF INCOME TAX(APPEALS ) HAS ERRED IN LAW AS WELL AS ON FACTS IN UPHOLDING THE ADDITION OF RS.4, 29,610/- MADE ON ACCOUNT ITA 1532 TO 1534/CHD/2018 A.Y. 2012-13 TO 2014-15 PAGE 2 OF 8 OF ALLEGED EXCESS DEPRECIATION CLAIMED ON COMMERCIA L VEHICLE IN UTTER DISREGARD OF THE EXPLANATIONS RENDERED WHICH IS ARB ITRARY AND UNJUSTIFIED. 4. THE FACTS RELEVANT TO THE SAID GROUND ARE THAT T HE ASSESSEE FOR THE TEMPO/TRAX VEHICLES USED IN ITS BUSINESS CLAIMED A HIGHER DEPRECIATION @ 30% STATING THAT THE USE WAS FOR THE BUSINESS PURPO SES. THE AO REDUCED IT TO 15% REJECTING THE EXPLANATION OFFERED NOTING THA T IT WAS SELF USED. 4.1 THE ISSUE WAS CARRIED IN APPEAL BY THE ASSESSEE HOWEVER, RESTRICTION OF THE DEPRECIATION CLAIMED WAS CONFIRMED BY THE CIT(A ). AGGRIEVED BY THIS, ASSESSEE IS IN APPEAL BEFORE THE TRIBUNAL. 5. THE LD. AR RELIED UPON THE SUBMISSIONS ADVANCED BEFORE THE AO AND CIT(A). IT WAS HIS SUBMISSION THAT THE VEHICLE WAS OWNED BY THE ASSESSEE AND WAS USED EXCLUSIVELY FOR ITS BUSINESS. THUS, T HE CLAIM OF HIGHER DEPRECIATION ON ACCOUNT OF THE PECULIAR USE OF THE ASSESSEE DESERVES TO BE ALLOWED. IT WAS HIS ARGUMENT THAT THE VEHICLES ARE REGISTERED UNDER COMMERCIAL VEHICLE ACT AND ARE USED EXCLUSIVELY FOR TRANSPORTING THE ASSESSEE'S MATERIAL ON COMMERCIAL BASIS. THE ASSESSEE COMPANY SELLS ITS MATERIAL ON FOR DESTINATION AND TRANSPORTATION EXPE NSE IS INCURRED BY THE ASSESSEE COMPANY ITSELF. IT WAS SUBMITTED THAT HAD THE VEHICLES BEEN OBTAINED ON HIRE FROM OUTSIDE, SIMILAR USE OF VEHIC LES WOULD HAVE ENTITLED THE OWNER TO CLAIM HIGHER DEPRECIATION. SIMPLY BEC AUSE THE ASSESSEE HAS USED HIS OWN VEHICLES, THE CLAIM HAS BEEN DENIED. IT WAS HIS ARGUMENT THAT THE VEHICLES HAVE BEEN PERFORMING THE SAME NATURE O F ACTIVITY WHICH THE HIRED VEHICLES WOULD HAVE BEEN PERFORMING. THE DEP RECIATION WHICH WOULD HAVE BEEN AVAILABLE TO A TEMPO/TRUCKS VEHICLE ON H IRE SHOULD HAVE BEEN MADE AVAILABLE TO THE ASSESSEE ALSO. 6. THE LD. SR.DR MR. HARJINDER SINGH OPPOSING THE S AID ARGUMENTS RELIES UPON THE IMPUGNED ORDER SO AS TO CONTEND THAT THE P RAYER OF THE ASSESSEE IS NOT SUPPORTED EITHER BY THE STATUTE OR BY ANY DECIS ION OF ANY COURT. IT WAS HIS SUBMISSION THAT THE ISSUE HAS BEEN DEALT WITH B Y THE CIT(A) ON WHICH HEAVY RELIANCE WAS BEING PLACED BY THE DEPARTMENT. ITA 1532 TO 1534/CHD/2018 A.Y. 2012-13 TO 2014-15 PAGE 3 OF 8 7. I HAVE HEARD THE SUBMISSIONS AND PERUSED THE MAT ERIAL AVAILABLE ON RECORD. THE RELEVANT FINDING CHALLENGED BY THE ASSE SSEE IN THE PRESENT APPEAL IS EXTRACTED HEREUNDER FOR READY REFERENCE : 5 . 2 I HAVE GONE THROUGH THE FACTS OF THE CASE AND T HE WRITTEN SUBMISSIONS FILED BY THE APPELLANT . IT IS OBSERVED THAT THE DEPRECIATION AT THE RATE OF 30% IS ALLOWED FOR A VEHICLE ONLY IF IT IS USED FOR TRANSPORT BUSINESS. FOR A VEHICLE WHICH IS NOT USED FOR TRANSPORT BUSINESS, THE ALLOWABLE RATE OF DEPRECIAT ION IS 15%. THESE FACTS ARE NOT IN DISPUTE. THE ONLY QUESTION THAT ARISES IS WHETHER T HE VEHICLES WHICH WERE USED TO SEND THE FINISHED GOODS TO THE BUYERS CAN BE STATED TO B E USED FOR TRANSPORT BUSINESS. ADMITTEDLY, THE APPELLANT COMPANY IS NOT ENGAGED IN THE TRANSPORT BUSINESS. THE AR OF THE APPELLANT HAS CONTENDED THAT THE MATERIAL IS SO LD FOR DESTINATION AND THE TRANSPORTATION EXPENSES CONDUCTED BY THE ASSESSEE C OMPANY ITSELF. IT HAS BEEN CONTENDED THAT IF THE VEHICLES WERE HIRED FROM OUTS IDE, THEY WOULD HAVE PLAYED THE SAME ROLE, BUT AT A HIGHER RATE OF TRANSPORTATION C HARGES. THE AR OF THE APPELLANT HAS FURTHER CONTENDED THAT SINCE THE VEHICLES OWNED BY THE APPELLANT COMPANY ARE PERFORMING THE SAME NATURE OF ACTIVITY WHICH HIRED VEHICLES PERFORM, THE SAME RATE OF DEPRECIATION SHOULD BE ALLOWED ON THESE VEHICLES. T HIS CONTENTION OF THE APPELLANT IS WITHOUT MERIT AS THE HIGHER RATE OF DEPRECIATION HA S BEEN SPECIFICALLY ALLOWED FOR VEHICLES ENGAGED SPECIFICALLY IN THE TRANSPORT BUSI NESS ON HIRE. IN THE CASE CITED BY THE APPELLANT, THE VEHICLES WERE BEING USED IN THE PRED OMINANTLY TO TRANSPORT MATERIAL THAT DID NOT BELONG TO THE ASSESSEE. THEREFORE, IT WAS H ELD THAT SINCE A LARGE PART OF BUSINESS RECEIPTS OF THE ASSESSEE WERE RECEIVED FOR TRANSPORTATION OF GOODS FROM ONE PLACE TO ANOTHER, IT COULD BE PRESUMED THAT THE ASS ESSEE WAS RUNNING THE VEHICLES ON HIRE. THUS, THE CASE LAW RELIED UPON BY THE APPELLA NT DIFFERS ON FACTS FROM THE PRESENT CASE. THE BUSINESS OF THE APPELLANT COMPANY IS NOT TRANSPORT AND THE VEHICLES ARE USED ONLY FOR SUPPLY OF THE APPELLANT'S OWN FINISHED GOO DS TO THE BUYERS. HENCE, IT CANNOT BE SAID THAT THE APPELLANT IS RUNNING THE VEHICLES ON HIRE AND ACCORDINGLY, THE VEHICLES ARE NOT ELIGIBLE FOR HIGHER RATE OF DEPRECIATION. IN VI EW OF THE ABOVE, THE DISALLOWANCE MADE BY THE AO IS UPHELD. THIS GROUND OF APPEAL IS DISMISSED. 7.1 ON A CONSIDERATION THEREOF, I FIND THAT IN THE FACE OF THE STATUTORY PROVISIONS WHICH PERMIT A HIGHER DEPRECIATION FOR V EHICLES ON HIRE, THE ASSESSEE'S CLAIM ON FACTS HAS CORRECTLY BEEN REJECT ED. ON FACTS, NO INFIRMITY HAS BEEN POINTED OUT BY THE ASSESSEE. NO DECISION OF ANY COURT OR TRIBUNAL HAS BEEN CITED PERMITTING SELF USE FOR A CLAIM OF H IGHER DEPRECIATION. IN THE ABSENCE OF REFERENCE TO ANY STATUTORY PROVISION PER MITTING THE CLAIM OR ANY DECISION OF ANY HIGH COURT OR APEX COURT PERMITTING SUCH A RELIEF I FIND NO GOOD REASON TO VARY THE CONCLUSION ARRIVED AT. BEIN G SATISFIED BY THE CONCLUSION DRAWN BY THE CIT(A) IN THE FACE OF THE S TATUTORY PROVISIONS, GROUND NO. 1 RAISED BY THE ASSESSEE WHICH IS THE S OLE ISSUE IN ITA 1532/CHD/2018 IS REJECTED. IN THE RESULT, ITA 1532 /CHD/2018 IS DISMISSED. ITA 1532 TO 1534/CHD/2018 A.Y. 2012-13 TO 2014-15 PAGE 4 OF 8 8. ADDRESSING THE COMMON ISSUE IN ITA 1533 & 1534/C HD/2018 RAISED BY WAY OF GROUND NO. 1 IN THE RESPECTIVE APPEALS, T HE COMMON STAND IS THAT THE LEAD ORDER IS AVAILABLE IN ITA 1533/CHD/2018. THE SPECIFIC GROUND IS REPRODUCED FROM ITA 1533/CHD/2018 FOR READY REFEREN CE: THAT THE LD. COMMISSIONER OF INCOME TAX(APPEALS) HA S ERRED IN LAW AS WELL AS ON FACTS IN UPHOLDING THE ADDITION OF RS.7,43,473/- MADE ON ACC OUNT OF DISALLOWANCE OF INTEREST CLAIMED APPLYING THE PROVISIONS OF SECTION 36(L)(III) WHICH IS ARBITRARY AND UNJUSTIFIED. 9. THE RELEVANT FACTS OF THE CASE ARE THAT THE ASSE SSEE WHO IS STATED TO BE DERIVING INCOME FROM MANUFACTURING AND TRADING OF E XERCISE NOTE BOOKS AND TRADING IN PAPERS CLAIMED AN EXPENSE OF RS. 1,07,64 ,597/- AS INTEREST/BANK CHARGES IN ITS PROFIT & LOSS ACCOUNT. THE AO FOUND THAT THE ASSESSEE WHO THOUGH HAD PAID INTEREST TO BANK HAD NOT CHARGED AN Y INTEREST ON ADVANCES GIVEN TO THE FOLLOWING PERSONS : SHIKSHA BHARTI FOUNDATION RS. 50,00,000/ ADVANCE AGAINST LAND (SHRI FOJA SINGH) RS. 10,00, 000/- SHRI PRATEEK SATIJA RS. 10,00,000/- SHRI ANIL MODI RS. 1,00,000/- M/S UMESH DEVELOPERS P.LTD. RS. 27,00,000/- SHRI MAHESH PANT RS. 10,00,000/- 9.1. ACCORDINGLY, HE REQUIRED THE ASSESSEE TO JUSTI FY THE SAID EXPENSE. FOR READY REFERENCE THE QUESTIONS RAISED BY THE AO AND THE REPLY OF THE ASSESSEE TAKEN INTO CONSIDERATION BY THE AO ARE REPRODUCED H EREUNDER FOR THE SAKE OF COMPLETENESS : 2.1. THE ASSESSEE WAS ASKED TO FILE JUSTIFICA TION FOR NON CHARGING OF INTEREST ON ADVANCES. VIDE REPLY DATED 05.01.2015, THE ASSESSEE HAS SUBMITTED AS UNDER: ' INTEREST HAS NOT BEEN RECEIVED SINCE THE AMOUNT GIV EN IS SHORT TERM IN NATURE AND THE AMOUNT HAVE ALREADY BEEN RECEIVED BACK BY THE COMPANY IN FURTHER YEAR. 2.2 THE JUSTIFICATION FILED BY THE ASSESSEE WAS NOT CONSIDERED SATISFACTORY ANOTHER OPPORTUNITY WAS PROVIDED VIDE QUESTIONNAIRE DATED 08.12.2015 AS REPRODUCED BELOW: 'THE JUSTIFICATION WITH REGARD TO ADVANCING OF THE ABOVE LOANS VIDE REPLY DATED 05.10.2015 IS NOT CONSIDERED SATISFACTORY AND IS THEREFORE, NOT ACCEPTABLE. NEITHER ANY INTEREST HAS BEEN CHARGED FROM THESE ADVANCES NOR HAS THE BUSINESS PURPOSE BEEN PROVED FOR MAKING THESE ADVANCES. PLEA SE EXPLAIN AS TO WHY THE PROPORTIONATE INTEREST MAY NOT BE DISALLOWED U/S 36 (I) (III) OUT OF INTEREST PAID TO BANKS, THE ASSESSEE HAS FILED ANOTHER EXPLANATION VIDE REP LY DATED 21.01.2016 AS UNDER: ITA 1532 TO 1534/CHD/2018 A.Y. 2012-13 TO 2014-15 PAGE 5 OF 8 1. IN RESPECT OF ADVANCE PAID TO SHIKSHA BHARTI FOUNDATION AMOUNTING TO RS.50, 00,000/-THE COMPANY FOR THE PROMOTION OF ITS SALES PAID THE AMOUNT TO THE FOUNDATION -OR PROCURING TENDER BUSINESS BY THE SAID FOUNDATION. DURING THE F.Y. . 2012-13 THE TENDER WAS UNDER PROCESS SINCE THE AMOUNT WAS PAID FOR THE PURPOSE OF THE BUSINESS , THE ADVANCE IS JUSTIFIED. ' NO SUCH DOCUMENTARY EVIDENCE REGARDING FILING OF TH E SAID TENDER HAS BEEN FILED. COMMERCIAL EXPEDIENCY TOR TILING OF THE SAID TENDER IS NOT PRO VED. THE ARGUMENT OF THE ASSESSEE IS DEVOID OF MERITS, HENCE REJECTED. '2. IN RESPECT OF ADVANCE AGAINST LAND AMOUNT ING TO (RS 10.00.000/-) THE ASSESSEE HAS PAID ADVANCE FOR THE PURCHASE OF LAND. THE REGISTRA TION OF THE LAND IN FAVOUR OF THE COMPANY WAS MADE IN SUBSEQUENT YEAR THE LAND WAS PURCHASED FOR THE PU RPOSE OF CONSTRUCTING THE GODOWN FOR STORAGE PURPOSE OF ITS BUSINESS GOODS' NO SUCH DOCUMENTARY EVIDENCE REGARDING THE SAID LAN D HAS BEEN FILED. IT IS ALSO NOT PROVED THAT THE SAID LAND IS TO BE USED FOR THE BUSINESS O F THE ASSESSEE. THE ARGUMENT OF THE ASSESSEE IS DEVOID OF MERITS, HENCE REJECTED. '3. IN RESPECT OF AMOUNT PAID LO MR. PRATEEK SALEEJA AM OUNTING LO RS. 15 LAC, THE AMOUNT WAS PAID FOR THE PURPOSE OF PURCHASE OF LAND IN THE NAME OF MR. PRATEEK SATEEJA FOR OPENING OF NEW OFFICE AT ZIRAKAPUR THE AMOUNT WAS GIVEN P URELY FOR THE PURPOSE OF BUSINESS THE ASSESSES AND AMOUNT OF ADVANCE IS JUSTIFIED NO SUCH EVIDENCE REGARDING OPENING OF' THE SA ID OFFICE HAS BEEN FILED. COMMERCIAL EXPEDIENCY OF THE TRANSACTION IS NOT PROVED . THE A RGUMENT OF THE ASSESSEE IS DEVOID OF MERITS, HENCE REJECTED. '4. IN RESPECT OJ AMOUNT GIVEN TO UMNESH DEVELOPERS PV T. LTD. AMOUNTING TO RS.27 LAC. THE AMOUNT WAS PAID FOR THE PURPOSE OF PURCHASE OF LAND AT ZIRAKPUR 'FOR OPENING NEW AVENUES OF BUSINESS AND CONSTRUCTING SALE OUTLET. THE NATUR E OF ADVANCE IS PURELY FOR THE PURPOSE OF BUSINESS OF THE ASSESSEE AND IS INSTILLED. ' NO SUCH EVIDENCE REGARDING OPENING OF THE SAID AVEN UE HAS BEEN FILED. COMMERCIAL EXPEDIENCY OF THE TRANSACTION IS NOT PROVED. THE AR GUMENT OF THE ASSESSEE IS DEVOID OF MERITS, HENCE REJECTED.. 5. IN RESPECT OF AMOUNT PAID TO MR. ANIL MODI, T HE AMOUNT WAS PAID EARLIER YEAR WAS WORKING AS EMPLOYEE OF THE COMPANY. THE AMOUNT WAS IN THE NATURE OF ADVANCES TO STAFF.' NO SUCH EVIDENCE HAS BEEN FILED. THE ARGUMENT OF TH E ASSESSEE IS DEVOID OF MERITS, HENCE REJECTED. 6. IN RESPECT OF AMOUNT PAID TO SH.MAHESH PANT AMOUNTING RS.10 LAC. THE AMOUNT WAS GIVEN AS SECURITY FOR PROCURING HIS PAPE R MANUFACTURING UNTIL NO SUCH EVIDENCE HAS BEEN FILED. I HE ARGUMENT OF T HE ASSESSEE IS LAC. DEVOID OF MERIT, HENCE REJECTED. ANOTHER EXPLANATION HAS BEEN FILED BY THE ASSESSEE VIDE REPLY TILED ON 22.01.2016 AS UNDER: ITA 1532 TO 1534/CHD/2018 A.Y. 2012-13 TO 2014-15 PAGE 6 OF 8 'FURTHER, IN ADDITION TO SUBMISSION MADE IN THE P REVIOUS HEARING WITH REGARD TO AMOUNT OF ADVANCE. IT IS SUBMITTED THAT THE ASSESSE E HAS RAISED SHARE CAPITAL AND INTEREST FREE UNSECURED LOANS DURING THE YEAR TO TH E TUNE OF RS.37,05,000/- THE ASSESSEE HAS FILED 3 EXPLANATIONS IN THIS REGAR D AS DISCUSSED ABOVE BUT FAILED TO PROVE THE COMMERCIAL EXPEDIENCY OF THE SAID ADVA NCES, WITH REGARD TO AVAILABILITY OF THE SHARE CAPITAL AN D INTEREST FREE UNSECURED LOANS, IT IS ALSO NOTEWORTHY) THAT THE ASSESSEE HAS PURCHASED LAND DURING THE YEAR UNDER CONSIDERATION ON DIFFERENT DATES FOR A CONSID ERATION OF RS.2.46.79.136 ASSESSEE. 10. NOT CONVINCED WITH THE EXPLANATION OFFERED, THE AO MADE A DISALLOWANCE HOLDING AS UNDER : THE ASSESSEE HAS PAID INTEREST TO BANK AND UNSECURE D LOANS BUT ON THE OTHER HAND GIVEN INTEREST FREE ADVANCES TO THE PERSONS DETAILED ABOV E. THEREFORE, THE ASSESSEE WAS ASKED TO EXPLAIN WHY THE INTEREST PAID ON ITS LOANS SHOULD N OT BE DISALLOWED TO THE EXTENT OF INTEREST ATTRIBUTABLE TO THE INTEREST FREE ADVANCE GIVEN LO THE PERSONS DETAILED US 36 (1) (III) OF IT ACT 1961. THE EXPLANATION FILED BY THE ASSESSEE IN EAC H CASE HAS BEEN DISCUSSED ABOVE. IT CANNOT BE THE CASE THAT ON THE ONE HAND ASSESSEE I S BORROWING INTEREST HEARING FUNDS AND ON THE OTHER, ADVANCING THE SAME TO PERSONS FOR NON BU SINESS PURPOSES WITHOUT CHARGING ANY INTEREST. THE ASSESSEE HAS NOT BEEN ABLE TO ESTABLI SH THE BUSINESS NEXUS OR THE COMMERCIAL EXPEDIENCY FOR ADVANCING THE SAID ADVANCES, THEREFO RE, INTEREST A 12% IS DISALLOWED OUT OF INTEREST PAID TO BANK AND TO UNSECURED LOANS TO THE EXTENT OF INTEREST NOT CHARGED ON THE ADVANCES GIVEN TO PERSON AS DETAILED BELOW:- S.NO. NAME OF PERSON AMOUNT OF ADVANCE INTEREST @12% P.A. 1. SHIKSHA BHARTI FOUNDATION 50,00,000/- 4,89,836/- 2. ADVANCE AGAINST LAND (SH FOJASINGH 10,00,000/- 96,393/- 3. SHRI. PARTEEK SATIJA 15,00,000/- 40,000/- 4. SHRI.ANIL MODI 1,00,000/- 12,000/- 5.M/S UMESH DEVELOPERS PVT. LTD. 27,00,000/- 45,409/- 6.SH.MAHESH PANT 10,00,000/- 59,835/- TOTAL 7,43,473/- 11. THE ISSUE WAS CARRIED IN APPEAL BEFORE THE CIT( A) WHEREIN IT WAS CLAIMED THAT THE FUNDS WERE ADVANCED FROM THE ASSES SEE'S OWN AVAILABLE FUNDS AND NO PART OF THE ADVANCES WERE MADE OUT OF THE BORROWED FUNDS. APART FROM THAT, IT WAS ALSO SUBMITTED THAT THE FUN DS ADVANCED WERE FOR THE BUSINESS PURPOSES IN AS MUCH AS FOR PROCURING TENDE R BUSINESS FROM THE FOUNDATION OF SHIKSHA BHARATI ETC. 12. HOWEVER, THE SUBMISSIONS ADVANCED WERE DISMISSE D BY THE CIT(A) HOLDING AS UNDER : 8.2 I HAVE GONE THROUGH THE FACTS OF THE CASE AND THE WRITTEN SUBMISSIONS FILED BY THE APPELLANT . IN THIS REGARD, THE AR OF THE APPELLANT HAS CLAIMED THAT TH E ADVANCES WERE GIVEN FOR BUSINESS PURPOSES AND THAT THE SAME WERE RECEIVED BACK IN FUTURE YEARS. IT IS OBSERVED THAT THE APPELLANT HAD GIVEN THE SAM E SUBMISSIONS DURING THE COURSE OF ITA 1532 TO 1534/CHD/2018 A.Y. 2012-13 TO 2014-15 PAGE 7 OF 8 ASSESSMENT PROCEEDINGS BUT THE AO DID NOT ACCEPT THE CONTENTION OF THE APPELLANT DUE TO LACK OF ANY DOCUMENTARY EVIDENCE PROVIDED IN SUP PORT OF ITS CONTENTION . THE AR OF THE APPELLANT HAS FAILED TO SUBMIT ANY DOCUMENTARY EVIDENCE IN SUPPORT OF IT S CLAIMS DURING THE APPELLATE PROCEEDINGS ALSO. IN THE ABSEN CE OF ANY DOCUMENTARY EVIDENCE, THE CONTENTION OF THE AR OF THE APPELLANT THAT THE ADVANCES WERE FOR BUSINESS PURPOSES CANNOT BE VERIFIED. IN VIEW OF THE ABOVE, THE ADDITION MADE BY THE AO IN THIS REGARD I S UPHELD. THIS GROUND OF APPEAL IS DISMISSED. (EMPHASIS SUPPLIED) 13. ON A READING OF THE AFORESAID FINDING OF THE CI T(A), IT IS EVIDENT THAT THE CLAIMS MADE BY THE ASSESSEE WERE NOT SUPPORTED BY DOCUMENTARY EVIDENCE. 14. THE LD. AR SUBMITTED THAT INFACT IN THE FACTS O F THE PRESENT CASE THE ASSESSEE HAS NOT BEEN PROPERLY ADVISED IN AS MUCH A S THE ASSESSEE WAS UNDER A BELIEF THAT THE SUBMISSION THAT THE ADVANCE S WERE FOR BUSINESS PURPOSES BY ITSELF WAS SUFFICIENT AND THE NECESSITY OF FILING SUPPORTING DOCUMENTARY EVIDENCES, WAS NOT MADE KNOWN TO THE AS SESSEE. THE SAID REQUIREMENT/SHORTCOMING WAS NOT CONFRONTED TO THE A SSESSEE BY THE THE CIT(A) ALSO. ACCORDINGLY, IT WAS HIS HUMBLE REQUEST THAT THE ISSUE MAY BE REMANDED IN ORDER TO AFFORD THE ASSESSEE AN OPPORTU NITY TO FILE FRESH SUPPORTING EVIDENCES. IT WAS HIS SUBMISSION THAT S INCE THESE SUPPORTING EVIDENCES ARE NOT AVAILABLE TO THE AO ALSO, THE REM AND MAY BE MADE TO THE AO AND NOT THE CIT(A) AS THE CORRECTNESS OF THE EVI DENCES WILL BE REQUIRED TO BE FIRST SEEN BY THE AO. THE LD. AR FURTHER GAVE H IS ORAL UNDERSTANDING THAT ASSESSEE SHALL NOT ABUSE THE TRUST REPOSED IN CASE OF A REMAND. 15. THE LD. SR.DR THOUGH PLACED RELIANCE UPON THE I MPUGNED ORDER HOWEVER, AGREED THAT THE MATTER MAY BE REMANDED TO THE AO AND NOT THE CIT(A) AS ADMITTEDLY FRESH EVIDENCES WILL BE NEEDED TO BE CONSIDERED BY THE AO FIRST. 16. I HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL AVAILABLE ON RECORD. IT IS SEEN THAT IN THE FACTS OF THE PRES ENT CASE THOUGH AN EXPLANATION WAS OFFERED HOWEVER, THE ASSESSEE FAILE D TO UTILIZE THE STATUTORY OPPORTUNITY OF APPEAL PROVIDED EFFECTIVELY AS SUPPO RTING EVIDENCES WERE NOT FILED. IN THE LIGHT OF THE SUBMISSIONS OF THE PARTI ES BEFORE THE BENCH AND NOTING THAT SINCE THE ISSUE IS A RECURRING ISSUE FO R THE TWO YEARS CONCERNED, ITA 1532 TO 1534/CHD/2018 A.Y. 2012-13 TO 2014-15 PAGE 8 OF 8 THUS IT WOULD BE IN THE INTERESTS OF JUSTICE TO TAK E ON RECORD THE RELEVANT AND NECESSARY EVIDENCES. ACCORDINGLY, ACCEPTING THE ORA L UNDERTAKING GIVEN BY THE LD. AR, THE ISSUE IS REMANDED BACK TO THE AO WI TH A DIRECTION TO PASS A SPEAKING ORDER IN ACCORDANCE WITH LAW. IT IS HOPED THAT THE ASSESSEE SHALL NOT ABUSE THE TRUST REPOSED. IT IS MADE CLEAR THAT IN THE EVENTUALITY OF ABUSE OF THE SAME, THE AO SHALL BE AT LIBERTY TO PA SS AN ORDER ON THE BASIS OF MATERIAL AVAILABLE ON RECORD. SAID ORDER WAS PRONO UNCED IN THE OPEN COURT AT THE TIME OF HEARING ITSELF. 17. GROUND NO. 2 IN THE REMAINING TWO APPEALS I.E. ITA 1533/CHD/2018 & ITA 1534/CHD/2018 IS IDENTICAL TO GROUND NO. 1 RA ISED IN ITA 1532/CHD/2018 WHEREIN THE CLAIM OF HIGHER DEPRECIAT ION FOR SELF OWNED TEMPOS AND TRUCKS ETC. HAS BEEN REJECTED. FOR THE REASONS AS GIVEN IN ITA 1532/CHD/2018 GROUND NO. 2 IN THESE TWO APPEALS IS ALSO DISMISSED. SAID ORDER WAS PRONOUNCED IN THE OPEN COURT AT THE TIME OF HEARING ITSELF. 18. IN THE RESULT ITA 1532/CHD/2018 IS DISMISSED AN D ITA 1533 & 1534/CHD/2018 ARE PARTLY ALLOWED FOR STATISTICAL PU RPOSES. . ORDER PRONOUNCED IN THE OPEN COURT ON 26 TH JUNE,2019. SD/- ( ) (DIVA SINGH) ! / JUDICIAL MEMBER ( ) (DIVA SINGH) ! / JUDICIAL MEMBER
Mehul