M/S SOMYA PRIYA INFRASTRUCTURE, BEHROR V. INCOME TAX OFFICER, ALWAR

ITA 803/JPR/2017

• Counselvise Citation: [2018] 125 COUNSELVISE.COM (IT) 6408 (ITAT-JAIPUR)
• Duration Of Justice: 8 month(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 06-07-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2012-2013
• Appeal Filed On: 03-11-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: S L PODDAR
• Keywords: Unexplained cash credit; Depreciation; Additional evidence; Assessment record; Commercial expediency
• Section: 143(3); 133(6); 68; 144

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHE S, JAIPUR JH FOT; IKY JKO] U;KF;D LNL; ,OA JH FOE FLAG ;KNO] YS[KK LNL; DS LE{K BEFORE: SHRI VIJAY PAL RAO, JM & SHRI VIKRAM SINGH YADAV, AM VK;DJ VIHY LA-@ ITA. NO. 803/JP/2017 FU/KZKJ.K O'K Z@ ASSESSMENT YEARS : 2012-13 M/S SOMYA PRIYA INFRASTRUCTURE, CC-2, INDUSTRIAL AREA, PHASE-1, BEHROR, ALWAR. CUKE VS. THE ITO, WARD- BEHROR. ALWAR. LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN/GIR NO.: ABQFS 5919 K VIHYKFKHZ@ APPEL LANT IZR;FKHZ@ RESPONDENT FU/KZKFJRH DH VKSJ L S@ ASSESSEE BY : SHRI S. L. PODDAR (ADV.) JKTLO DH VKSJ LS @ REVENUE BY : SHRI ANUP SINGH (ADDL. CIT) LQUOKBZ DH RKJH[ K@ DATE OF HEARING : 29/05/2018 MN?KKS'K.KK DH RKJH[ K@ DATE OF PRONOUNCEMENT : 06/07/2018 VKNS'K@ ORDER PER: VIKRAM SINGH YADAV, A.M. THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST TH E ORDER OF LD. CIT(A), ALWAR DATED 16.08.2017 FOR ASSESSMENT YEAR 2012-13. 2. IN THE FIRST GROUND OF APPEAL, THE ASSESSEE HAS CHALLENGED THE ADDITION OF RS. 81,66,124/- MADE BY THE ASSESSING O FFICER WHICH HAS BEEN CONFIRMED BY THE LD. CIT(A) WITHOUT PROVIDING ANY OPPORTUNITY TO THE ASSESSEE TO SUBMIT HIS REPRESENTATION AND NOT C ONSIDERING THE ITA NO. 803/JP/2017 M/S SOMYA PRIYA INFRASTRUCTURE VS. ITO 2 WRITTEN SUBMISSION FILED BY THE ASSESSEE DURING THE COURSE OF REMAND PROCEEDINGS. 3. BRIEFLY, THE FACTS OF THE CASE ARE THAT DURING T HE COURSE OF ASSESSMENT PROCEEDINGS, BASED ON THE INFORMATION RE CEIVED FROM THE BANK OF BARODA BY ISSUANCE OF NOTICE U/S 133(6) OF THE ACT, THE ASSESSING OFFICER HELD THAT A SUM OF RS. 30,51,800/ - BEING THE DIFFERENCE BETWEEN CASH DEPOSIT AND CASH WITHDRAWAL S AND A SUM OF RS. 51,14,324/- BEING THE UNEXPLAINED CREDIT ENTRIES IN BANK ACCOUNTS MAINTAINED BY THE ASSESSEE AS UNDISCLOSED INCOME OF THE ASSESSEE U/S 69/69A OF THE ACT. 4. BEING AGGRIEVED, THE ASSESSEE CARRIED THE MATTER IN APPEAL BEFORE THE LD CIT(A) AND SUBMITTED CERTAIN ADDITIONAL EVID ENCE WHICH WERE FORWARDED TO THE AO FOR EXAMINATION AND COMMENTS. T HE LD. CIT(A) OBSERVED THAT DURING THE REMAND PROCEEDINGS, THE AS SESSEE DID NOT COOPERATE WITH THE AO IN THE EXAMINATION OF SUCH EV IDENCES AND GIVEN THAT THE PRIMARY ONUS OF PROVING THE GENUINENESS OF THE CLAIM REST ON THE ASSESSEE WHICH THE ASSESSEE HAS FAILED TO DISCH ARGE BOTH DURING THE ASSESSMENT PROCEEDINGS AND THE REMAND PROCEEDINGS, HE CONFIRMED THE ADDITION OF RS. 81,66,134/- IN THE HANDS OF THE ASS ESSEE. 5. DURING THE COURSE OF HEARING, THE LD. AR HAS SUB MITTED THAT THE ASSESSEE HAS REGULARLY ATTENDED THE ASSESSMENT PROC EEDING HOWEVER, NOTHING WAS MADE AVAILABLE TO THE ASSESSEE AND NO O PPORTUNITY HAS BEEN PROVIDED TO PROVIDE SPECIFIC EXPLANATION REGAR DING THE ENTRIES AND THE ENTRIES IN THE BANK ACCOUNT REMAINED UNEXPLAINE D. IT WAS FURTHER ITA NO. 803/JP/2017 M/S SOMYA PRIYA INFRASTRUCTURE VS. ITO 3 SUBMITTED THAT BEFORE THE LD. CIT(A) THE ASSESSEE P RESENTED DOCUMENTARY EVIDENCE WHICH THE ASSESSEE WAS UNABLE TO PRODUCE BEFORE THE ASSESSING OFFICER, HOWEVER, BOTH THE ASS ESSING OFFICER AS WELL AS THE LD. CIT(A) DID NOT CONSIDER THE EVIDENC ES PRODUCED BY THE ASSESSEE DURING THE REMAND PROCEEDINGS. IT WAS ACCO RDINGLY SUBMITTED THAT THE MATTER MAY BE SET ASIDE TO THE FILE OF THE ASSESSING OFFICER TO EXAMINE THE SAID EVIDENCES WHICH HAS BEEN DULY SUBM ITTED AND TAKING ON RECORD BY THE LD. CIT(A). 6. DURING THE COURSE OF HEARING IN ORDER TO VERIFY THE CONTENTION SO RAISED BY THE LD. AR REGARDING NON- GRANT OF OPPORT UNITY AND NOT TAKING THE ADDITIONAL EVIDENCE AND THE WRITTEN SUBMISSIONS INTO CONSIDERATION, THE ASSESSMENT RECORDS WERE CALLED FOR AND EXAMINED . IT WAS NOTED THAT ON 07.10.2016, A LETTER WAS ISSUED BY THE LD. CIT(A) TO THE ASSESSING OFFICER SEEKING THE REMAND REPORT AND THE REAFTER, ON COUPLE OF OCCASION, REMINDER LETTERS WERE ISSUED TO THE AO FOR FURNISHING THE REMAND REPORT AND FINALLY A REMAND REPORT WAS RECE IVED ON 09.08.2017 WHICH HAS BEEN REPRODUCED BY THE LD. CIT(A) IN PARA 5.3 OF HIS ORDER. ON PERUSAL OF THE REMAND REPORT, IT IS NOTED THAT T HE AO HAS STATED THAT VIDE LETTER DATED 13.06.2017, THE ASSESSEE WAS ASKE D TO PRODUCE COMPLETE BOOKS OF ACCOUNT ALONG WITH SUPPORTING EV IDENCES HOWEVER, NO COMPLIANCE WAS MADE AND ANOTHER OPPORTUNITY WAS GRANTED ON 03.07.2017 FIXING THE CASE FOR HEARING ON 07.10.20 16 BUT AGAIN NO COMPLIANCE WAS MADE. BASED ON THE ABOVE, THE AO IN HIS REMAND REPORT HAS STATED THAT THE ASSESSEE WAS PROVIDED AM PLE OPPORTUNITIES TO FURNISH CERTAIN DETAILS/ DOCUMENTS BUT THE ASSESSE E HAS FAILED TO DO SO. NO BILLS/VOUCHERS HAVE BEEN PRODUCED BY THE ASSESSE E DESPITE AMPLE ITA NO. 803/JP/2017 M/S SOMYA PRIYA INFRASTRUCTURE VS. ITO 4 OPPORTUNITY AFFORDED TO HIM. HE FURTHER SUBMITTED T HAT EVEN DURING THE COURSE OF ASSESSMENT PROCEEDINGS, AMPLE OPPORTUNITY WERE PROVIDED TO THE ASSESSEE BUT HE DID NOT COMPLY WITH THE SAME AN D THE MATTER WAS COMPLETED U/S 144 OF THE ACT. IT WAS ACCORDINGLY SU BMITTED THAT THE DETAILS/DOCUMENTS FURNISHED BY THE ASSESSEE BEFORE THE LD. CIT(A) REMAIN UNEXPLAINED AND THE SAME CANNOT BE ACCEPTED AS GENUINENESS OF THESE DOCUMENTS REMAINED UNVERIFIED. 7. AT THE SAME TIME, IT IS ALSO NOTED THAT THE ASSE SSING OFFICER IN HIS REMAND REPORT HAS REFERRED TO THE LD. CIT(A) LETTER NO. 686 DATED 07.06.2017 CALLING FOR THE REMAND REPORT HOWEVER, A S WE HAVE NOTED EARLIER, INITIAL LETTER WHICH WAS ISSUED BY THE LD. CIT(A) TO THE ASSESSING OFFICER SEEKING REMAND REPORT WAS ISSUED ON 07.10.2 016. HOWEVER, WE FIND THAT THERE IS NO MENTION THEREOF IN THE REMAND REPORT OR IN THE ORDER SHEET SO SUBMITTED BEFORE US. AT THE SAME TIM E, WE FIND THAT THE ASSESSMENT RECORDS CONTAINS A LETTER DATED 17.10.20 16 ADDRESSED TO THE ASSESSEE CALLING FOR AND FURNISHING OF DOCUMENTS AN D BOOKS OF ACCOUNT IN PURSUANCE TO THE LETTER RECEIVED FROM THE LD. CI T(A) VIDE LETTER NO. 919 DATED 07.10.2016. WE FURTHER FIND THAT IN RESPO NSE TO THE SAID LETTER DATED 17.10.2016, THE ASSESSEE VIDE ITS AR, M/S SARK ASSOCIATES, CHARTERED ACCOUNTANTS HAS SUBMITTED WRITTEN SUBMISS IONS DATED 27.10.2016 WHICH TALKS ABOUT PRODUCTION OF BOOKS OF ACCOUNT CONTAINING CASH BOOK, LEDGER, BANK BOOK, JOURNAL FOR VERIFICA TION OF THE ASSESSING OFFICER. 8. IN LIGHT OF ABOVE FACTS AND CIRCUMSTANCES OF THE CASE, IT SEEMS THAT THE ADDITIONAL EVIDENCE SUBMITTED BY THE ASSES SEE DURING THE ITA NO. 803/JP/2017 M/S SOMYA PRIYA INFRASTRUCTURE VS. ITO 5 COURSE OF REMAND PROCEEDINGS HAS NOT BEEN EXAMINED BY THE ASSESSING OFFICER AND THEREFORE, IN THE INTEREST OF JUSTICE, WE HEREBY REMAND THIS MATTER TO THE FILE OF THE ASSESSING OFFICER TO EXAM INE THE SAME AFRESH IN LIGHT OF THE ADDITIONAL EVIDENCE SO SUBMITTED BY TH E ASSESSEE, AFTER PROVIDING REASONABLE OPPORTUNITY TO THE ASSESSEE. IN THE RESULT, GROUND NO. 1 IS ALLOWED FOR STATISTICAL PURPOSES. 9. IN THE GROUND NO. 2, THE ASSESSEE HAS CHALLENGED THE ACTION OF LD. CIT(A) IN CONFIRMING THE ADDITION U/S 40(A)(IA) OF THE IT ACT ON ACCOUNT OF NON DEDUCTION OF TDS ON GENERATOR HIRING CHARGES AND TRANSPORTATION EXPENSES. 10. THE FIRST CONTENTION OF THE LD. AR IS THAT THES E EXPENSES WERE PAID DURING THE YEAR AND NOTHING WAS PAYABLE AT THE YEAR END THEREFORE, PROVISIONS OF SECTION 40(A)(IA) OF THE A CT ARE NOT APPLICABLE. THE SAID CONTENTION CANNOT BE ACCEPTED IN LIGHT OF THE DECISION OF THE HONBLE SUPREME COURT IN CASE OF PALAM GAS SERVICE VS. CIT 394 ITR 300. SECOND CONTENTION OF THE LD. AR IS THAT THE TD S ON GENERATOR HIRE CHARGES OF RS. 4,74,847 HAS BEEN DEDUCTED, HOWEVER, NOTHING HAS BEEN BROUGHT ON RECORD EITHER DURING THE ASSESSMENT OR T HE APPELLATE PROCEEDINGS THAT THE TDS SO DEDUCTED HAS BEEN DEPOS ITED BEFORE THE DUE DATE OF FILING OF RETURN OF INCOME. IN VIEW OF THE SAME, THE ADDITION SO MADE BY THE ASSESSING OFFICER REGARDING DG HIRE CHARGES IS HEREBY CONFIRMED. 11. REGARDING NON DEDUCTION OF TDS ON THE TRANSPORT ATION EXPENSES, IT HAS BEEN CONTENDED BY THE LD. AR THAT NO SUCH PA YMENT AGGREGATE OF ITA NO. 803/JP/2017 M/S SOMYA PRIYA INFRASTRUCTURE VS. ITO 6 WHICH EXCEEDS RS. 75,000/- IN A FINANCIAL YEAR OR R S. 30,000/- IN A SINGLE PAYMENT WAS MADE TO ANY PERSON DURING THE FI NANCIAL YEAR. HENCE, THE ASSESSEE WAS UNDER NO OBLIGATION TO DEDU CT TDS ON THE TRANSPORTATION EXPENSES. IN THIS REGARD, WE FIND TH AT AT THE ASSESSEES PAPER BOOK, AT PAGE 55, PAYMENT OF RS. 1.50 LAKHS, RS. 1.90 LAKHS AND RS. 4 LAKHS HAS BEEN MADE ON RESPECTIVE DATES AND T HE AMOUNTS HAVE BEEN DEBITED UNDER THE HEAD TRANSPORTATION EXPENSE S. THEREFORE, PRIMA FACIE THE CONTENTION SO RAISED BY THE ASSESSE E CANNOT BE ACCEPTED. FURTHER, IN ABSENCE OF ANY DOCUMENTARY EV IDENCE IN SUPPORT OF ITS CONTENTION, THE ADDITION SO MADE BY THE ASSE SSING OFFICER IS HEREBY CONFIRMED. IN THE RESULT, GROUND NO. 2 IS DI SMISSED. 12. IN GROUND NO. 3, THE ASSESSEE HAS CHALLENGED TH E CONFIRMATION OF ADDITION OF RS. 4,74,000/- ON ACCOUNT OF INTEREST O N FDR NOT DISCLOSED IN THE BOOKS OF ACCOUNTS. IN THIS REGARD, THE LD. A R HAS CONTENDED THAT THE ASSESSEE HAS PLACED FDR WITH THE MINING DEPARTM ENT AS SECURITY DEPOSIT AND AS A RESULT, THE ASSESSEE WAS NOT IN A POSITION TO GET ACTUAL FDR INTEREST FROM THE BANK HOWEVER, THE AUTHORITIES HAVE PRESUMED ACCRUED INTEREST @ 10% ON FDR AMOUNT AND HAS BROUGH T THE SAME TO TAX. IT WAS FURTHER SUBMITTED THAT THE ASSESSEE HAS NOT CHARGED ANY INTEREST ON UNSECURED LOANS OF RS. 1,06,87,273/- AS EXISTING ON 01.04.2011 AND AS THE AO HAS APPLIED AND ADDED INTE REST @ 10% ON FDR, THE ASSESSEE BE GIVEN BENEFIT OF AVAILING THE CREDIT OF INTEREST ON UNSECURED LOANS AS EXISTING IN THE FINANCIAL STATEM ENTS OF THE ASSESSEE AGAINST THE FDR INTEREST. ITA NO. 803/JP/2017 M/S SOMYA PRIYA INFRASTRUCTURE VS. ITO 7 13. IN THIS REGARD, THE LD. CIT(A) HAS RETURNED A F INDING THAT THE APPELLANT IS MAINTAINING THE BOOKS OF ACCOUNT ON ME RCANTILE BASIS AND THEREFORE THE ACCRUED INTEREST SHOULD HAVE BEEN ACC OUNTED FOR ON SUCH FDR AND SHOULD HAVE BEEN DECLARED AS INCOME DURING THE YEAR. WE DO NOT SEE ANY INFIRMITY IN THE SAID FINDING OF THE LD . CIT(A). HOWEVER, AS FAR AS THE QUANTUM OF INTEREST IS SAME, THE LD. AR HAS CONTENDED THAT THE AO HAS PRESUMED ACCRUED INTEREST @ 10% ON FDR. IN LIGHT OF THE SAME, WE HEREBY DIRECTED THE ASSESSING OFFICER TO A PPLY THE INTEREST RATE AS APPLICABLE ON THE SPECIFIED FDR AMOUNT AS P REVALENT DURING THE RELEVANT PERIOD. ALTERNATIVE PLEA OF THE LD. AR CAN NOT BE ACCEPTED AS IT WOULD BE A CASE OF FRESH CLAIM AND THERE IS NOTHING ON RECORD IN TERMS OF ANY INTEREST OF SECURED LOANS WHICH HAS BEEN CON TRACTUALLY AGREED UPON BETWEEN THE ASSESSEE AND BORROWERS AND WHICH H AS NOT BEEN DEBITED IN THE P & L ACCOUNT. IN THE RESULT, TO THE EXTENT OF DETERMINATION OF ACTUAL INTEREST ON FDR, THE MATTER IS REMANDED BACK TO THE FILE OF THE AO. THE GROUND IS THUS PARTLY ALLO WED FOR STATISTICAL PURPOSES. 14. IN GROUND NO. 4, THE ASSESSEE HAS CHALLENGED TH E ADDITION OF RS. 4,55,000/- ON ACCOUNT OF UNEXPLAINED CASH CREDI T U/S 68 OF THE IT ACT. IN THIS REGARD, THE LD. AR HAS SUBMITTED THAT THE ASSESSEE HAS RAISED ADDITION UNSECURED LOAN OF RS. 4,55,000/- FR OM TOMAR CONSTRUCTION COMPANY DURING THE YEAR AND BESIDES T HAT THERE WAS OPENING BALANCE OF RS. 11,10,100/- WHICH WAS BROUGH T FORWARD DURING THE PREVIOUS YEAR. IT WAS SUBMITTED THAT THE AUTHOR ITIES HAVE NOT PROVIDED ANY OPPORTUNITY TO PROVIDE THE NECESSARY E XPLANATION AND GIVEN THE FACT THAT THE OWNER OF TOMAR CONSTRUCTION COMPANY WAS NOT ITA NO. 803/JP/2017 M/S SOMYA PRIYA INFRASTRUCTURE VS. ITO 8 AVAILABLE, IT WAS NOT POSSIBLE FOR ASSESSEE TO OBTA IN CONFIRMATION BEFORE THE TAX AUTHORITY. IT WAS SUBMITTED THAT THE ASSESS EE SHOULD BE GIVEN AN OPPORTUNITY AND THE MATTER SHOULD BE REMANDED BA CK TO THE FILE OF THE ASSESSEE TO PROVIDE REASONABLE OPPORTUNITY TO T HE ASSESSEE TO SUBMIT NECESSARY CONFIRMATION. 15. IT IS NOTED THAT REGARDING IDENTITY, CREDITWOR THINESS AND GENUINENESS OF THE TRANSACTION, THE AO HAS STATED I N THE ASSESSMENT ORDER THAT THE ASSESSEE WAS REQUIRED TO PROVE THE I DENTITY, CREDITWORTHINESS OF THE LENDER AND GENUINENESS OF T HE TRANSACTION IN THE FORM OF COPY OF RETURN OF INCOME, COMPUTATION OF I NCOME AND BANK STATEMENT BUT THE ASSESSEE HAS NOT FURNISHED ANY DE TAILS WHICH CAN PROVE THE SAME AND IN ABSENCE OF THE SAME, IT HAS B EEN HELD THAT THE ASSESSEE HAS NOT DISCHARGED THE ONUS CAST UPON HIM U/S 68 OF THE ACT. THE LD. CIT(A) HAS ALSO RETURNED A FINDING THAT THE ASSESSEE HAS NOT DISCHARGED THE ONUS OF PROVIDING THE REQUISITE EVID ENCES TO SHOW THE GENUINENESS OF LOAN AMOUNT RECEIVED FROM M/S TOMAR CONSTRUCTION COMPANY. ACCORDINGLY, WE DO NOT SEE ANY INFIRMITY I N THE FINDING OF THE LD. CIT(A). HENCE, THE SAME IS CONFIRMED AND THE GR OUND TAKEN BY THE ASSESSEE IS DISMISSED. 16. IN GROUND NO. 5, THE ASSESSEE HAS CHALLENGED DI SALLOWANCE OF INTEREST OF RS. 32,88,78/- U/S 36(1)(III) OF THE AC T. BRIEFLY THE FACTS OF THE CASE ARE THAT THE ASSESSING ON PERUSAL OF THE D EPOSITS/ADVANCES SCHEDULE IN THE AUDITED FINANCIAL STATEMENT OF THE ASSESSEE FOR THE YEAR UNDER CONSIDERATION OBSERVED THAT THE ASSESSEE HAS MADE INTEREST FREE ADVANCE OF RS. 90,00,000/- TO M/S GANPATI REAL MART AND DEVELOPERS ITA NO. 803/JP/2017 M/S SOMYA PRIYA INFRASTRUCTURE VS. ITO 9 PVT. LTD. IN WHICH ASSESSEE WAS ALSO ONE OF THE DIR ECTORS. IT WAS ALSO NOTED BY THE ASSESSING OFFICER THAT THE ASSESSEE HA S PAID INTEREST OF RS. 3,28,878/- AS INTEREST ON OVER DRAFT ACCOUNT H ELD WITH THE BANK OF BARODA. IT WAS OBSERVED BY THE AO THAT ONE OF THE CONDITIONS REQUIRED TO BE SATISFIED U/S 36(1)(III) OF THE ACT IS THAT T HE CAPITAL BORROWED SHOULD HAVE BEEN UTILIZED FOR THE PURPOSE OF BUSINE SS, HOWEVER IN THE INSTANT CASE, THE FUNDS OF THE BUSINESS ARE DIVERT ED TOWARDS INTEREST FREE LOANS AND THE ASSESSEE HAS FAILED TO ESTABLISH ANY COMMERCIAL EXPEDIENCY AND BUSINESS NEXUS IN CONNECTION WITH IN TEREST FREE ADVANCES MADE TO M/S GANPATI REAL MART AND DEVELOPE RS PVT. LTD. ACCORDINGLY, A SUM OF RS. 3,28,878/- WAS DISALLOWED AND ADDED TO THE INCOME OF THE ASSESSEE. BEING AGGRIEVED THE ASSESSE E CARRIED THE MATTER IN APPEAL BEFORE THE LD CIT(A) WHO HAS CONFI RMED THE SAID ADDITION. 17. DURING THE COURSE OF HEARING, THE LD. AR HAS S UBMITTED THAT DURING THE FINANCIAL YEAR 2009-10, THE ASSESSEE HAD MADE AN ADVANCE OF RS. 90,00,000/- TO M/S GANPATI REAL MART AND DEV ELOPERS PVT. LTD. FOR PURCHASE OF SHOP IN COMMERCIAL COMPLEX SITUATE D AT CC-2 RIICO INDUSTRIAL AREA PHASE-1, BEHROR, ALWAR AND THE SAME IS REGULARLY SHOWN AND DISCLOSED BY THE ASSESSEE IN THE AUDITED BALANC E SHEET UNDER THE HEAD DEPOSIT/ADVANCES. IT WAS FURTHER SUBMITTED THA T DUE TO SOME REASONS, THE SHOP COULD NOT BE REGISTERED IN THE NA ME OF M/S SOMYAPRIYA INFRASTRUCTURE AND THE AMOUNT REMAINED A S ADVANCE IN THE BOOKS OF THE ASSESSEE. IT WAS SUBMITTED THAT EVEN T HOUGH THE SHOP IS NOT REGISTERED IN THE NAME OF THE ASSESSEE BUT IT I S IN THE POSSESSION OF THE ASSESSEE AND THE SAME IS EVIDENT AS ALL THE PAP ERS RELATED TO THE ITA NO. 803/JP/2017 M/S SOMYA PRIYA INFRASTRUCTURE VS. ITO 10 ASSESSEE WHICH WAS PRODUCED BEFORE THE AO WERE ADDR ESSED AT THE SAME COMMERCIAL COMPLEX SITUATED AT CC-2 RIICO INDU STRIAL AREA PHASE-1, BEHROR, ALWAR. IT WAS FURTHER SUBMITTED TH AT THE ADVANCE WAS GIVEN TO M/S GANPATI REAL MART AND DEVELOPERS PVT. LTD. DURING THE FINANCIAL YEAR 2009-10 RELEVANT TO ASSESSMENT YEAR 2010-11 AND THE ASSESSMENT FOR THE SAID YEAR HAS BEEN DULY COMPUTED U/S 143(3) OF THE ACT AND NO ADDITION HAS BEEN MADE BY THE AO IN THE SAID YEAR. IT WAS FURTHER SUBMITTED THAT THE ASSESSEE HAS NOT PAID AN Y INTEREST TO THE CREDITORS FROM WHOM THE ASSESSEE HAS TAKEN LOANS. I T WAS FURTHER SUBMITTED THAT TOTAL INTEREST FREE LOAN GIVEN IS ON LY RS 90,00,000 AND THE TOTAL INTEREST FREE FUNDS AVAILABLE WITH THE AS SESSEES AMOUNT TO RS. 123.44 LACS WHICH INCLUDES RS. 80.61 LACS INTEREST FREE LOANS AND RS. 42.88 LACS OF PARTNERS CAPITAL ACCOUNT. IT WAS ACCO RDINGLY SUBMITTED THAT THE DISALLOWANCE MADE BY THE AO TOWARDS INTEREST ON THE OVER DRAFT ACCOUNT BE DELETED. 18. THE LD. DR IS HEARD WHO HAS RELIED ON THE ORDE RS OF THE LOWER AUTHORITIES. IT WAS SUBMITTED THAT THERE IS NOTHING WHICH HAS BEEN BROUGHT ON RECORD IN TERMS OF ANY DOCUMENTARY EVIDE NCES IN SUPPORT OF THE CONTENTION THAT THE AMOUNT OF RS. 90 LACS WAS P AID TO M/S GANPATI REAL MART AND DEVELOPERS PVT. LTD. FOR PURCHASE OF SHOP AND IT IS CLEARLY IN THE NATURE OF LOANS AND ADVANCES WHICH HAS BEEN GIVEN INTEREST FREE AND THE AO WAS JUSTIFIED IN DISALLOWING THE INTERES T ON BANK OVERDRAFT. 19. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE MATERIAL AVAILABLE ON RECORD. IT IS THE CONTENTION OF THE LD . AR THAT THE ADVANCES TO M/S GANPATI REAL MART AND DEVELOPERS PVT. LTD. W AS MADE IN THE ITA NO. 803/JP/2017 M/S SOMYA PRIYA INFRASTRUCTURE VS. ITO 11 FINANCIAL YEAR 2009-10 RELEVANT TO ASSESSMENT YEAR 2010-11 AND NOT IN THE YEAR UNDER CONSIDERATION AND IN THE ASSESSMENT YEAR 2010-11, THE SAID FACT HAS BEEN ACCEPTED BY THE REVENUE WHEREIN THE ASSESSMENT HAS BEEN COMPLETED U/S 143(3) OF THE ACT. IT HAS BE EN FURTHER CONTENDED BY THE LD. AR THAT INTEREST FREE FUNDS AV AILABLE WITH THE ASSESSEE ARE MORE THAN THE INTEREST FREE ADVANCE TO M/S GANPATI REAL MART AND DEVELOPERS PVT. LTD. AND THEREFORE, IT CAN NOT BE HELD THAT THE BORROWED FUNDS FROM THE OVER DRAFT ACCOUNT HAVE BEE N DIVERTED AS ADVANCES TO M/S GANPATI REAL MART AND DEVELOPERS PV T. LTD. IT HAS FURTHER BEEN CONTENDED THAT THE SAID ADVANCE IS FOR THE PURPOSE OF PURCHASE OF SHOP WHICH IS IN THE POSSSESSION OF THE ASSESSEE HOWEVER, FOR SOME TECHNICAL REASONS THE REGISTRY HAS NOT BEE N MADE IN THE NAME OF THE ASSESSEE. IN OUR VIEW, ALL THESE CONTENTIONS NEEDS TO BE VERIFIED AND WE ACCORDINGLY, SET ASIDE THE MATTER TO THE FIL E OF THE ASSESSING OFFICER TO EXAMINE THE SAID CONTENTION SO RAISED BY THE LD. AR AFTER PROVIDING REASONABLE OPPORTUNITY TO THE ASSESSEE. I N THE RESULT, GROUND IS ALLOWED FOR STATISTICAL PURPOSES. 20. IN GROUND NO. 6, THE ASSESSEE HAS CHALLENGED TH E DISALLOWANCE OF 30% OF THE DIESEL AND FUEL EXPENSES OF RS. 1,00,000 /- AND REPAIRS AND MAINTENANCE EXPENSES OF RS. 1,85,307/-. IT WAS SUBM ITTED BY THE LD. AR THAT THE EXPENSES RELATING TO DIESEL AND FUEL AS WE LL AS REPAIRS AND MAINTENANCE HAVE BEEN INCURRED FOR THE PURPOSE OF T HE ASSESSEE BUSINESS AND GIVEN THAT THE ASSESSEE HAS SHOWN BUSI NESS RECEIPTS OF RS. 29.47 LAKHS ON ACCOUNT OF ITS BUSINESS, THE ADD ITION SO MADE SHOULD BE DELETED. ITA NO. 803/JP/2017 M/S SOMYA PRIYA INFRASTRUCTURE VS. ITO 12 21. ON PERUSAL OF THE ASSESSMENT ORDER, IT IS NOTED THAT THE AO HAS ASKED THE ASSESSEE TO SUBMIT THE NECESSARY BILLS AN D VOUCHERS IN SUPPORT OF THE EXPENSES HOWEVER, NO BILLS AND VOUCH ERS WERE SUBMITTED AND THE AO HELD THAT THE EXPENSES IN THE BOOKS OF A CCOUNT CANNOT BE RULED OUT. HE, THEREFORE, DISALLOWED 30% OF THE EXP ENSES AND BROUGHT THE SAME TO TAX. EVEN DURING THE APPELLATE PROCEEDI NGS, NO EVIDENCE HAS BEEN BROUGHT ON RECORD TO SUBSTANTIATE THE EXPE NSES AS HAVING INCURRED FOR THE PURPOSES OF THE BUSINESS. THE LD. CIT(A) HAS RETURNED THE FINDING THAT IN ABSENCE OF DISCHARGING THE PRIM ARY ONUS PROVING THAT SUCH EXPENSES HAVE BEEN INCURRED OR EXPENDED FOR TH E PURPOSE OF ASSESSEES BUSINESS, THE AO IS JUSTIFIED IN DISALLO WING SUCH EXPENDITURE. WE DONOT SEE ANY INFIRMITY IN THE SAID FINDINGS OF THE LD CIT(A). HENCE, THE GROUND TAKEN BY THE ASSESSEE IS DISMISSED. 22. IN GROUND NO. 7, THE ASSESSEE HAS CHALLENGED TH E CONFIRMATION OF DISALLOWANCE OF DEPRECIATION OF RS. 12,075/- ON FRI DGE DEBITED IN THE PROFIT AND LOSS ACCOUNT. DURING THE ASSESSMENT PROC EEDINGS, THE ASSESSEE WAS ASKED TO FURNISH THE DOCUMENTARY EVIDE NCE IN SUPPORT OF ADDITION MADE IN FIXED ASSET HOWEVER, IN ABSENCE OF ANY BILLS TOWARDS THE PURCHASE OF THE FRIDGE, THE CLAIM OF THE DEPREC IATION WAS DISALLOWED. DURING THE APPELLATE PROCEEDINGS, THE LD. CIT(A) HA S RETURNED A FINDING THAT THE ASSESSEE HAS NOT BEEN ABLE TO DISCHARGE TH E ONUS OF PROVIDING THE DETAILS OF PUTTING TO USE THE ASSET DURING THE YEAR, THEREFORE HE CONFIRMED THE DISALLOWANCE OF DEPRECIATION OF RS. 1 2,075/-. WE DO NOT SEE ANY INFIRMITY IN THE FINDING OF THE LD. CIT(A). HENCE, THE GROUND TAKEN BY THE ASSESSEE IS DISMISSED. ITA NO. 803/JP/2017 M/S SOMYA PRIYA INFRASTRUCTURE VS. ITO 13 IN THE RESULT, THE APPEAL OF THE ASSESSEE IS PARTL Y ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 06/07/2018. SD/- SD/- FOT; IKY JKO FOE FLAG ;KNO (VIJAY PAL RAO) (VIKRAM SINGH YADAV) U;KF;D LNL;@ JUDICIAL MEMBER YS[KK LNL;@ ACCOUNTANT MEMBER TK;IQJ@ JAIPUR FNUKAD@ DATED:- 06/07/2018. *SANTOSH VKNS'K DH IZFRFYFI VXZSFKR@ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ@ THE APPELLANT- M/S SOMYA PRIYA INFRASTRUCTURE, BEHR OR. 2. IZR;FKHZ@ THE RESPONDENT- ITO, WARD, BEHROR. 3. VK;DJ VK;QDR@ CIT 4. VK;DJ VK;QDR@ CIT(A) 5. FOHKKXH; IZFRFUF/K] VK;DJ VIHYH; VF/KDJ.K] T;IQJ@ DR, ITAT, JAIPUR. 6. XKMZ QKBZY@ GUARD FILE { ITA NO. 803/JP/2017} VKNS'KKUQLKJ@ BY ORDER, LGK;D IATHDKJ@ ASST. REGISTRAR