SUBHASH CHAND GUPTA, Jaipur V. ITO, BEHROR

ITA 898/JPR/2010

• Counselvise Citation: 89823114 RSA 2010
• Duration Of Justice: 1 year(s) 2 month(s) 17 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 23-09-2011
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: Not Allotted
• Assessment Year: 2004-2005
• Appeal Filed On: 06-07-2010
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: D K MEENA
• Keywords: Depreciation; Rule of consistency; Services rendered outside India
• Section: 194C; 131; 68; 69

Judgement Text

1 ITA 898(3)-10 IN THE INCOME TAX APPELLATE TRIBUNAL JAIPUR BENCH A JAIPUR BEFORE SHRI R.K. GUPTA AND SHRI N.L. KALRA ITA NO. 898, 899 & 731/JP/2010 ASSTT. YEAR : 2004-05, 05-06 & 07-08. SUBHASH CHAND GUPTA, VS. THE INCOME-TAX OFFICER, PROP. M/S. R.K. EXPORTS, WARD BEHROR, SHAHPURA. BEHROR. (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI MANISH AGARWAL RESPONDENT BY : SHRI D.K. MEENA DATE OF HEARING : 14.9.2011 DATE OF PRONOUNCEMENT : 23.9.2011 ORDER DATE OF ORDER : 23/09/2011. PER R.K. GUPTA, J.M. THESE ARE THREE APPEALS FILED BY THE ASSESSEE RELA TING TO ASSESSMENT YEARS 2004-05, 05-06 AND 07-08. 2. IN APPEAL FOR ASSESSMENT YEAR 2004-05, GROUND NO S. 1 AND 3 WERE NOT PRESSED BY THE LD. A/R. THEREFORE, THEY ARE DISMISSED AS NOT P RESSED. 3. REMAINING GROUND IS AGAINST SUSTAINING THE ADDIT ION OF RS.4,70,072/- MADE BY AO ON ACCOUNT OF NON SUPPLY OF MATERIAL. 4. THE AO MADE ADDITION OF RS. 4,70,072/- ON ACCOUN T OF SALE OF GRIT BY OBSERVING THAT THE PURCHASING PARTY HAS NOT SHOWN PURCHASES O F THIS AMOUNT. A PROTECTIVE ADDITION WAS MADE FOR ASSESSMENT YEAR 2005-06 ALSO BY THE AO BY OBSERVING THAT ASSESSEE HAS 2 SHOWN SUPPLY OF MATERIAL IN ASSESSMENT YEAR 2005-06 AS SALE HAS BEEN SHOWN IN THE YEAR 2004-05. THEREFORE, SUBSTANTIVE ADDITION WAS MADE F OR ASSESSMENT YEAR 2004-05 AND PROTECTIVE ADDITION FOR ASSESSMENT YEAR 2005-06. T HE LD. CIT (A) CONFIRMED THE ACTION OF THE AO. 5. AFTER CONSIDERING THE SUBMISSIONS AND PERUSING T HE MATERIAL ON RECORD, WE FIND THAT ASSESSEE DESERVES TO SUCCEED IN THIS GROUND. W E NOTED THAT AO DRAWN ADVERSE INFERENCE AGAINST ASSESSEE THAT M/S. C.P. ASSOCIATE S HAS NOT SHOWN ENTRIES IN ITS BOOKS IN RESPECT OF TRANSACTION ENTERED WITH THE ASSESSEE DU RING THE ASSESSMENT YEAR 2005-06 AND HELD THAT RECEIPT OF RS. 4,70,072/- PERTAINED TO TH E YEAR 2004-05 AND ACCORDINGLY THE ADDITION WAS MADE IN THE YEAR UNDER CONSIDERATION. WE FURTHER NOTED THAT ASSESSEE HAD SUPPLIED MATERIAL OF RS. 49,07,504/- TO M/S. C.P. A SSOCIATES AND HAD RECEIVED FULL PAYMENT AGAINST THE SUPPLIES WHICH INCLUDED SUPPLY OF MATERIAL WORTH RS. 4,70,072/-. IN VIEW OF PROVISIONS OF SECTION 44AF, ASSESSEE HAS SH OWN PROFIT ON THE SALES MADE TO THIS PARTY. IF BY ANY REASON, THE PURCHASING PARTY HAS NOT SHOWN THE PURCHASES IN THEIR ACCOUNT, NO ADVERSE INFERENCE CAN BE DRAWN AGAINST THE ASSESSEE BY MERELY OBSERVING THAT OTHER PARTY HAS NOT SHOWN THE PURCHASES. THE ASSES SEE HAS FURNISHED THE CONFIRMED COPY OF ACCOUNT OF M/S. C.P. ASSOCIATES AND HAS ALSO REQ UESTED TO SUMMON THE PARTY FOR RESOLVING THE DIFFERENCES IN THE STATEMENT OF ACCOU NT. BUT THE AO HAS NEITHER ISSUED SUMMON UNDER SECTION 131 NOR PROVIDED OPPORTUNITY T O CROSS EXAMINE M/S. C.P. ASSOCIATES. THEREFORE, IN OUR CONSIDERED VIEW THE ASSESSEE HAS DISCHARGED ITS ONUS BY FILING DETAILS OF SALES MADE TO THE ABOVE PARTY AND , THEREFORE, NO ADDITION SHOULD HAVE BEEN MADE IN THE HANDS OF THE ASSESSEE. ACCORDINGL Y, WE DELETE THE ADDITION OF RS. 4,70,072/-. 3 6. IN ASSESSMENT YEAR 2005-06, FIRST GROUND RELATES TO UPHOLDING ADDITION ON ACCOUNT OF CAPITAL GAIN OF RS. 1,25,830/-. THE AO MADE ADD ITION OF RS. 1,25,830/- IN CAPITAL GAIN BY OBSERVING THAT RENOVATION EXPENSES FOUND FALSE O N THE BASIS OF INSPECTORS REPORT AGAINST WHICH ASSESSEE SUBMITTED WRITTEN REPLY ON 2 4.12.2007 IN WHICH HE STATED THAT PURCHASES OF BUILDING MATERIAL MADE FROM M/S. AGARW AL BUILDING MATERIAL SUPPLIERS. IT WAS SUBMITTED THAT THERE ARE NUMBER OF SHOPS IN THE SAME NAME AND STYLE IN MANSAROVER AREA. IT WAS FURTHER STATED IN THE WRITTEN REPLY T HAT THE ENQUIRY HAS BEEN MADE FROM THE SHOP SITUATED IN SECTOR 117 WHEREAS THE ASSESSEE HA S PURCHASED THE GOODS FROM SECTOR 69 AS GIVEN IN ADDRESS ON PRINTED BILL OF SUPPLIER WHO SE PROPRIETOR IS SHRI RAJESH KUMAR. THE ABOVE REPLY WAS NOT FOUND SATISFACTORY. THEREF ORE, THE AO DISALLOWED THE CLAIM OF THE ASSESSEE. THE LD. CIT (A) HAS ALSO CONFIRMED T HE ACTION OF THE AO. 7. AFTER CONSIDERING THE ORDERS OF THE AO, LD. CIT (A) AND WRITTEN SUBMISSIONS FILED DURING THE APPELLATE PROCEEDINGS, WE FIND THAT ASSE SSEE DESERVES TO SUCCEED ON THIS GROUND. IT IS NOT IN DISPUTE THAT ASSESSEE SOLD TH E HOUSE MENTIONING THAT THERE WAS AN INCOMPLETE CONSTRUCTION ON FIRST FLOOR AND THE ASSE SSEE HAS FILED PURCHASE BILLS OF RAW MATERIAL PURCHASED FOR CONSTRUCTING THE PORTION OF FIRST FLOOR. THE AO MADE ADDITION ON THE BASIS OF INSPECTORS REPORT WHO AS PER REPLY FI LED BY THE ASSESSEE MADE ENQUIRY AT A WRONG ADDRESS. REPORT SUBMITTED BY INSPECTOR WAS N OT GIVEN TO THE ASSESSEE FOR FILING REPLY. THEREFORE, WITHOUT AFFORDING ANY OPPORTUNITY TO THE ASSESSEE, ADVERSE INFERENCE DRAWN BY THE AO, IN OUR CONSIDERED VIEW WAS NOT JUS TIFIED. THEREFORE, WITHOUT GOING INTO DETAIL FURTHER, WE DELETE THE ADDITION OF RS. 1,25, 830/-. 8. NEXT ISSUE IS AGAINST CONFIRMING THE ADDITION OF RS. 2,96,500/- ADDED UNDER SECTION 68 BY THE AO. 4 9. THE AO MADE ADDITION BY OBSERVING THAT ASSESSEE FAILED TO DISCHARGE HIS ONUS. THE AO HAS ALSO MENTIONED THAT ASSESSEE HAS FILED O RIGINAL AFFIDAVIT OF THE CREDITOR. HOWEVER, IN VIEW OF THE AO, THE ASSESSEE COULD NOT EXPLAIN THE CREDITS PROPERLY. IT WAS SUBMITTED BEFORE LD. CIT (A) THAT CONFIRMATION ALON G WITH THEIR AFFIDAVITS WERE FILED BEFORE THE AO AND REQUEST WAS MADE TO ISSUE SUMMON UNDER SECTION 131. HOWEVER, AO HAS NOT PURSUED THE MATTER FURTHER. THEREFORE, HE W AS NOT JUSTIFIED IN DECIDING THE ISSUE AGAINST THE ASSESSEE. HOWEVER, THE LD. CIT (A) WAS ALSO NOT SATISFIED WITH THE REPLY. ACCORDINGLY, HE CONFIRMED THE ACTION OF THE AO. 10. AFTER CONSIDERING THE SUBMISSIONS AND PERUSING THE MATERIAL ON RECORD INCLUDING DECISION OF HONBLE JURISDICTIONAL HIGH COURT IN CA SE OF M/S. ARAVALI TRADING CO., 187 TAXMAN 338 AND ALSO THE DECISION OF HONBLE SUPREME COURT IN CASE OF ORISSA CORPORATION PVT. LTD., 159 ITR 78 (SC) WHEREIN IT I S HELD THAT WHEN THE ASSESSEE FURNISHES NAMES AND ADDRESSES OF THE ALLEGED CREDIT ORS, THE BURDEN SHIFTS TO THE DEPARTMENT TO ESTABLISH THE REVENUES CASE AND IN O RDER TO SUSTAIN THE ADDITION THE REVENUE HAS TO PURSUE THE INQUIRY AND TO ESTABLISH THE LACK OF CREDITWORTHINESS AND THERE MERE ISSUE OF NOTICE UNDER SECTION 131 IS NOT SUFFI CIENT, WE ARE OF THE VIEW THAT ADDITION MADE AND SUSTAINED BY LOWER AUTHORITIES WAS NOT JUS TIFIED. PETTY LOAN OF RS. 19,000/- OR ODD EACH WAS TAKEN FROM 15 PARTIES. CONFIRMATION O F ALL THE PARTIES ALONG WITH AFFIDAVITS WERE FILED WHICH WERE NOT FOUND FALSE OR INCORRECT. REQUEST WAS ALSO MADE TO SUMMON THE PARTIES UNDER SECTION 131. HOWEVER, AO DID NOT ISSUE ANY SUMMON UNDER SECTION 131 TO THESE PARTIES. THEREFORE, IN VIEW OF THE DECISI ON OF HONBLE JURISDICTIONAL HIGH COURT AND HONBLE APEX COURT MENTIONED ABOVE, WE HOLD THA T ADDITION MADE AND SUSTAINED WAS NOT JUSTIFIED. ACCORDINGLY THE SAME IS DELETED. 5 11. GROUND NO. 3 RELATES TO ADDITION MADE UNDER SEC TION 40(A)(IA) OF THE ACT AT RS. 21,04,051/-. 12. THE ADDITION IS MADE ON THREE COUNTS I.E. SHIPP ING COMMISSION AT RS. 47,392/-, COMMISSION TO NRI AT RS. 5,26,070/- AND SHIPPING CH ARGES AT RS. 15,30,589/-. 12.1. ADDITION OF RS. 47,392/- WAS MADE BY THE AO B Y OBSERVING THAT ASSESSEE HAS VIOLATED PROVISIONS OF SECTION 40(A)(IA) IN NOT DED UCTING TDS AS THE NATURE OF PAYMENT IS OF COMMISSION. THE LD. CIT (A) HAS ALSO CONFIRMED T HE ACTION OF THE AO. 13. AFTER CONSIDERING THE WRITTEN SUBMISSIONS AND P ERUSING THE MATERIAL ON RECORD, WE FIND THAT ASSESSEE DESERVES TO SUCCEED ON THIS ISSU E. IT IS SEEN THAT THE AMOUNT OF RS. 47,392/- WAS ON ACCOUNT OF C & F CHARGES IN RESPECT OF EXPORT OF GOODS OUTSIDE INDIA, AND THEREFORE, THE ASSESSEE WAS LIABLE TO DEDUCT TA X UNDER SECTION 194H. HOWEVER, NO PAYMENT WAS MADE EXCEEDING RS. 20,000/-. TOTAL OF ALL THESE PAYMENTS WAS ALSO BELOW RS. 50,000/-. THEREFORE, EVEN PROVISIONS OF SECTIO N 194H WAS NOT APPLICABLE. IN VIEW OF THESE FACTS AND CIRCUMSTANCES, WE HOLD THAT ADDITIO N MADE IN VIEW OF SECTION 40(A)(IA) WAS NOT JUSTIFIED. ACCORDINGLY, THE SAME IS DELETE D. 14. FURTHER, ADDITION OF RS. 5,26,070/- WAS MADE ON ACCOUNT OF NRI COMMISSION. THE COMMISSION PAID BY ASSESSEE WAS PAID ON ACCOUNT OF RENDERING SERVICES OUTSIDE INDIA FOR PROCURING EXPORT ORDERS FROM THE BUYERS SITUATE D OUTSIDE THE TERRITORIAL BORDER OF INDIA. THEREFORE, IN OUR VIEW THE ASSESSEE WAS NOT LIABLE TO DEDUCT TAX ON THE AMOUNT OF COMMISSION PAID TO NRI AS THE SAME WAS NOT TAXABLE IN INDIA. UNDISPUTEDLY, THE SERVICES WERE RENDERED OUTSIDE INDIA. ALL THE DETAILS SHOWI NG THAT NRI LIVING OUTSIDE INDIA AND ALL THE SERVICES RENDER OUTSIDE INDIA WERE AVAILABLE ON RECORD AS COPY OF LEDGER ACCOUNT, BANK PAYMENT ADVICE, STATEMENT OF COMMISSION DUE RECEIVE D FROM THE PARTY OUTSIDE INDIA, COPY 6 OF PASSPORT OF PARTY AND VISA IN RESPECT OF NRI STA TUS AND COPY OF CIRCULAR NO. 786 DATED 7.2.2000 ARE PLACED ON RECORD. THEREFORE, IN OUR V IEW, NO TDS WAS LIABLE TO BE DEDUCTED ON THIS AMOUNT. SIMILAR ISSUE CAME UP BEFORE THE J AIPUR BENCH IN CASE OF M/S. MODERN INSULATOR LTD. DECIDED IN ITA NO. 281/JP/2010 DATED 13.4.2011 WHEREIN ON SIMILAR FACTS IT WAS HELD THAT ASSESSEE IS NOT LIABLE TO DEDUCT T AX ON THE SERVICES RENDERED OUTSIDE INDIA. RESPECTFULLY FOLLOWING THE DECISION OF SAME BENCH A ND IN VIEW OF RULE OF CONSISTENCY, WE HOLD THAT ADDITION MADE AND SUSTAINED OF RS. 5,26,0 70/- WAS NOT JUSTIFIED. ACCORDINGLY, THE SAME IS DELETED. 15. REMAINING ADDITION OF RS. 15,30,589 WAS MADE BY THE AO AGAIN TREATING THE SHIPPING CHARGES AS COMMISSION PAID BY THE ASSESSEE . IT WAS SUBMITTED BEFORE LD. CIT (A) THAT AO ARBITRARILY AND BY QUOTING MIS-LEADING DETAILS INTENTIONALLY MADE ADDITION OF LUMP SUM AMOUNT OF RS. 15,30,589/- BY SAYING THAT A UDITORS OF THE FIRM IN HIS REPORT IN FORM 3CD HAS MENTIONED THAT ASSESSEE HAS NOT DEDUC TED TDS ON SHIPPING CHARGES RS. 15,30,589/- PAYABLE TO NRI AGENT. IT SEEMS THAT O NLY TO MAKE ADDITION, THE AO HAS QUOTED THE MISLEADING INFORMATION AS IN THE REPORT OF AUDITORS, THE AUDITOR HAS MENTIONED THAT ASSESSEE HAS NOT DEDUCTED TDS ON SHIPPING CHAR GES OF RS. 15,30,589/- PAYABLE TO NON RESIDENT WITHOUT DEDUCTION OF TAX AT SOURCE PUR SUANT TO CIRCULAR NO. 723 DATED 19.09.1995 READ WITH RULE 172. IT WAS FURTHER SUBM ITTED THAT SHIPPING CHARGES WERE MADE IN CURRENCY OF SHIPPING AGENT THROUGH ACCOUNT PAYEE CHEQUE/DD, NAME AND ADDRESS OF AGENTS TO WHOM PAYMENT WAS MADE, WAS FILED. CIRCUL AR NO. 723 CLEARLY MENTIONED THAT NO TAX IS DEDUCTIBLE UNDER SECTION 194C AND 195 ON ACCOUNT OF ANY EXPENDITURE MADE IN THE SHAPE OF SHIPPING CHARGES. HOWEVER, THE LD. CI T (A) WAS NOT SATISFIED. THEREFORE, HE CONFIRMED THE ACTION OF THE AO. 7 16. AFTER CONSIDERING THE SUBMISSIONS AND PERUSING THE MATERIAL ON RECORD, WE FIND THAT ASSESSEE DESERVES TO SUCCEED ON THIS ISSUE ALS O. IT IS SEEN THAT TRANSPORTATION OF GOODS EXPORTED WAS MADE THROUGH FOREIGN SHIPPING COMPANIE S AND MADE PAYMENTS TO THEIR AGENTS TOWARDS THE SHIPPING CHARGES. THUS THE PAYM ENTS WERE MADE BY THE ASSESSEE TO NRI SHIPPING COMPANIES THROUGH THEIR SHIPPING AGENT WHICH IS CLEARLY EVIDENT FROM BILL OF LADING AND DEBIT NOTE ISSUED IN THIS REGARD. BI LL OF LADING CLEARLY INDICATES THE STATUS OF FOREIGN SHIPPING COMPANY AS THEY ARE NON RESIDENT. THUS IN OUR VIEW, NO LIABILITY TO DEDUCT TAX ON ACCOUNT OF PAYMENT OF SHIPPING CHARGE S ARISES IN CASE OF ASSESSEE. CIRCULAR NO. 723 ISSUED BY CBDT WHICH READS AS UNDER :- CLARIFICATION REGARDING TAX DEDUCTION AT SOURC E FROM PAYMENT MADE TO FOREIGN SHIPPING COMPANIES. 1. REPRESENTATIONS HAVE BEEN RECEIVED REGARDING THE SCOPE OF SECTIONS 172, 194C AND 195 OF THE INCOME TAX ACT, 1961, IN C ONNECTION WITH TAX DEDUCTION AT SOURCE FROM PAYMENTS MADE TO FOREIGN SHIPPING COMPANIES OR THEIR AGENTS. 2. SECTION 172 DEALS WITH SHIPPING BUSINESS OF NON- RESIDENTS. SECTION 172(1) PROVIDES THE MODE OF LEVY AND RECOVERY OF TA X IN THE CASE OF ANY SHIP, BELONGING TO OR CHARTERED BY A NON-RESIDE NT, WHICH CARRIES PASSENGERS, LIVE-STOCK, MAIL OR GOODS SHIPPED AT A PORT IN INDIA. AN ANALYSIS OF THE PROVISIONS OF SECTION 172 WOULD SHO W THAT THESE PROVISIONS HAVE TO BE APPLIED TO EVERY JOURNEY A SH IP, BELONGING TO OR CHARTERED BY A NON-RESIDENT, UNDERTAKES FROM ANY PORT IN INDIA. SECTION 172 IS A SELF-CONTAINED CODE FOR THE LEVY A ND RECOVERY OF THE TAX, SHIP-WISE AND JOURNEY-WISE, AND REQUIRES T HE FILING OF THE RETURN WITHIN A MAXIMUM TIME OF THIRTY DAYS FROM TH E DATE OF DEPARTURE OF THE SHIP. 3. THE PROVISIONS OF SECTION 172 ARE TO APPLY, NOTW ITHSTANDING ANYTHING CONTAINED IN THE OTHER PROVISIONS OF THE A CT. THEREFORE, IN SUCH CASES, THE PROVISIONS OF SECTIONS 194C AND 195 RELATING TO TAX DEDUCTION AT SOURCE ARE NOT APPLICABLE. THE RECOVER Y OF TAX IS TO BE REGULATED, FOR A VOYAGE UNDERTAKEN FROM ANY PORT IN INDIA BY A SHIP, UNDER THE PROVISIONS OF SECTION 172. 8 4. SECTION 194C DEALS WITH WORKS CONTRACTS INCLUDIN G CARRIAGE OF GOODS AND PASSENGERS BY ANY MODE OF TRANSPORT OTHER THAN THE RAILWAYS. THIS SECTION APPLIES TO PAYMENTS MADE BY A PERSON REFERRED TO IN CLAUSES (A) TO (F) OF SUB SECTION (1 ) TO ANY RESIDENT (TERMED AS CONTRACTOR). IT IS CLEAR FROM THE SECTI ON THAT THE AREA OF OPERATION OF TDS IS CONFINED TO PAYMENTS MADE TO AN Y RESIDENT. ON THE OTHER HAND, SECTION 172 OPERATES IN THE AREA OF COMPUTATION OF PROFITS FROM SHIPPING BUSINESS OF NON-RESIDENTS. THUS, THERE IS NO OVERLAPPING IN THE AREAS OF OPERATION OF THESE S ECTIONS. 5. THERE WOULD, HOWEVER, BE CASES WHERE PAYMENTS AR E MADE TO SHIPPING AGENTS OF NON-RESIDENT SHIP-OWNERS OR CHAR TERERS FOR CARRIAGE OF PASSENGERS, ETC., SHIPPED AT A PORT IN INDIA. SINCE THE AGENT ACTS ON BEHALF OF THE NON-RESIDENT SHIP-OWNER OR CHARTERER, HE STEPS INTO THE SHOES OF THE PRINCIPAL. ACCORDINGLY, THE PROVISIONS OF SECTION 172 SHALL APPLY AND THOSE OF SECTIONS 194C AND 195 WILL NOT APPLY. THE CIRCULAR NO. 723 CLEARLY MENTIONS THAT NO TAX I S DEDUCTIBLE U/S 194C AND 195 AND CONSEQUENTLY THE EXPENDITURE ON SHIPPIN G CHARGES BECOMES ALLOWABLE EXPENDITURE. FURTHER THE CERTIFICATE HAS ALSO BEEN GRANTED BY DIRECTOR OF INCOME TAX (INTERNATIONAL TAXATION) REG ARDING 100% RELIEF TO VARIOUS FOREIGN SHIPPING COMPANIES ON ACCOUNT OF IN COME FROM OPERATIONS OF VESSELS OPERATING IN THE INTERNATIONAL TRAFFIC. IN VIEW OF THE ABOVE FACTS AND CIRCUMSTANCES, WE AR E OF THE VIEW THAT ASSESSEE WAS NOT LIABLE TO DEDUCT TAX ON THE AMOUNT PAID ON ACCOUNT OF SHIPPING CHARGES. WE FURTHER NOTED THAT ON SIMILAR FACTS AND CIRCUMSTANCES IN CASE OF ITO VS. MILLENNIUM DESIGN IN ITA NO. 993/JP/2008 VIDE ORDER DATED 21.04.2011 HAS DELETED THE SIMILAR DISALLOWANCE. IN VIEW OF THESE FACTS AND CIRCUMSTANCES, WE DELETE THE ADDITI ON OF RS. 15,30,589/- ALSO. 17. GROUND NO. 4 IS AGAINST CONFIRMING THE DISALLOW ANCE ON ACCOUNT OF MISCELLANEOUS EXPENSES WAS NOT PRESSED. THEREFORE, THE SAME IS D ISMISSED AS NOT PRESSED. 9 18. GROUND NO. 5 RELATES TO UPHOLDING AN ADDITION O F RS. 32,280/- ON ACCOUNT OF LOW WITHDRAWALS. 19. THE AO ESTIMATED THE HOUSEHOLD WITHDRAWAL AT RS . 8,000/- PER MONTH AND THEREBY MADE AN ADDITION OF RS. 32,280/-. THE LD. CIT (A) ALSO CONFIRMED THE ACTION OF THE A.O. 20. AFTER CONSIDERING THE SUBMISSIONS AND PERUSING THE MATERIAL ON RECORD, WE FIND THAT ASSESSEE DESERVES TO SUCCEED IN THIS GROUND IN PART. IT IS SEEN THAT ASSESSEE ALONG WITH HIS WIFE AND TWO SONS STAYING IN HIS OWN HOUSE. TH E ASSESSEE HAS SHOWN WITHDRAWAL OF RS. 63,720/- TOWARDS HOUSEHOLD EXPENSES AND ALL THE DRAWINGS WERE MADE EXCLUSIVELY FOR THE PURPOSE OF HOUSEHOLD EXPENSES. THE SONS ARE SC HOOL GOING CHILDREN AND WIFE IS HOUSE, BUT SHE IS ALSO ASSESSED TO TAX AND HAS SHOW N WITHDRAWAL OF CONSIDERABLE AMOUNT FOR HOUSEHOLD PURPOSES. THEREFORE, LOOKING TO THESE FACTS, WE ARE OF THE VIEW THAT THE ADDITION MADE ON ACCOUNT OF HOUSEHOLD EXPENSES IS O N HIGHER SIDE. THEREFORE, THE SAME IS RESTRICTED TO RS. 10,000/- AGAINST THE ADDITION MAD E OF RS. 32,280/-. 21. THE APPEAL FOR ASSESSMENT YEAR 2007-08 IS FILED BY LATE BY THREE DAYS. IT WAS INFORMED BY LD. A/R THAT ON THE LAST DAY THE APPEAL COULD NOT BE FILED AS CERTAIN LEGAL FORMALITIES REMAINED TO BE DONE AND ON THE NEXT TWO DAYS THERE BEING HOLIDAYS ON ACCOUNT OF SATURDAY AND SUNDAY, THE APPEAL COULD BE FILED O N MONDAY. THEREFORE, THE LD. A/R REQUESTED TO CONDONE THE DELAY OF THREE DAYS. IN V IEW OF THE ABOVE EXPLANATION, WE CONDONE THE DELAY IN FILING THE APPEAL LATE BY THRE E DAYS. 22. IN ASSESSMENT FOR ASSESSMENT YEAR 2007-08, GROU ND NO. 1 IS AGAINST CONFIRMING THE ADDITION MADE UNDER SECTION 40(A)(IA) AT RS. 9,84,3 28/-. 23. THIS ADDITION INCLUDES SHIPPING COMMISSION OF R S. 36,927/-, COMMISSION TO NRI RS. 2,88,746/- AND SHIPPING CHARGES AT RS. 6,58,655 /-. IDENTICAL ISSUE WAS RAISED IN 10 ASSESSMENT YEAR 2005-06 WHERE WE HAVE DELETED THE E NTIRE ADDITION. ON THE SAME REASONING THIS GROUND OF THE ASSESSEE IS ALLOWED FO R THE YEAR UNDER CONSIDERATION ALSO. 24. GROUND NO. 2 IS AGAINST UPHOLDING AN ADDITION O F RS. 21,290/-. 25. IN THIS YEAR THE ASSESSEE HAS SHOWN HOUSEHOLD W ITHDRAWAL RS. 80,710/- BESIDES WITHDRAWAL OF RS. 39,245/- BY HIS WIFE. THEREFORE, WE FEEL THAT WITHDRAWAL SHOWN IN THIS YEAR UNDER CONSIDERATION IS SUFFICIENT TO MEET THE HOUSEHOLD EXPENSES. ACCORDINGLY WE DELETE THE ADDITION OF RS. 21,290/-. 26. GROUND NO. 3 IS AGAINST CONFIRMING THE DISALLOW ANCE ON ACCOUNT OF INTEREST ON CAR LOAN, AND DEPRECIATION ON CAR WAS NOT PRESSED AT TH E TIME OF HEARING. THEREFORE, THE SAME IS DISMISSED AS NOT PRESSED. 27. IN THE RESULT, ALL THE APPEALS OF THE ASSESSEE ARE ALLOWED IN PART. 28. THE ORDER IS PRONOUNCED IN THE OPEN COURT ON 23 .9.2011. SD/- SD/- ( N.L. KALRA ) ( R.K. GUPTA ) ACCOUNTANT MEMBER JUDICIAL MEMBER JAIPUR, D/- COPY FORWARDED TO :- SUBHASH CHAND GUPTA, SHAHPURA. THE ITO WARD BEHROR, BEHROR. THE CIT (A) THE CIT THE D/R GUARD FILE (ITA NO. 898(3)/JP/2010 BY ORDER, AR ITAT JAIPUR. 11