TaxTMI 
TaxTMI 
2010 (11) TMI 605
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....hicle maintenance expenses, hire charges and also under section 40A(2)(b) and 40A(3). The CIT(A), on merits, restricted the vehicle running and maintenance expenses to 5% of the claim as against 10% made by the A.O. and dismissed the grounds on additions u/s 40A(2)(b) and 40A(3). In addition to the above issues on merits, the assessee also contested as first ground of appeal before the CIT(A) that the A.O. did not serve the notice under section 143(2) of the Act within the time specified in clause (ii) of Sub section (2) of section 143, hence the assessment proceedings being bad in law the order under section 143(3) should be quashed. In support of the contention the assessee submitted an affidavit of the Director stating the fact that the company has not received any notice within the time allowed under section 143(2)(ii). The assessee also relied on the judgement of the Hon'ble Delhi High Court in the case of CIT vs. Lunar Diamonds Ltd. 146 Taxman 691. The CIT(A) has rejected the ground as under:- "I have gone through the contention of the appellant and do not find any merit in its case. The appellant in instant case had merely made a cursory statement in response to the ....
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....p; 3. RETAINING DISALLOWANCE OF VEHICLE MAINTENANCE EXPENSES OF RS.14,18,583 On the facts and in the circumstances of the case and in law the learned CIT(A) erred in retaining the disallowance of Rs.14,18,583 out of vehicle maintenance expenses without dealing with the submissions of the appellant. 4. DISALLOWANCE OF VEHICLE HIRE CHARGES OF RS.4,32,000 On the facts and in the circumstances of the case and in law the learned Assessing Officer erred in disallowing vehicle hire charge of Rs.4,32,000. The learned CIT(A) erred in ignoring the detailed submissions made coupled with the fact that the payments were made under genuine agreement. 5. DISALLOWANCE OF RS.21,005 U/S/40A(3) On the facts and in the circumstances of the case and in law the learned Assessing Officer erred in disallowing Rs.21,005 under section 40A(3) inspite of the fact that the amounts were paid to agent for the statutory payment to be made by the appellant. The CIT(A) erred in confirming the same." Revenue's Appeal ITA No. 842/Mum/2006: A.Y. 2002-03 "1. On the facts and in the circumstances of the case and in law, the learned counsel for the assessee has err....
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....are unable to understand what sort of evidence is required to support that the assessee has not received any notice. Once the assessee filed the affidavit that no notice was received, through its Director, it is for the Revenue to place on record evidence in support that the notice has been served. The burden is on the Revenue to prove that the so called notice dated 16.10.2003 was served on 18.10.2003 as stated in the assessment order. Since no evidence was brought on record that the said notice was served on the assessee, we are inclined to accept the contentions of the assessee that the A.O. has no jurisdiction to complete the assessment since the assessee was not served with the notice, within time specified in clause (ii) of sub-section (2) of section 143. 7. The CIT(A) also in a way relied on the provisions of section 292BB introduced by Finance Act, 2008 which cannot be applied to the assessment year under consideration. As held by the Hon'ble Special Bench of the ITAT in the case of Kuber Tobacco Products (P.) Ltd. vs. DCIT 117 ITD 273 (Del) (SB) the provisions of section 292BB has no retrospective effect and upto 31.03.2008 assessee is not precluded from taking any....
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....ed to above of the appellant." 10. Ground No. 1 is general in nature which does not require any adjudication. 11. Regarding ground No. 2, we find that the Assessing Officer has made disallowance at 10% of the total expenses on account of non-production of books and vouchers for verification. While making a disallowance, Assessing Officer relied upon the judgment of the Hon'ble Supreme Court in the case of CIT vs. Calcutta Agencies. The CIT(A) re-examined the issue in the light of the earlier orders in assessee's own case for A.Y. 201-02 and A.Y. 2002-03 in which the identical disallowance was restricted to 5%. The order of CIT(A) in A.Y. 2001-02 was upheld by the ITAT though the order in AY 2002-03 was not on the issue of jurisdiction. We, accordingly, find no infirmity in the order of the CIT(A) who has restricted the disallowance to 5% following his earlier orders for A.Y. 2001-02 and A.Y. 2003-03. Accordingly, the order of the CIT(A) is confirmed. 12. Regarding ground No. 3, it is noticed that during the course of the assessment proceedings the A.O. has noticed that the assessee has hired outside tankers for transportation of LPG Bitumen etc. On perusal o....