TaxTMI 
TaxTMI 
2013 (5) TMI 307
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....ailed order assessed the income of assessee at Rs.41,77,559/-. The AO found fall in the gross profit rate assumed to hold that the books of accounts not properly maintained. In order to compute the correct income by invoking the provision of section 145(3) of the Act, after various discussions regarding the purchase, sales and the quantity of empty tins etc. proposed to admit the GP rate as was declared in the immediately preceding assessment year which assessment order has been placed on record by the ld. Counsel for the assessee. The AO by applying the same rate and holding the assessee not able to explain the fall in gross profit rate brought to tax a sum of Rs.23,13,794/- in the impugned assessment order. The ld AO further considered the explanation on account of freight paid to the truck owners on the basis of sales as well as purchases when he proposed to disallow a sum of Rs.4,57,970/- u/s 40(a)(ia) of the Act holding that the tax deduction at source was not deposited on time as claimed by the assessee, when he partly considered that the assessee had also violated the provision of section 40A(3) of the Act. Continuing his finding he further made addition of Rs.91,202/- in re....
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.... on single occasion did not exceed Rs.20000/-. 4. For that, appellant craves leave to amend, alter modify add to abridge and/or rescind any or all of the above grounds." ITA No.1447/Kol/2011 (by the Revenue): "i) that on the facts and circumstances of the case, the ld. CIT(A) erred in law by deleting the addition amount of Rs.23,13,067/- which was made by invoking provision of section 145(3) of the IT Act 1961. ii) that the ld. CIT(A) while deciding the issue in favour of the assessee, ignored the fact that no corroborating evidence in respect of the deduction of TDS u/s 194C was furnished by the assessee. iii) that the ld. CIT(A) failed to appreciate, while deciding the issue in favour of the assessee, in respect of Freight Charges claimed by the assessee without any cognizable documents in favour of his claim. iv) that the ld. CIT(A) has erred in deletion of the addition made by the AO in respect of Drawings after completion of assessment of the instant case u/s 143(3) of the Act, because the assessee has shown a very low drawings of only Rs.85,000/-. v) the appellant craves leave to add, alter or abrogate any ground of appeal at the time of hearing." 5. We have heard the....
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.... by the Revenue stands dismissed. 6. The next ground raised by the Revenue as well as the assessee relates to the disallowance of Rs.4,57,970/- u/s 40(a)(ia) of the Act which has been considered by the ld. CIT(A) by directing the AO to verify that the said sum having been subjected to deduction of tax at source was made known to the AO but whether verified by him in so far as the ld. Counsel for the assessee has submitted that the AO in his order as may be perused has categorically mentioned that the tax deducted at source was deposited on 26.09.2008. In view of the provision of the said section when the tax deducted at source is allowed to be deposited before filing of the return we are of the considered view that the ld. CIT(A) ought not to have directed the AO to verify the deposition of the tax on 26.09.2008 already which was not disputed by the AO. The Revenue has not been able to controvert this as of now therefore does not require any further direction by us. The direction of the ld. CIT(A), therefore, appears to be misplaced and the ground raised by the Revenue in so far as the evidence in respect of the deduction of TDS was made known to the AO who observed that the TDS h....
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....the case to be considered u/s 40A(3). We have perused the orders of the authorities below and we find the contention of the ld. Counsel for the assessee justified to the extent that there cannot be a provision for disallowance either u/s 40(a)(ia) or 40A(3) of the Act simultaneously. The ld. DR as of now has not been able to identify the portion of the disallowance u/s 40A(3) of the Act being 40% against which they are in appeal in so far as 60% has been deleted by the ld. CIT(A) as has been raised by way of a ground by the assessee before us. We do find that the authorities below have made contrary findings in so far as on one hand they held that the identity of the vehicle was not provided to invoke the provision of section 40(a)(ia) in so far as after having furnished the details before the AO who disallowed the same u/s 40A(3) of the Act. The ld. Counsel has pointed out that the AO himself has agreed to the proposition that the said assumption of freight charges to trucks of more than Rs.20,000/- does not apply to the assessee's facts and in so far as the same has come into effect from 1st July, 2007 which the ld. CIT(A) had also acknowledged but as a liberty that the assessee ....