TaxTMI 
TaxTMI 
2016 (1) TMI 629
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....ure. 2. Whether on the facts and in the circumstances of the case and in law, Ld. CIT(A) was justified in relying on the decision of the Hon'ble Bombay High Court in case of Indo Saudi Services (Travel) (P) Ltd. (2009) 310 ITR 309 and deleting the disallowance made u/s. 40A(2)(b), when judicial decision in case of Nund & Samount Co. P. Ltd 78 ITR 268 (SC) and CIT vs. Shatrunja Diamonds (261 ITR 258 (Bom) are squarely applicable to this case. 3. Whether on the facts and in the circumstances of the case and in law, Ld. CIT(A) was justified in deleting disallowance made u/s.36(i)(va) for Employees Contribution to PF & ESIC, which were paid beyond the due date. 4. Whether on the facts and in the circumstances of the case and in law, Ld. CIT(A) was justified in deleting disallowance made u/s.40 (a)(ia) in respect of TDS paid in to the government account beyond due dates. 5. The Appellant prays that the order of the Ld. CIT(A) be vacated and that of the AO's order may be restored. 6. The appellant craves leave to add, alter, amend, modify any of the above grounds raised, any other grounds at the time of proceedings before the Hon'ble Tribunal which may please b....
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.... 7. Before the CIT(A), the assessee submitted that the detailed explanation filed by the assessee in justification of the reasonableness of the expenditure has not been considered by the Assessing Officer at all. Having regard to the detailed submissions made by the assessee reproduced in para 3.1 of the CIT(A)'s order, the CIT(A) obtained remand report from the concerned Assessing Officer, Pune for which the rejoinder from the assessee was sought and reproduced in para 3.3 of the appellate order. The assessee, inter-alia, submitted that for the assessment years 2001-02, 2003-04 and 2004-05, where the assessment was framed under section 143(3) of the Act, no disallowance was made in earlier years after scrutiny, based on the similar justification canvassed in respect of same parties. Therefore, primary onus which lay upon the assessee is duly discharged in this case. There are no change in the circumstances or the facts. He also canvassed that there were substantial brought forward assessed losses available to the assessee and therefore there is no perceptible benefit to the assessee by indulging wrongful excessive payments under section 40A(2)(b) of the Act. 8. On consideration ....
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....act that purchases at same margin from the same sec. 40A(2) parties were accepted by the AO from AY 2001-02 onwards without any disallowance u/s 40A(2), it is held that there was no justification to invoke provisions of section 40A(2) in respect of purchase of raw materials. Regarding purchase of packing material, advertisement and sales promotion, appellant had been charged on cost plus basis by the sister concerns supplying laminated packing material and providing advertisement and sales promotion services. Packing material in question was as per appellant's requirement for packing the tea in laminated film with higher density and in various colours, comparable instances for which were not available. The arms length nature of transactions in respect of supply of packing material, advertisement and sale promotion had been accepted in earlier years by the AO. After appellant had justified the consideration paid towards packing material, advertisement and sales promotion expenses etc in the above mentioned manner, it was for the AO to have brought material on record before it could be held that the price paid was excessive or unreasonable vis-a-vis fair market value. Similar tra....
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.... Act, which has not been discharged. 11. The Ld. Authorized Representative for the assessee raised preliminarily objection that the jurisdiction for hearing this appeal lies with the Ahmedabad Bench of the Tribunal and not with this Bench situated at Pune. This is owing to the fact that the assessment order has been passed by the assessee situated at Baroda, Gujarat and therefore the appellate jurisdiction lies with the Ahmedabad Bench of the Tribunal in terms of Rule 4 of the standing orders under the Income Tax (Appellate Tribunal) Rules, 1963, which provides for ordinary jurisdiction of the Bench to be determined by the location of the office of the Assessing Officer. 12. In rejoinder, the Ld. Departmental Representative for the Revenue submitted that the subsequent remand report has been obtained from the Assessing Officer situated at Pune and therefore jurisdiction may lie with the Pune Bench of the Tribunal. The Ld. Authorized Representative for the assessee did not object to such proposition. In view of this, the preliminarily objection is set-aside and matter was proceeded for hearing on merits. On merits, the Ld. Authorized Representative for the assessee submitted that ....
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.... deleted by the CIT(A). Thus, the ground of appeal Nos.1 and 2 pertaining to disallowance under section 40A(2)(b) of the Act raised by the Revenue are dismissed. 14. The ground No.3 of the Revenue's appeal arises from the action of the CIT(A) in deleting the disallowance made by the Assessing Officer under section 36(1)(va) of the Act for Employees Contribution to PF & ESIC which are paid beyond due date. 15. The Assessing Officer observed that Employees Contribution to PF & ESIC were paid beyond due date under respective Act as per section 36(1)(va) of the Act. The Assessing Officer disallowed Employees Contribution to PF of Rs. 28,444/- and Employees Contribution to ESIC of Rs. 22,667/-. It was submitted on behalf of the assessee that only delay is for the month of January, 2005 of Rs. 28,444/- which has been deposited on 17.02.2005, the payment though delayed has been made within grace period available under Employees Provident Fund Regulations. Similarly, for ESIC contribution, the payment is stated to have been made before due date of filing of return. The CIT(A) reversed the action of the Assessing Officer and allowed the expenses incurred by the assessee for impugned payme....
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....h Court in case of Indo Saudi Services (Travel) (P) Ltd. (2009) 310 ITR 309 and deleting the disallowance made u/s. 40A(2)(b), when judicial decision in case of Nund & Samount Co. P. Ltd 78 ITR 268 (SC) and CIT vs. Shatrunja Diamonds (261 ITR 258 (Bom) are squarely applicable to this case. 3. Whether on the facts and in the circumstances of the case and in law, Ld. CIT(A) was justified in deleting disallowance made u/s.36(i)(va) for Employees Contribution to PF & ESIC, which were paid beyond the due date. 4. Whether on the facts and in the circumstances of the case and in law, Ld. CIT(A) was justified in deleting the addition of Rs. 2,00,00,000/- made u/s. 68, when the assessee could not prove genuineness and creditworthiness of depositor/creditor inspite of sufficient opportunity given to him by the AO to prove the same. 5. The Appellant prays that the order of the Ld. CIT(A) be vacated and that of the AO's order may be restored. 6. The appellant craves leave to add, alter, amend, modify any of the above grounds raised, any other grounds at the time of proceedings before the Hon'ble Tribunal which may please be granted." 18. Ground Nos.1 and 2 of the Revenue'....
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....unt for the year ended on 31.03.2007. The opening balance which includes the principal amount of Rs. 2 crores plus the accrued interest of Rs. 4,81,601/- (net of TDS). The account shows that the interest having been paid on 22.06.2006. The account shows entry for credit of interest of Rs. 12,00,000/- out of which TDS of Rs. 1,34,640/- is deducted. This confirmation is signed by Shobhit H. Shah, the Accounts Manager of the depositor, who is an authorized signatory. It was contended on behalf of the assessee that in large organizations, account confirmations are generally signed by the heads of the accounts departments and the question of the signature being different from that on the PAN Card is of no consequence. He next contended that copy of cheque no.102207 dated 18.10.2005 drawn on ABN Amro Bank duly signed by the depositor together with the copy of the forwarding letter for the cheque was furnished before the Assessing Officer wherefrom it can be seen that while the cheque was signed by the depositor himself, the forwarding letter is signed by the same person who has signed the confirmation letter. It was further submitted that copy of the acknowledgement of the return of inco....
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....incipal amount of Rs. 2 crore plus the accrued interest of Rs. 4,81,601/- (net of TDS). The account showed the interest as above having been paid on 22-06-2006. Appellant had also filed copy of cheque dated 18.10.2005 of Rs. 2,00,00,000/- signed by Jayant Sanghvi, which was credited in appellant's bank account on the same day. After filing of confirmation as above, AO does not seem to have asked for confirmation for FY 2005-06. As such, when the documents filed proved the underlying loan transaction in FY 2005-06 also, merely because the confirmation was for FY 2006-07 cannot lead to adverse inference. The confirmation letter filed was signed by the Accounts Manager of the Depositor, who was an authorized signatory, due to which the signatures did not match with signatures on the PAN card of Shri Jayant Sanghavi. However, the signatures on the PAN card do match with signatures on the cheque dt. 18.10.2005 issued by Shri Jayant Sanghavi in appellant's name, which was credited in appellant's bank account on the same day. As such, due to the documents filed, there is no doubt about identity of the lender whose PAN card bearing photograph was filed. There is no doubt about ....
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....ties below. We find that the documents filed by the assessee have not been purportedly examined. It is not clear whether all the documents filed before the CIT(A) were present before the Assessing Officer or not. We find that the confirmation letter has been filed for subsequent year which indicates the opening balance of the earlier year. We consider it necessary that proper enquiry is conducted by the Assessing Officer to find out the bona-fides of the impugned cash credit. We observe that the Assessing Officer has failed to discharge his obligation to conduct a proper enquiry qua the lender to take the matter to logical conclusion. The CIT(A) has also accepted the version of the assessee without any enquiry from vendee. In our considered view, the proper enquiry is necessary in the circumstances existing in the case. Accordingly, We set-aside the issue to the file of the Assessing Officer with a direction to re-examine the issue after proper enquiry and after giving sufficient opportunity to the assessee in accordance with law. 24. Thus, the Ground No.4 of the appeal of the Revenue is allowed for statistical purposes. 25. In the result, the appeal of the Revenue in ITA No.159/....