MANISH RAY & CO.,SILIGURI vs. I.T.O., WARD - 1(1),, SILIGURI

For that on the facts and circumstances and legal position of the case, the Ld. AO ought not to have disallowed the remuneration paid to partners for Rs.5,43,556/- and the Ld. CIT (A) ought to have allowed the remuneration paid to partners and ought not to have confirmed the addition made by the Ld. AO.

For that on the facts and circumstances and legal position of the case, the Ld. AO ought not to have disallowed a sum of Rs.11,15,380/- being 20% of purchases made by the appellant. The Ld. CIT(A) ought to have deleted the addition made by the Ld. AO and ought not to have confirmed the addition made by the Ld. AO. 4. For that on the facts and circumstances and legal position of the case, the Ld. AO ought not to have disallowed a sum of 2 Rs.28,75,472/ being 30% of labour payments made by the appellant. The Ld. CIT(A) ought to have deleted the addition made by the Ld. AO and ought not to have confirmed the addition made by the Ld. AO.

That the appellant craves permission to add, amend, alter or vary all or any of the ground of appeal on or before the date of hearing of the appeal.

The appeal of the assessee is filed belated by 139 days. In this regard, the assessee has filed application for condonation of delay supported with an affidavit stating sufficient reasons for delay. The contents of the affidavit are as under :- 3 4

On careful consideration of the above affidavit of the assessee, it is found that the delay is in account of lack of knowledge about passing of the appellate order. It has also been submitted that due to ill-health of the counsel of the assessee, the assessee could not file appeal before the 5 Tribunal within the time. The moment the assessee came to know about passing of the appellate order, the assessee filed the present appeal before the Tribunal with a delay of 139 days, which is not found to be false. Accordingly, I condone the delay of 139 days in filing of the appeal and the appeal of the assessee is admitted for hearing. 4. Brief facts of the case are that the assessee is a Firm and had filed its return of income for A.Y.2018-19 on 29.10.2018 declaring business income at Rs.3,52,372/-. The case of the assessee was selected for Complete Scrutiny assessment under the E-assessment Scheme, 2019 for the following reason - “Excess Contribution of Provident Fund, Superannuation Fund or Gratuity Fund.”

Accordingly, the Assessing Officer completed the assessment and passed order u/s.143(3) of the Act determining total income at Rs.48,86,770/- after making following additions. i. Addition of Rs.5,43,556/- on account of disallowance u/s 40(b). ii. Addition of Rs. 11,15,370/- on account of disallowance of purchases. iii. Addition of Rs.28,75,472/- on account of disallowance of labour payment.

Aggrieved with the above additions, the assessee preferred appeal before the ld. CIT(A) and the ld.CIT(A) dismissed the appeal of the assessee. Now, the assessee is in further appeal before the Tribunal. 7. Ld. AR submitted that the in the assessment order the Assessing Officer has disallowed 30% of the labour payments. It was also submitted that the payments have been made to labour contractors and TDS has 6 also been deducted. Ld. AR further submitted that the assessment of the assessee had been taken up for limited scrutiny purpose regarding excess contribution to PF, superannuation fund and gratuity fund. The Assessing Officer disallowed the remuneration to the partners as also disallowed 30% of the total payments. Therefore, the ld. AR submitted that the additions as made by the ld. Assessing Officer and confirmed by the ld. CIT(A) deserve to be deleted. 8. On the other hand, ld. Sr. DR supported the orders of the authorities below and submitted that during the course of assessment the assessee could not produce any details. It was submitted that he has no objection if the issue is restored to the file of ld. Assessing Officer for readjudication afresh. 9. I have considered the rival submissions and perused the material available on record. A careful perusal of the facts of the present case clearly show that the details called for have not been submitted by the assessee before the Assessing Officer. This being so, in the interest of justice I am of the view that the issues in this appeal are required to be restored to the file of the ld.AO to dispose off the case of the assessee on merits after providing sufficient opportunity of being heard to the assessee and I do so. At the same breath, I also hereby caution the assessee to promptly co-operate with the proceedings before the ld. AO, failing which the ld. AO shall be at liberty to pass appropriate order in accordance with law and merits based on the materials available on record. Thus, the grounds raised by the assessee are allowed for statistical purposes. 7 10. In the result, appeal of the assessee is allowed for statistical purposes.