SABAPATI PALANIVELU,,SRIKAKULAM vs. THE ITO.,, SRIKAKULAM

IN THE INCOME TAX APPELLATE TRIBUNAL VISAKHAPATNAM BENCH, VISAKHAPATNAM BEFORE SHRI V. DURGA RAO, HON’BLE JUDICIAL MEMBER & SHRI D.S. SUNDER SINGH, HON’BLE ACCOUNTANT MEMBER ITA No. 341/VIZ/2017 (Asst. Year : 2012-13) Mettupalayem Sabapati vs. ITO, Ward-2, Palanivelu, Prop. M/s. MSP Srikakulam. Granites, Room No. 7, Banker’s Colony, Back side of Deepa Mahal, Srikakulam. PAN No. AFQPP 9356 R (Applicant) (Respondent)

Assessee by : Shri C. Subrahmanyam, FCA. Department By : Shri K.C. Das, Sr.DR

Date of hearing : 18/09/2018. Date of pronouncement : 26/09/2018. O R D E R PER V. DURGA RAO, JUDICIAL MEMBER

This appeal by the assessee is directed against the order of Commissioner of Income Tax (Appeals)-2, Visakhapatnam, dated 07/03/2017 for the Assessment Year 2012-13. 2. The assessee has raised the following grounds:- “1.0 That under the facts and circumstances of the case the orders passed u/s. 143(3) of the I.T. Act is contrary to the facts of the case and provisions of law. 2.0 The learned Commissioner of Income Tax(Appeals)(in short "CIT(A)"), under the facts and circumstances of the case, is not correct in disbelieving the agricultural income to the extent of Rs.2,88,640/- and considering the same as

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income liable for tax. 3.0 The learned CIT(A) is not correct in refusing to take note of the confirmation letters of the Trade creditors filed before him stating that these cannot be considered in the absence of petition under Rule-46A of I.T.Rules. The learned CIT(A) ignored the submission of the assessee that as per directions of AO confirmation letters in excess of Rs.1 lakh balances were called for and filed before AO and remaining confirmations were filed before CIT(A) to substantiate the case of the assessee. The impugned addition disputed is of Rs.13,98,880/- 4.0 The learned CIT(A) under the facts and circumstances is not correct in sustaining the disallowance of Rs.2,38,548/- made by the AO with regards to interest paid to Bank by considering such payment towards non-business purpose. 5.0 The learned CIT(A) under the facts and circumstances is not correct in sustaining the disallowance of expenditure of Rs.9,61,000/- on mere surmise and suspicion. 6.0 The learned CIT(A) under the facts and circumstances of the case is not correct in observing that the assessee has not produced bills before AO and as well as before him pertaining to query cutter expenditure to the extent of Rs.7,29,494/- thus confirming the addition. 7.0 The learned CIT(A) is not correct in confirming the addition of Rs.1,75,750/- for the alleged reason that the vouchers are not available which is factually not correct. 8.0 For these and other reasons that are to be urged at the time of hearing of the case the appellant prays that the orders passed by the learned CIT(A) are against the provisions of law and facts of the case and the same are to be quashed in the interest of justice.” 3. Ground Nos. 1 & 8 are general in nature, no adjudication is required, therefore, same are dismissed. 4. Ground Nos. 2 & 7 are not pressed, therefore, same are dismissed. 5. Ground No. 3 relates to addition of Rs. 13,98,880/-. 6. In the assessment order, the Assessing Officer has noted that out of the sundry creditors the assessee shown to have been

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outstanding of Rs. 63,50,810/-, but he only filed confirmations in respect of an amount of Rs. 49,51,930/-, for the remaining balance amount of Rs. 13,98,880/- (Rs. 63,50,810 – Rs.49,51,930), the assessee has not filed any confirmations, therefore the Assessing Officer has added the same to the total income of the assessee. 7. On appeal before the ld. CIT(A), the assessee has filed confirmation letters and submitted that addition may be deleted. The ld. CIT(A) has directed the assessee to file a petition for admission of additional evidence under Rule 46A, but assessee has failed to do so. Therefore, ld. CIT(A) has not considered the additional evidence and confirmed the order of the Assessing Officer. 8. Before us, ld. Authorized Representative for the assessee has submitted that ld. CIT(A) has not asked the assessee to file a petition for admission of additional evidence and he simply confirmed the order of the Assessing Officer, therefore, he prayed that additional evidence filed before the ld. CIT(A) may be considered and issue may be remitted back to the file of the Assessing Officer. 9. On the other hand, ld. Departmental Representative strongly opposed to remit the issue to the file of the ld. CIT(A).

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company. From the above, it is clear that assessee has diverted the above loan for making investment in the assets other than business purposes and hence, the interest claimed of Rs.2,38,548/- is disallowed, as incurred towards loan taken for non-business purposes. The assessee was specifically asked to prove this claim with necessary evidences. The assessee neither submitted the details nor explain the reasons for diverted the borrowed funds. Therefore, the Assessing Officer disallowed an amount of Rs. 2,38,548/-. 14. On appeal before the ld. CIT(A), it was submitted that the investment in M/s. MSP Paper Mills (P) Ltd. during the period July 2007 to 31/03/2010 and that the assessee’s share of investment of the company to the tune of Rs. 86 lakhs. It was submitted that the assessee did not make any investment in the said company during the subject year and submitted that there is no diversion of funds. With regard to the balance amount of Rs. 26 lakhs, it was submitted that the assessee has running account with M/s. MSP Paper Mills (P) Ltd. and that whenever funds were required the assessee, draw the funds from the said company and that the assessee would return the funds as per business needs and submitted that there is no diversion of funds. The assessee also filed the ledger extract of the account before the ld. CIT(A). The

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ld. CIT(A) has considered the same and observed that as on 01/04/2011, the account of M/s. MSP Paper Mills (P) Ltd. shows the debit balance of Rs. 26,76,080/-. During the subject year, there were both credit and debit transactions with the said company which gets squared off and the debit balances continued to be Rs. 26,82,664/-, but it was not explained what was the nature of business transaction with the said company. As at any point of time, there was advance outstanding of Rs. 26 lakhs for which interest was not charged and no evidence was adduced that the said advance was not out of the interest bearing funds. The loan outstanding was approximately Rs. 40 lakhs, therefore the Assessing Officer is justified in making the impugned disallowance and accordingly confirmed the order of the Assessing Officer. 15. Before us, ld. Authorized Representative for the assessee reiterated the submissions which he made before the ld. CIT(A) and he further submitted that assessee is running account with M/s. MSP Paper Mills (P) Ltd., whenever funds are required, the assessee is drawing funds from the said company and repaying the same whenever is required. However, the assessee is not able to establish that the funds borrowed from SBI Chennai were utilized for the purpose of assessee’s business and not diverted to other than business purpose except stating that no funds are

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diverted. The ld.CIT(A) gave a specific finding that a perusal of the ledger extract shows that as on 01/04/2011, the account of M/s. MSP Paper Mills (P) Ltd. show the debit balance of Rs. 26,82,664/- and the remaining balance is with M/s. MSP Paper Mills (P) Ltd. Therefore, keeping in view of the facts and circumstances of the case, we are of the opinion that the Assessing Officer has rightly made the addition and the same is confirmed by the ld. CIT(A). We find no reason to interfere with the order of the ld. CIT(A). Thus, this ground of appeal raised by the assessee is dismissed. 16. Ground No.5 relates to disallowance of expenditure of Rs.9,61,000/-. 17 In the assessment order, the Assessing Officer has noted that the assessee has claimed an expenditure of Rs. 84,91,875/- under the head fuel & spares & repairs and it was noted that most of the expenses were made to M/s. Ayush Enterprises. The Assessing Officer further noted that an amount of Rs. 9,61,000/- was paid in cash on various dates of an amount, not exceeding Rs.20,000/- and these payments either by self-made vouchers or not supported by any vouchers at all. The Assessing Officer further noted that most of the vouchers revealed that even for an amount of Rs. 100/- to 2,000/-, vouchers are available. The

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Assessing Officer doubted the genuineness of this expenditure when expenditure to the tune of Rs. 1,000/- or 2,000/- were not supported by bills, the Assessing Officer took the view that an amount of Rs. 9,61,000/- was not genuine and added to the total income of the assessee. 18. On appeal before the ld. CIT(A), it was submitted that the Assessing Officer has not listed out these expenses and that even otherwise it was contended that the disallowance was made under surmise and cannot be sustained, however, the ld. CIT(A) confirmed the order of the Assessing Officer. 19. On appeal before us, ld. Authorized Representative for the assessee has submitted that all the material, such as bills, vouchers and books of account are seized with the Assessing Officer. The assessee has filed an application before the Assessing Officer on 26/03/2015 to release the same to substantiate his case before the authorities. It has also been submitted that letter filed before the Assessing Officer has already filed before the ld.CIT(A) and submitted that the assessee is handicapped, because of the books of account, bills & vouchers seized by the Assessing Officer are not released even on request made to the Assessing Officer. So, it is submitted that under these circumstances, the assessee is not able to file the details neither

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before the Assessing Officer nor before the ld. CIT(A). He requested that the issue may be remitted back to the Assessing Officer for fresh consideration. 20. On the other hand, ld. Departmental Representative strongly supported the orders of the authorities below. 21. We have heard both the sides, perused the material available on record and orders of the authorities below. 22. The Assessing Officer has disallowed an amount of Rs.9,61,000/- on the ground that assessee has paid in cash to M/s.Ayush Enterprises on various dates. The assessee is not able to produce bills and vouchers, therefore, the Assessing Officer made the addition on the ground that the payments made by the assessee are not genuine, on appeal, ld. CIT(A) confirmed the the order of the Assessing Officer. The case of the assessee is that he is not able to substantiate his case before the Assessing Officer and even before the ld. CIT(A) also, because bills & vouchers are seized with the Assessing Officer and he requested the Assessing Officer to release the same. The Assessing Officer has not considered the request, therefore, assessee has not able to substantiate his case before the authorities below. The assessee pointed out from the paper book at Page No. 80 wherein he requested the Assessing Officer to release the books of account,

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vouchers and bills. Therefore, by considering the above request of the assessee, we are of the opinion that the assessee is not able to substantiate his case before the authorities below because of non-availability of relevant material. Hence, in the interest of justice, the issue has to be remitted back to the Assessing Officer for fresh adjudication. Accordingly, we set aside the order passed by the ld. CIT(A) and directed the Assessing Officer to decide the issue relating to the addition of Rs.9,61,000/- in denovo in accordance with law. Thus, this ground of appeal raised by the assessee is allowed for statistical purpose. 23. Ground No. 6 relating to addition of Rs. 7,29,494/-. 24. In the assessment order, the Assessing Officer has noted that the assessee has claimed an amount of Rs. 21,91,321/- under the head quarry cutter expenses and after verification of the vouchers noted that expenditure to the tune of Rs. 7,29,494/- relates to April, May & October of 2011 were not supported by any vouchers. Accordingly, the same amount of Rs. 7,29,494/- was disallowed and added to the total income of the assessee. 25. On appeal, ld. CIT(A) confirmed the order of the Assessing Officer. 26. Before us, the assessee is unable to produce the bills & vouchers because, books of account, bills & vouchers were seized

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with the Assessing Officer and submitted that issue may be remitted back to the Assessing Officer for fresh consideration. 27. On the other hand, ld. Departmental Representative strongly supported the orders of the authorities below. 28. We have heard both the sides, perused the material available on record and orders of the authorities below. 29. We find that the Assessing Officer has disallowed an amount of Rs. 7,29,494/- on the ground that assessee’s claim has not been supported by any vouchers. It is submitted by the ld.Authorized Representative for the assessee that the bills and vouchers are seized with the Assessing Officer and he made a request to release the same, but, the Assessing Officer has not released. Therefore, in the interest of justice, we are of the opinion that the issue has to be remitted back to the Assessing Officer. Accordingly, we set aside the order passed by the ld.CIT(A) and directed the Assessing Officer to decide the issue relating to the addition of Rs. 7,29,494/- in denovo in accordance with law. Thus, this ground of appeal raised by the assessee is allowed for statistical purpose.

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(D.S. SUNDER SINGH) (V. DURGA RAO) Accountant Member Judicial Member Dated : 26th Sep., 2018. vr/- Copy to: 1. The Assessee – Mettupalayem Sabapati Palanivelu, Prop. M/s. MSP Granites, Room No. 7, Banker’s Colony, Back side of Deepa Mahal, Srikakulam. 2. The Revenue – ITO, Ward-1(1), Srikakulam. 3. The CIT-2, Visakhapatnam. 4. The CIT(A)-2, Visakhapatnam. 5. The D.R., Visakhapatnam. 6. Guard file. By order

(VUKKEM RAMBABU) Sr. Private Secretary, ITAT, Visakhapatnam.