P.AMSA,ARAKKONAM vs. ITO WARD 3,, VELLORE

Since the assessee is common in both the appeals, these two appeals are clubbed together, heard together, disposed off by this common order for the sake of convenience.

The brief facts of the case are that the assessee is an individual & a single lorry owner and engaged in the business of transportation of sand brick and blue metal. A survey u/s.133A was conducted in the assessee’s business premises on 17.09.2013. Subsequent to survey a notice u/s.148 was issued to the assessee on 07.10.2013 giving 30 days of time to file the return of income and served on assessee on 08.10.2013. There was no response to the notice issued u/s.148 of the Act. A notice u/s.142(1) of the Act was issued on 09.04.2014 calling for certain details. There was no response for this also. Later, the AO issued various letters on 05.09.2014, 09.09.2014, 20.10.2014 & 18.12.2014. Thereafter the AO issued summons u/s.133A of the Act and was served on assessee on 19.02.2015. The assessee did not attend in response to summons. In response to summons, the assessee filed a reply dated 21.02.2015 requested a copy of books and documents impounded and the same were given on 02.03.2015 and time for filing the return were granted upto 12.03.2015. As the assessee had failed to furnish the return of income, finally the assessment order was passed on 31.03.2015 u/s.144 r.w.s.147 of the Act determining the income of assessee at `10.67 lakhs. Aggrieved by the orders of ld. Assessing Officer as well as Ld.CIT(A) confirming the assessment order, now the assessee is in appeal before us.

Now the assessee challenged (i) the addition of `8 lakhs by disallowing the claim of expenditure made by the assessee, and (ii) the addition of 24,000/- as unexplained investment u/s.68 of the Act on account of cash deposits into Savings bank account No.3564020100122 of Union Bank of India, Thakkolam made during the Financial year 2008-09.

Before the Bench, the ld.A.R submitted that the assessee is a transporter owning Heavy Goods Vehicle bearing No.TN 23Q 7831, as such provisions of the section 44AE is applicable. Hence, the assessee is not required to maintain regular books of accounts.

On the other hand, ld.D.R submitted that the assessee has not placed necessary evidence to show that the assessee is a transporter and she is owning a heavy goods vehicles, as such the income of assessee was not estimated u/s.44Ae of the Act.

I have heard both the parties and perused the material on record. A copy of Registration Certificate (RC) in the name of assessee i.e. AMSA P. having the same address of the assessee mentioned in the title from Transport Department, RTO Ranipet, dated 29.11.2016 in respect of Vehicle bearing No.TN 23Q 7831, which was not available before the Assessing Authority as well as Ld.CIT(A). In my opinion, this is to be examined afresh by the ld. Assessing Officer as the exparte assessment order was passed by the AO without co-operation of the assessee. In the interest of justice, I remit the entire issue to the file of ld. Assessing Officer for his consideration to decide the same after affording proper opportunity to the assessee.

I have heard both the parties and perused the material on record. In my opinion, if the addition is not based on any corroborative materials in support of sworn instatement recorded, hence the addition cannot be sustained as held by the judgement of Supreme Court in the case of CIT Vs. S.Khader Khan Son reported in (2013) 352 ITR 0480(SC). Accordingly, I remit this issue to the file of ld. Assessing Officer to establish the nexus between the sworn in statement and corroborative evidences, which suggests the addition.

The next issue is with regard to `63,000/- on account of rental income from house property.

Before me, the contention of the ld.A.R is that this income was already disclosed in the return of income, sustaining this addition by Ld.CIT(A) towards this amounts to double addition. Before the lower authorities, the assessee has not produced any evidence for actual income derived from the house rent /lease rent. In the absence of relevant evidence, addition was made by the lower authorities. This addition was based on the basis of Answer to Question No.3 of statement recorded from the assessee’s husband Shri J.Pachaiyappan during the course of survey on 17.09.2013. In my opinion, if the assessee is able to show this income already included in the return of income for assessment year under consideration, then there cannot be any further addition without any material in the hands of Assessing Officer. Accordingly, I remit this issue to the file of ld. Assessing Officer to examine whether the assessee has offered rental income in her return of income, or not.

In the result, both the appeals of the assessee for assessment years 2009-10 & 2012-13 are partly allowed for statistical purposes.