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Income Tax Appellate Tribunal, CUTTACK BENCH, CUTTACK
Before: S/SHRI N.S SAINI & PAVAN KUMAR GADALE
IN THE INCOME TAX APPELLATE TRIBUNAL, CUTTACK BENCH, CUTTACK
BEFORE S/SHRI N.S SAINI, ACCOUNTANT MEMBER AND PAVAN KUMAR GADALE, JUDICIAL MEMBER
ITA No. 495/CTK/2014 Assessment Year : 2010-2011
DCIT, Circle -1(1), Vs. M/s.S.C.Padhee, Sambalpur Balibandha, Sambalpur PAN/GIR No.AAQFS 7009 F (Appellant) .. ( Respondent)
ITA No. 28/CTK/2016: Asst. Year: 2011-12
C.O.No.09/CTK/2015 (arising out of ITA No.495/CTK/2014) Assessment Year : 2010-2011
M/s.S.C.Padhee, Vs. JCIT/DCIT, Circle -1(1), Balibandha, Sambalpur Sambalpur PAN/GIR No.AAQFS 7009 F (Appellant) .. ( Respondent)
Assessee by : Shri N.L.Dash, AR Revenue by : Shri Kunal Singh, CIT DR
Date of Hearing : 01/08/ 2017 Date of Pronouncement : 04/08/ 2017
O R D E R Per N.S.Saini, AM The appeal filed by the revenue and cross objection filed by the
assessee are directed against the order of the CIT(A)- II, Bhubaneswar
dated 16.10.2014 for the assessment year 2010-2011. The assessee
has also filed appeal for the assessment year 2011-12 against the order
of the CIT(A), Cuttack dated 23.11.2015.
2 M/s.S.C.Padhee, Balibandha, Sambalpur First, we take up the appeal of the Revenue in ITA No.495/CTK/2014 for A.Y. 2010-2011. 2. In Ground No.1 of the appeal, the grievance of the revenue is that
the CIT(A) erred in deleting the disallowance of Rs.3,46,04,000/- being
remuneration paid to partner.
The brief facts of the case are that the Assessing Officer observed
that the assessee is a partnership firm having two partners namely, Shri
Prashant Kumar Padhee and Shri Sushil Kumar Padhee with 50% share
each in the firm. He observed that as per clause 10(II), it has been
stated that the amount of remuneration payable to the working partners
shall be determined in the manner laid down in Explanation 3 to Section
40(b) of the Income tax Act or any other provisions as may be in force in
the Income Tax assessment of partnership firm in the relevant accounting
year. It further provided that in case book profit does not exceed
Rs.50,000/-, the remuneration will be claimed to the extent of such book
profit only. The Assessing Officer observed that during the year under
consideration, the assessee firm has paid Rs.3,46,04,080/- as
remuneration to the partners. He observed that as per Explanation 3 to
Section 40(b) of the Act, for the purpose of this clause, book profit means
net profit as shown in the profit and loss account for the relevant previous
year computed in the manner laid down in Chapter IV D as increased by
the aggregate amount of the remuneration paid or payable to all the
partners of the firm if such amount has been deducted while computing
the net profit. According to the Assessing Officer, Explanation 3 to
3 M/s.S.C.Padhee, Balibandha, Sambalpur Section 40(b) does not lay down any manner for determining the
remuneration payable to the partners of the firm. Therefore, he held that
the partnership deed does not provide for quantification of the
remuneration payable to the partners and, therefore, he disallowed the
remuneration paid to partners of Rs,3,46,04,080/- .
On appeal before the CIT(A), the assessee relied on the decision of
Hon’ble H.P. High Court in the case of CIT vs. Anil Hardware Store, 323
ITR 368 (HP), wherein, it has been held that the manner of fixing the
remuneration of the partners has been specified in the deed but there
was nothing which debars them from claiming the maximum amount of
remuneration payable in terms of the partnership deed. The method of
remuneration having been laid down, the assessee firm is entitled to
deduct the remuneration paid to the partners under s. 40(b)(v) of the
Act. Reliance was placed on the decision of Pune Benches of the Tribunal
in the case of CIT vs. Suman Constructions (2009) 34 SOT 495 (Pune),
wherein, it has been held that salary to partners cannot be disallowed
only on the reason that the salary is not quantified in the partnership
deed.
The CIT(A) after considering the submissions made by the assessee
held that the provisions of section 40(b) of the Act only employ the term
‘authorise’ and not ‘quantify’ in respect of the remunerations payable to
partners. He held that the remunerations payable to the partners was
authorized by the partnership deed and, therefore, the Assessing Officer
4 M/s.S.C.Padhee, Balibandha, Sambalpur was not justified in disallowing the partner’s remuneration paid by the
partner and allowed the appeal of the assessee.
Ld D.R. relied on the order of the Assessing Officer whereas ld A.R.
supported the order of the CIT(A).
We have heard the rival submissions, perused the orders of lower 7.
authorities and materials available on record. The undisputed facts of the
case are that the Assessing Officer disallowed deduction for partner’s
remuneration of Rs.3,46,04,080/- claimed by the assessee on the ground
that the partnership deed did not provide how the remuneration to the
partners is to be quantified.
On appeal, the CIT(A) relying on the decision of Hon’ble H.P. High
Court in the case of Anil Hardware Store and the decision of the Pune
Benches of the Tribunal in the case of Suman Constructions (supra) held
that the remunerable payable to partners is to be authorized by the
partnership deed and not quantified.
Ld D.R. could not point out any error in these findings of the CIT(A)
by bringing any positive materials on record. Hence, we find no good
reason to interfere with the order of the CIT(A), which is hereby
confirmed and ground of appeal of the revenue is dismissed.
In Ground Nos.2 of the appeal, the grievance of the revenue is that
the CIT(A) erred in deleting the disallowance of ground loss made by the
Assessing Officer.
5 M/s.S.C.Padhee, Balibandha, Sambalpur 11. The brief facts of the case are that the Assessing Officer observed
that the assessee has claimed deduction of Rs.9210.98 MTs of fines as
ground loss. Out of this, 1050 MTs of fines purchased and placed at the
LPG Railway Siding was also claimed to have been totally lost. The other,
at the Port amounting to 8160.980 MTs out of the total 77230 MTs taken
to the Port out of which 60870 MTs have been exported. The percentage
of loss was claimed at 10.57%. The assessee was required to produce
evidence in support of the same. He observed that whatever
explanations and evidences have been presented do not satisfactorily
explain the ground loss to the extent claimed. Accordingly, he
disallowed 50% of this loss claimed and added to the income of the
assessee. The value of 4605.49 MTs of fines at the Port and the LPG
Railway sidings was taken to be Rs.1,10,53,176/- @ 2400/- per MT.
On appeal, the CIT(A) deleted the disallowance by observing as
under:
“The AO's decision to disallow the ground losses during the impugned F.Y. 2009-10 on estimate basis @50% followed the ostensible logic/rationale as under:
i) Total ground loss claimed as deduction by the 9210.98 MTs Appellant ii) Less: Fines purchased and placed at LPG 1050.00 MTs Railway Siding claimed to be completely lost iii Fines lost in transit at the Port 8160.98 MTs
i) It may be therefore noted that there are two kinds of losses, those at the Railway Siding and those at the Port. The total percentage of ground loss claimed of 9210.98 MTs was computed by the AO as J 0.57%. [NB: This computation of the AO is totally unclear and appears to be wrong. 10.57% appears to be the percentage of loss of the iron ore fines lost in transit at the Port of the total stock of
6 M/s.S.C.Padhee, Balibandha, Sambalpur 77230 MTs available and taken to the port to be sold (out of which 60870 MTs were sold as exports). The actual percentage of total ground losses is 9210.98 MTs/ 77230 MTs = 11.93%. The impugned portion of the assessment order also suffers from bad drafting, being devoid of syntax and dismissive and disregardful of the importance of punctuations].
ii) According to the AO, the Appellant could not substantiate the ground losses to the extent claimed above. Once again, the computations and the reasonings of the AO appear to be incomplete and therefore incomprehensible while arriving at the conclusions. What he means by the Appellant "not being able to satisfactorily explain" is unclear in the absence of any computational findings on the evidences submitted by the Appellant. The only thing that appears reasonably clear is that the AO held that the Appellant had reported 9210.98 MTs of ground losses. There is nothing new or outside the books of accounts and records of the Appellant in this information. “
Ld D.R. relied on the order of the Assessing Officer whereas ld
A.R. supported the order of the CIT(A).
After hearing the rival submissions and perusing the materials
available on record, we find that in the instant case, the assessee has
claimed ground loss of 9210.98 MTs which comprises of fines purchased
and placed at LPG Railway Siding claimed to be completely lost 1050
MTs and fines lost in transit at the Port 8160.98 MTs . The Assessing
Officer disallowed 50% of the loss for the reason that the assessee has
not satisfactorily explained the loss. The CIT(A) deleted the disallowance
made by the Assessing Officer on the ground that the Assessing Officer
has not been able to point out why the explanation submitted by the
assessee with regard to loss was not acceptable to him. He vacated the
disallowance as the Assessing Officer had made adhoc disallowance of
50% of the loss claimed by the assessee without assigning any justifiable
reason. Before us, ld D.R. could not point out any specific defect in the
7 M/s.S.C.Padhee, Balibandha, Sambalpur order of the CIT(A). Hence, we find no good reason to interfere with the
order of the CIT(A), which is hereby confirmed and the ground of appeal
of the revenue is dismissed.
In Ground No.3 of the appeal, the grievance of the revenue is that
the CIT(A) erred in deleting the disallowance made by the Assessing
Officer on suppressed sales of Rs.3,56,20,280/-.
The brief facts of the case are that the Assessing Officer found that
14,841.825 MTs of Iron Ore fines was not included in the sale receipts of
the assessee. No explanation for the same was offered by the assessee
and, therefore, he added Rs.3,56,20,380/- by valuing the same by
applying the rate of 2400 per MT.
On appeal, the CIT(A) held that the discrepancy of 14,814.825 MTs
of fines was explained by the shortage determined at 14,521.515 MTs by
the principal surveyor of the Department of Mines. He held that the
difference of 320.310 MTs was stated to be on account of transit losses
during the trip to the Paradip Port. He further stated that this is further
substantiated by the fact that the difference between the quantity
despatched from the mines sites to the Port was 44777.08 MTs while the
quantity received was 43,756.770 MTs, resulting in the equivalent
difference being transit loss as above of 320.310 MTs and, therefore, he
deleted the addition of Rs.3,56,20,280/-.
8 M/s.S.C.Padhee, Balibandha, Sambalpur
Ld D.R. relied on the order of the Assessing Officer and argued that
report of the Principal Surveyor of Department of Mines which was filed
before the CIT(A) was not produced before the Assessing Officer and,
therefore, he has accepted the same in violation of Rule 46A of IT Rules
without calling for a remand report from the Assessing Officer and,
therefore, the matter should be restored back to the file of the Assessing
officer for adjudication afresh.
Ld A.R supported the order of the CIT(A).
We have heard rival submissions, perused the orders of lower
authorities and materials available on record. In the instant case, the
undisputed facts are that the Assessing Officer observed that during the
year under appeal, the assessee has made sales as under:
(A) Fines : 58598.595 MTs
(B) 5-18/10/-30 : 35285.710 MTs
© Fines at Port : 60870.000 MTs
The Assessing Officer also observed that production of 43576.770 MTs
was stated to be shown at Port was included in the sales of 58598.595
MTs but in respect of rest of the fines of 14841.825 MTs, no satisfactory
explanation was offered. Therefore, he opined that sales receipts of
14841.825 MTs was not reflected in the trading results and by valuing the
9 M/s.S.C.Padhee, Balibandha, Sambalpur same @ Rs. 2400/-per MT arrived at the figure of Rs.3,56,20,380/- and
added the same to the income of the assessee.
On appeal, the CIT(A) deleted the addition on account of
suppressed sale made by the Assessing Officer on the ground that this
amount was included in the loss determined by the Principal Surveyor of
Department of Mines. The contention of ld D.R. is that the report of the
Principal Surveyor of Department of Mines was not given to the Assessing
Officer and hence, there was violation of Rule 46A of I.T.Rules as the
CIT(A) has relied on the same without calling for a remand report from
the Assessing Officer. Ld A.R. could not controvert this argument of ld
D.R. of the assessee. In the above facts and circumstances of the case,
in our considered view, in the interest of justice, the issue should be
remanded back to the file of the Assessing Officer for adjudication of the
same afresh after considering the report of the Principal Surveyor of
Department of Mines and after allowing reasonable opportunity to the
assessee. Hence, this ground of the revenue is allowed for statistical
purposes.
In the result, appeal filed by the revenue is partly allowed for
statistical purposes.
The cross objection filed by the assessee is in support to the order
of the CIT(A). Hence, the same is infructuous, and hence dismissed.
10 M/s.S.C.Padhee, Balibandha, Sambalpur Now we take up the appeal of the Assessee in ITA No.28/CTK/2016. AY: 2011-12
The sole issue involved in the appeal of the assessee is that the
CIT(A) erred in confirming the action of the Assessing Officer in
disallowing depreciation of Rs.57,03,909/- on plant and machinery on the
ground that they were not used during the year for the business of the
assessee.
The brief facts are the Assessing Officer disallowed depreciation on
plant and machinery for Rs.57,03,909/- on the ground that they were not
used during the year for the business of the assessee.
On appeal, the CIT(A) confirmed the action of the Assessing Officer
for the reason that the assessee could not produce any evidence
regarding the payment of electricity and diesel specifically and separately
for operation of the crusher plant. He also observed that the assessee did
not disclose where from the iron ore fines been brought. Whether the
same was brought to its plant for processing or the fines have been
brought at some other place and exported directly. The assessee failed to
produce the evidence of processing if any of the iron ore fines purchased
by it.
11 M/s.S.C.Padhee, Balibandha, Sambalpur 27. Before us, the arguments of ld A.R. is that the plant and machinery
were kept ready for use for the business of the assessee and hence was
entitled for depreciation.
We have heard rival submissions, perused the orders of lower
authorities and materials available on record. In the instant case, the
undisputed facts are that the Assessing Officer disallowed depreciation of
Rs.57,03,909/- to the assessee on plant and machinery on the ground
that they were not used for the business of the assessee during the year
under consideration.
On appeal, the CIT(A) confirmed the action of the Assessing Officer
as the assessee failed to produce any evidence for use of plant and
machinery for the business of the assessee. The arguments of ld A.R. is
that plant and machinery were kept ready for use for the business of the
assessee and hence, the assessee was eligible for depreciation for the
same. On a query by the Bench to ld A.R. as to when the plant and
machinery in question were put to use by the assessee in the subsequent
year, ld A.R. could not reply to the same. Hence, we find no good reason
to interfere with the order of the CIT(A), which is hereby confirmed and
ground of appeal of the assessee is dismissed.
In the result, appeal of the assessee is dismissed.
Order pronounced in the open court on 04/08/2017. Sd/- sd/- (Pavan Kumar Gadale) (N.S Saini) JUDICIALMEMBER ACCOUNTANT MEMBER Cuttack; Dated 04 /08/2017
12 M/s.S.C.Padhee, Balibandha, Sambalpur
B.K.Parida, SPS Copy of the Order forwarded to : 1. The Appellant : /Revenue: DCIT, Circle -1(1), Sambalpur 2. The Respondent. /Assessee: M/s.S.C.Padhee, Balibandha, Sambalpur 3. The CIT(A)-II, Bhubaneswar 4. Pr.CIT-11, Bhubaneswar 5. DR, ITAT, Cuttack BY ORDER, 6. Guard file. //True Copy// SR.PRIVATE SECRETARY ITAT, Cuttack