GOPALDAS SHIVHARE,GUNA vs. ACIT CIRCLE-3, AGRA

IN THE INCOME TAX APPELLATE TRIBUNAL AGRA (SMC) BENCH: AGRA

BEFORE SHRI A. D. JAIN, JUDICIAL MEMBER

I.T.A No. 136/Agra/2016 (ASSESSMENT YEAR-2010-11)

Gopal Das Shivhare, Prop. Sai ACIT-Circle-3, Gwalior. Corporation, Taliya Mohalla, Guna (M.P.) PAN No.ASWPS3273P (Assessee) (Revenue)

Assessee by Shri Rajendra Sharma, AR Revenue by Shri Waseem Arshad, Sr.DR.

Date of Hearing 23.10.2017 Date of Pronouncement 21.12.2017

ORDER This is assessee’s appeal for assessment year 2010-11, against the confirmation of disallowance of 3,30,700/- out of tyre expenses. The following

grounds have been raised: “1. That the Ld. CIT(Appeals)-2 Agra Camp at Gwalior has erred in confirming the total disallowances amounting to Rs.3,30,700/- out if tyre running expenses incurred by your appellant and disallowed by the Ld. AO Disallowances made up of the following heads:- S.No. Particulars Amount Disallowed

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That entire addition as made by the Ld. AO and confirmed by the Hon’ble CIT (Appeals) be deleted and justice be granted. 2. That your appellant is maintaining regular books of accounts which are supported by bills & vouchers and accounts are audited. Tyre running expenses A/c was filled before AO. The Ld. AO has not given reasonable opportunity of hearing to produce specific voucher of expenses before disallowance of expenses. The addition made by the Ld. AO on account of disallowance of expenses & disallowances u/s 40A (3) total amounting to Rs.3,30,700/- are based on presumptions, conjectures and surmises. The Ld. CIT (Appeals) wrong & illegally confirmed the additions made by AO ignoring the bills & vouchers produced before him & copies of the same were submitted to the Hon’ble CIT (Appeals). On submission of copies of bills & Voucher the Ld. CIT (Appeals) directed the AO to submit Remand Report on the said issue. But AO has not sent any remand report and Hon’ble CIT (Appeals) has

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illegally confirmed the disallowance of Rs. 3,30,700/- in above heads.

However, the assessee could not provide bills and vouchers for payments made on

twelve occasions, amounting to Rs.2,85,400/-. The AO made addition of

Rs.2,85,400/-, to cover up possible leakage of income. The AO further found the

assessee to have incurred the following tyre running expenditure in contravention

of section 40A(3) of the IT Act:

S. No. Date of Particulars Amount Payment paid in cash 1. 8.8.2009 Metro Cold (11900 + 11500) 23,400/- 2. 8.8.2009 New Modern Hot & Cold 21,900/- (11900 + 10,000) Total 45,300/-

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Again the assessee could not furnish any reply, or the concerned bills and vouchers and so, the AO added the amount of Rs.45,300/-. 3. The ld. CIT(A) has confirmed both the additions. As per impugned order, apropos the addition of Rs.2,85,400/-, before the ld. CIT(A), the assessee submitted that the said expenses were incurred through the drivers of the vehicles while they are on duty and on the move and as, when they return from outstation, the bills for expenses are submitted by them in the assessee’s office. It was further submitted by the ld. AR that all the bills/vouchers in support of the expenses were available but kept in a different file, and so, the same could not be produced before the AO. The ld. AR for the assessee submitted copies of the bills along with the written reply. 4. The ld. CIT(A), however, rejected the additional evidence as not having been produced before the AO and confirmed the addition of Rs.2,85,400/-. The addition of Rs.45,300/- was confirmed by reiterating the observations of the AO. 5. Regarding the addition of Rs.2,85,400/-, the ld. Counsel for the assessee has submitted, as also by way of the synopsis filed, as follows: “2. That the disallowance of Rs.2,85,400/- on account of tyre Running Expenses account for not producing bills and vouchers is wrong because no specific query was asked

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for producing the bills and voucher which are alleged in Asstt. Order (Para-4). AO himself stated in last line of para 4 that “addition is made to cover up the possible leakages of income”. Thus addition of Rs.2,85,400/- is made of presumption and doubts. 3. In tyre Running Expenses Account was filed before AO date wise, name of each party/firm with narration and bills were available with appellant/assessee and were produced before AO the AO has not asked specifically to produce the said bills and vouchers of tyre running expenses as alleged in para 4 hence Xerox copy of these bills were submitted to CIT(A) Gwalior on 21/01/2015 at the time of hearing of appeals. The CIT(A) Gwalior accepted the Xerox copy of said bills and noted in order sheet to call remand report from AO, the AO has not send/submitted any remand report till decision of this appeal. The appeal was transferred to CIT(A) Agra-2. 4. The CIT(A) Agra-2 without considering the facts of the case and submission made before him, has confirmed the addition made by A.O following the IT Rules 46 A (1) which is bad in Law as well as on facts.

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2,85,400/-.Thus sufficient opportunity of hearing as not provided to your appellant.”

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through different drivers, from different vehicles. As such, the addition as

confirmed is upheld.

Order pronounced in the open court on 21/12/2017.

Sd/- (A.D. JAIN) JUDICIAL MEMBER Dated 21 /12/2017 *AKV* Copy forwarded to: 1. Appellant 2. Respondent 3. CIT 4. CIT(Appeals) 5. DR: ITAT ASSISTANT REGISTRAR