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NITIN S. GARG vs.ASSISTANT COMMISSIONER OF INCOME TAX
AHMEDABAD TRIBUNAL
Bhavnesh Saini, J.M. & N.S. Saini, A.M.
ITA Nos. 169 to 172/Ahd/2009; Asst. yrs. 200102 to 200304 & 200607
Jun 4, 2010
(2010) 29 CCH 0488 AhdTrib
(2010) 40 SOT 0253
Legislation Referred to
Section 41(1)(a)
Case pertains to
Asst. Year 200102, 2002203, 200304, 200607
Decision in favour of:
Assessee
Income—Profits chargeable to tax—Cessation of liabilities—Additions made by AO on the
basis that the assessee had shown the liabilities in respect of the expenditure incurred
during the years but he has not given the details and addresses of the parties and thus are
not verifiable—Merely because the assessee obtained benefit of deduction in the earlier
years and balances are carried forward in the subsequent year, would not prove that the
trading liabilities of the assessee have become nonexistent—AO shall have to prove that the
assessee has obtained the benefits in respect of such trading liabilities by way of remission
or cessation thereof—Addition made under s. 41(1)(a) not tenable and had to be deleted
Held
It is clear that the assessee had continued to show the admitted amounts as liabilities in its balance
sheet. The liabilities reflected in the balance sheet cannot be treated as cessation of liabilities.
Merely because the liabilities are outstanding for last many years, it cannot be inferred that the said
liabilities have ceased to exist. It is also a fact that the assessee has not written off the outstanding
liabilities in the books of account and the outstanding liabilities are still in existence would prove
that the assessee acknowledged his liabilities as per the books of account. s. 41(1) is attracted
when there is cessation or remission of a trading liability. The AO shall have to prove that the
assessee has obtained the benefits in respect of such trading liabilities by way of remission or
cessation thereof. Merely because the assessee obtained benefit of deduction in the earlier years
and balances are carried forward in the subsequent year, would not prove that the trading liabilities
of the assessee have become nonexistent. It may also be noted here that the assessee has not
claimed any deduction of the expenditure in all the assessment years under appeal. Therefore,
provisions of s. 41(1)(a) have been wrongly applied in the matter.—CIT vs. Prameshwar Bohra
(2007) 208 CTR (Raj) 218 : (2008) 301 ITR 404 (Raj), CIT vs. Tamilnadu Warehousing Corpn. (2007)
212 CTR (Mad) 228 : (2007) 292 ITR 310 (Mad), CIT vs. Smt. Sita Devi Juneja (2010) 33 DTR (P&H)
201 : (2010) 187 Taxman 96 (P&H), Dy. CIT vs. Allied Leather Finishers (P) Ltd. (2009) 32 SOT 549
(Lucknow) and Asstt. CIT vs. VIP Industries Ltd. (2009) 122 TTJ (Mumbai) 289 : (2009) 21 DTR
(Mumbai)(Trib) 153 : (2009) 30 SOT 254 (Mumbai) applied
(Para 9.1)
Conclusion
Where assessee has not claimed any deduction of the expenditure in all the earlier assessment
years, merely because the assessee obtained benefit of deduction in the earlier years and balances
are carried forward in the subsequent year, would not prove that the trading liabilities of the
assessee have become nonexistent, therefore, provisions of s. 41(1)(a) have been wrongly applied
in the matter and the additions made by lower authorities had to be deleted.
In favour of
Assessee
Cases Referred to
Assam Pesticides & Agro Chemicals vs. CIT (1998) 145 CTR (Gau) 213 : (1997) 227 ITR 846 (Gau)
DSA Engineers (Bombay) vs. ITO (2009) 30 SOT 31 (Mumbai)
General Industries Corporation vs. ITO (1990) 37 TTJ (Del) 198 : (1990) 33 ITD 524 (Del)
Kesoram Industries & Cotton Mills Ltd. vs. CIT (1992) 196 ITR 845 (Cal)
L.H. Sugar Factory & Oil Mills (P) Ltd. vs. CIT (1980) 19 CTR (SC) 185 : (1980) 125 ITR 293 (SC)
Tirunelveli Motor Bus Service Co. (P) Ltd. vs. CIT (1970) 78 ITR 55 (SC)
Counsel appeared:
S.N.L. Agarwal, for the Appellant : Anil Kumar, for the Respondent
Bhavnesh Saini, J.M.
ORDER
All the appeals by the assessee are directed against different orders of the learned CIT(A)II,
Ahmedabad dt. 1st Oct., 2009 for the above assessment years.
2. In ITA No. 172/Ahd/2009 for asst. yr. 200607, the learned counsel for the assessee did not press
ground Nos. 4, 5 and 6, these grounds are accordingly dismissed being not pressed.
3. In all the appeals the assessee challenged the orders of the learned CIT(A) in confirming the
additions under s. 41(1)(a) of the IT Act on old and outstanding liabilities of Rs. 38,17,601, Rs.
1,60,090, Rs. 40,032 and Rs. 1,32,118 respectively observing that the said liability had ceased to
exist irrespective of the fact that the assessee had not written it off in its books of account. It is
further stated in the grounds of appeal that the learned CIT(A) erred in not considering that in the
regular assessment for the asst. yrs. 200203 and 200506, no addition was made in respect of
these liabilities.
4. We have heard the learned representatives of both the parties, perused the findings of the
authorities below and the materials available on record.
5. Briefly, the facts of the case are that the AO made the above additions in all the assessment
years respectively under s. 41(A) of the IT Act as cessation of liabilities. The AO made the additions
on the basis that the assessee had shown the liabilities in respect of the expenditure incurred during
the years but he has not given the details and addresses of the parties and thus are not verifiable,
hence, the liabilities claimed in respect of the expenditure incurred, has ceased and income is liable
to tax under s. 41(1) of the IT Act. The assessee submitted before the learned CIT(A) that these are
very old creditors and hence does not have PANs and confirmations of these parties. Further, there
was no remission or cessation of liabilities and in the books of account the assessee has not written
off these amounts. Hence, these are not covered under s. 41(1) of the IT Act. The assessee relied
upon the decisions in the cases of CIT vs. Prameshwar Bohra (2007) 208 CTR (Raj) 218 : (2008) 301
ITR 404 (Raj), CIT vs. Tamilnadu Warehousing Corpn. (2007) 212 CTR (Mad) 228 : (2007) 292 ITR
310 (Mad) and Natversingh Chauhan vs. ITO (Tribunal Ahmedabad Bench, order dt. 23rd Jan.,
2009). It was also submitted that the amount of Rs. 1,60,590 and Rs. 1,10,520 out of the amounts
pertaining to asst. yr. 200102 has been paid to Royal Engineering Works in financial year 200809.
Therefore, these amounts are not to be disallowed. The learned CIT(A) considering the submissions
of the assessee and material on record confirmed all the above additions. The findings of the
learned CIT(A) are similar in all the assessment years. The same is reproduced as under as is taken
from para 5.2 from ITA No. 169/Ahd/2007 :
"5.2 I have considered the facts and the submissions. I do not agree with the appellant’s view.
When the parties are not traceable and the expenditure is not verifiable, the addition has to be
made. When the liability itself is not to be paid as the party is not traceable, and the appellant has
claimed the expenses in the earlier years, the same has to be taxed under s. 41(1) of the IT Act
irrespective of the fact that the appellant has written it off or not. The ratios of the case laws relied
upon are not applicable as facts are different. In the case of Natversingh Chauhan vs. ITO, the
parties were existing but here, the parties are not traceable. In the case of CIT vs. Parmeshwar
Bohra, it was held that carry forward amount of previous year, did not become an investment or
cash credit generated during the year and cannot be assessed as income. Here the issue is
application of s. 41(1) for cessation of liabilities which is different. Further,
for the amount to be
paid to Royal Engineering Works, the party has not confirmed that this was the receipt of amount
relating to asst. yr. 200102. Hence, the additions are confirmed and this ground is rejected."
6. The learned counsel for the assessee reiterated the submissions made before the authorities
below. He has filed copies of the balance sheets of asst. yrs. 200001 to 200708 in the paper book
and demonstrated that on the same issue there was outstanding liability of Rs. 1,29,83,564 in asst.
yr. 200001 (paper book 2), which was reduced in the subsequent assessment years by making the
payments to the parties. The list of the parties is filed at p. 1 of the paper book and separate chart
is also filed. The learned counsel for the assessee, therefore, demonstrated that since it was old
liability in earlier years and outstanding balances/liabilities have been carried forward in
assessment years under appeal, therefore, no addition under s. 41(1) of the IT Act can be made. He
has submitted that it is admitted fact that all the above amounts in question under appeal pertain to
the earlier years in which the AO did not disputed genuineness of the expenditure and even
outstanding balances against names of several parties have also not been doubted by the AO in the
preceding assessment year in which outstanding balances were reflected in the balance sheet.
Therefore, opening balances of the existing liabilities in the assessment years in question cannot be
added under s. 41(1) of the IT Act. He has relied upon the following judgments in support of his
contentions :
(1) Tamilnadu Warehousing Corpn.’s case (supra);
(2) CIT vs. Smt. Sita Devi Juneja (2010) 33 DTR (P&H) 201 : (2010) 187 Taxman 96 (P&H);
(3) N.R. Chauhan’s case (supra);
(4) Dy. CIT vs. Allied Leather Finishers (P) Ltd. (2009) 32 SOT 549 (Lucknow);
(5) General Industries Corporation vs. ITO (1990) 37 TTJ (Del) 198 : (1990) 33 ITD 524 (Del);
(6) Prameshwar Bohra’s case (supra);
(7) Asstt. CIT vs. VIP Industries Ltd. (2009) 122 TTJ (Mumbai) 289 : (2009) 21 DTR (Mumbai)(Trib)
153 : (2009) 30 SOT 254 (Mumbai);
(8) DSA Engineers (Bombay) vs. ITO (2009) 30 SOT 31 (Mumbai).
The learned counsel for the assessee further submitted that the same details are also incorporated
by the AO at p. 12 of the assessment order in respect of which the assessee has filed details at
paper book 1 and the chart submitted during the course of arguments. The learned counsel for the
assessee further submitted that the amount of Rs. 1,60,590 is added in the asst. yr. 200203 is the
same amount which is reflected in the preceding asst. yr. 200102 in respect of the same party
namely Royal Engineering Works which is also added in the asst. yr. 200102, therefore, it would
amount to double addition in the asst. yr. 200203. The learned counsel for the assessee further
submitted that in asst. yr. 200304 the addition is made of Rs. 40,032 in respect of 3 parties namely
Sanjaya Spal, Ankit Engineering and Motilalji which are new liabilities in this assessment year under
appeal. Further in asst. yr. 200607 the liabilities of Rs. 1,32,118 pertain to Mahalaxmi Roadways
and Nihal Roadways which were debit balance in the asst. yr. 200506 which is also explained in the
chart filed for consideration. The learned counsel for the assessee, therefore, submitted that the AO
was not justified in applying provisions of s. 41(1) of the IT Act in those assessment years
particularly when the genuineness of the expenditure has not been doubted by the AO in respect of
these parties whose amounts were shown as liabilities in the balance sheet. Copies of the accounts
of the parties are filed in the paper book. The learned counsel for the assessee further submitted
that ultimately the income of the assessee is computed by the learned CIT(A) by applying the
provisions of s. 44AE of the IT Act. Therefore, no addition under s. 41(1) of the IT Act could be
made. He has relied upon the decision in the case of Tirunelveli Motor Bus Service Co. (P) Ltd. vs.
CIT (1970) 78 ITR 55 (SC). He has further submitted that once the income is computed under s.
44AE of the IT Act, provisions of s. 41(1) of the IT Act would not apply.
7. On the other hand, the learned Departmental Representative relied upon the orders of the
authorities below. The learned Departmental Representative submitted that the expenses were
claimed by the assessee in respect of outstanding liabilities in the earlier years and deductions have
been allowed. The learned Departmental Representative submitted that liabilities have however,
still existing in the books of the assessee being sundry creditors. The learned Departmental
Representative submitted that the assessee has failed to furnish addresses of the parties, their
PANs and confirmations of outstanding balances. The learned Departmental Representative
submitted that the AO because of the above facts found that the said trading liabilities have ceased
as no evidence and confirmation of existence of the parties have been filed. The learned
Departmental Representative submitted that since the assessee failed to produce relevant material
on record, therefore, adverse inference shall have to be drawn against the assessee. Therefore, the
AO would be justified in applying provisions of s. 41(1) of the IT Act because the issue would arise
as to on what date the liability is ceased. Since no proof is filed by the assessee, therefore, the
authorities below were justified in rejecting the claim of the assessee. The learned Departmental
Representative submitted that the AO has given a categorical finding that the assessee has claimed
certain deduction against the income earned during earlier year. Therefore, nonexisting liabilities
in the subsequent year would amount to cessation of liabilities. The learned Departmental
Representative submitted that since the assessee has not paid any amount towards outstanding
liabilities for several years and carried forward the balances to the assessment years under appeal,
it would prove intention of the assessee that the assessee has no longer wanted to pay off the
debts. The learned Departmental Representative relied upon the decision of the Hon’ble Calcutta
High Court in the case of Kesoram Industries & Cotton Mills Ltd. vs. CIT (1992) 196 ITR 845 (Cal) in
which it was held that "unclaimed wages written back in the P&L a/c is assessable under IT Act".
The learned Departmental Representative submitted that burden is upon the assessee to prove that
the details filed in the return of income is true and correct. The learned Departmental
Representative relied upon the decision of the Hon’ble Supreme Court in the case L.H. Sugar Factory
& Oil Mills (P) Ltd. vs. CIT (1980) 19 CTR (SC) 185 : (1980) 125 ITR 293 (SC) in which it was held
that "when expenses were not wholly and exclusively laid out for the purpose of assessee’s business
same is not allowable deduction". The learned Departmental Representative also relied upon the
decision of the Hon’ble Gauhati High Court in the case of Assam Pesticides & Agro Chemicals vs. CIT
(1998) 145 CTR (Gau) 213 : (1997) 227 ITR 846 (Gau) in which it was held that "payment of
commission not made out of commercial consideration not allowable deduction". The learned
Departmental Representative submitted that the figures given in the chart filed by the assessee’s
counsel shows that the figures are static in asst. yr. 200102 as compared with earlier year and no
amount is paid. The learned Departmental Representative submitted that there is no movement in
any of the years, therefore, by applying the principle of preponderance of probabilities which is
applicable to the IT Act, it could be reasonably inferred that the assessee has no intention to make
the payment against the outstanding liabilities. The learned Departmental Representative submitted
that the assessee has not made any offer to pay the parties. Similarly, no effort is made by the
parties whose outstanding balances are reflected in the balance sheet of the assessee to make
recovery against the assessee. Therefore, these are squared up liabilities and should be treated as
liabilities against unknown parties for which no evidence has been filed. Therefore, provisions of s.
41(1) of the IT Act have been rightly applied in the matter. The learned Departmental
Representative submitted that since the assessee claimed deduction, therefore, onus is upon the
assessee to prove that deduction is admissible for the purpose of the business. The learned
Departmental Representative in his concluding submissions submitted that the assessee has no
liabilities to make the payment as on date. The assessee has no evidence whatsoever to back up its
claim and he failed to produce the creditors before the AO for verification. Therefore, it is clear that
liability to make the payment to the outstanding creditors has ceased. Therefore, addition was
rightly made under s. 41(1)(a) of the IT Act.
8. We have considered the rival submissions and material available on record. Sec. 41(1)(a) of the
IT Act reads as under :
"41. (1) Where an allowance or deduction has been made in the assessment for any year in respect
of loss, expenditure or trading liability incurred by the assessee (hereinafter referred to as the first
mentioned person) and subsequently during any previous year,—
(a) the firstmentioned person has obtained, whether in cash or in any other manner whatsoever,
any amount in respect of such loss or expenditure or some benefit in respect of such trading
liability by way of remission or cessation thereof, the amount obtained by such person or the value
of benefit accruing to him shall be deemed to be profits and gains of business or profession and
accordingly chargeable to incometax as the income of that previous year, whether the business or
profession in respect of which the allowance or deduction has been made is in existence in that year
or not; or."
8.1 Hon’ble Madras High Court in the case of Tamilnadu Warehousing Corpn. (supra) held as under :
"The assessee filed its return for the asst. yr. 198990 and assessment completed under s. 143(3)
of the IT Act, 1961. The assessee had surrendered the Group Gratuity Scheme with LIC and received
a sum of Rs. 8,22,925 during the year relevant to the asst. yr. 198990. As there was no proper
enquiry made by the AO in the assessment completed on 21st Jan.,1992, the CIT passed order
under s. 263 of the Act and set aside the assessment with a direction to the AO to assess the said
amount under s. 41(1) of the Act for the asst. yr. 198990. The Tribunal set aside the order of the
CIT. On appeal to the High Court :
Held, that the assessee had continued to show the admitted amount of Rs. 8,22,925 as liability in
the balance sheet. The undisputed fact was that it was a liability reflected in the balance sheet.
Once it was shown as liability by the assessee, the CIT was wrong in holding that it was assessable
under s. 41(1) of the Act. Unless and until there is a cessation of liability, s. 41 is not applicable."
8.2 Hon’ble Punjab and Haryana High Court in the case of Smt. Sita Devi Juneja (supra) held as
under :
"It is the conceded position that in the assessee’s balance sheet the aforesaid liabilities have been
shown, which are payable to the sundry creditors. Such liabilities, shown in the balance sheet,
indicate the acknowledgement of the debts payable by the assessee. Merely because, such liability
is outstanding for the last six years, it cannot be presumed that the said liabilities have ceased to
exist. It is also conceded position that there is no bilateral act of the assessee and the creditors,
which indicates that the said liabilities have ceased to exist. In absence of any bilateral act, the said
liabilities could not have been treated to have ceased."
8.3 Tribunal Ahmedabad Bench in the case of N.R. Chauhan (supra) held as under :
"The learned counsel for the assessee specifically drawn our attention to the account copies and
stated that these are outstanding as on date and this amount are not written off in the books of
account. Accordingly, the same cannot be added under s. 41(1) of the Act as the liability of
outstanding and the parties are in existence. We are in full agreement with the argument of the
learned counsel for the assessee, as is seen from the documents and papers filed before us that the
parties do exist and these amounts are outstanding in the books of the assessee as payable. In view
of these facts and circumstances, we feel that these amounts cannot be added either under s. 68 or
41(1) of the Act. We delete the addition and this issue of the assessee’s appeal is allowed."
8.4 Tribunal Lucknow Bench in the case of Allied Leather Finishers (P) Ltd. (supra) held as under :
"21.7 A liability could not be treated as a cessation if it was being merely carried forward for years.
A nongenuine nontrading liability standing in the balance sheet can be taxed but under s. 68 if it
came in the books in the current year. If such nongenuine nontrading liability came in the books in
an earlier year than same cannot be taxed in the current year even under s. 68. A nongenuine
trading liability can be considered in the current year if it is related to current year’s
trading/manufacturing or P&L a/c but not under s. 41(1) or under s. 68. It can be considered only
under s. 28, i.e., it can be considered for disallowance while examining the claim of expenses or
out goings against revenue receipts. Current year’s genuine trading liabilities, waved/remitted or
ceased to exist in the current year itself will not form part of trading/manufacturing or P&L a/c
except a note appended to them as disclosure of information.
21.10 Even in a case where a liability ceased to exist due to limitation, i.e., the claim of the
creditor is barred by limitation under Limitation Act of 1963 but if the liability subsist or has not
been written off by the assessee, or the assessee does not absolve himself from the liability,
though not legally enforceable, it cannot be taxed under s. 41(1)."
8.5 The Hon’ble Rajasthan High Court in the case of Prameshwar Bohra (supra) has held as under :
"The assessee on the first day of the previous year relevant to the asst. yr. 199394, i.e., on 1st
April, 1992, credited an amount of investment/cash credit of Rs. 1,55,316 in his books of account.
The AO added this amount in the income of the assessee as unexplained investment in the asst. yr.
199394. The Tribunal held that this was not a case of cash credit entered in the books of account of
the assessee during the year but it was a case in which the assessee had invested the capital in the
business and this amount was shown as a closing capital as on 31st March, 1992 and on 1st April,
1992, it was an opening balance. Therefore the Tribunal held that what was already credited in the
books of account ending on 31st March, 1992, for financial year 199192 relevant to asst. yr. 1992
93 could not be unexplained cash credit or investment in the books of account maintained for the
financial year 199293, the accounting period for which ended on 31st March, 1993. On appeal :
Held, dismissing the appeal, that the carried forward amount of the previous year did not become
an investment or cash credit generated during the relevant year 199394. This alone was sufficient
to sustain the order of the Tribunal in deleting the amount of Rs. 1,55,316 from the assessment for
the asst. yr. 199394."
8.6 Tribunal Mumbai Bench in the case of VIP Industries Ltd. (supra) held as under :
"Sec. 41(1) is attracted when there is cessation for remission of a trading liability. Simply because
a period of three years has expired and the creditor cannot lawfully enforce
his claim,
it does
not
mean that there is a cessation or remission of liability. There may be several situations when the
money is not claimed or paid by one party to another within three years and thereafter the claim is
made and honoured by the other. So, simply because a particular amount is outstanding for a
period of more than three years, that does not constitute income under s. 41(1)."
9. Considering the facts of the case in the light of the above provisions and the decision referred to
above, it is clear that the expenditure claimed as deduction in the earlier year have not been
disallowed in the earlier year in which they were claimed. Even the AO in the earlier year has not
doubted the existence of the parties. The learned counsel for the assessee filed copies of balance
sheet of the all years under appeal, as well as proceedings earlier assessment years which prove
that the outstanding liabilities from earlier years were carried forward to the assessment years
under appeal starting from asst. yr. 200102. The liabilities in asst. yr. 200001 were in a sum of
Rs. 1,29,83,564. The particulars of those parties against whom the liabilities were shown is
mentioned at paper book 3, 4 and 5. The same parties continued in the asst. yr. 200102 under
appeal but the balances of some of the parties have reduced which would show that part payments
have been made to them. The above facts would show that the liabilities shown in the balance sheet
in the assessment year under appeal, i.e., 200102 which are opening balances which are carried
forward for the preceding assessment year. The liabilities have been shown in the balance sheet of
the assessee which would show that the assessee acknowledged the liabilities of the outstanding
amounts. The balances were thus carried forward from earlier years. In asst. yr. 200203, the AO
made addition of Rs. 1,60,590 in respect of Royal Engineering Work whose balance was also
outstanding in the asst. yrs. 200001 and 200102. It would, therefore, show that similar addition is
made in the asst. yr. 200203 which would amount to double addition in respect of the same party.
In asst. yr. 200304 the AO made addition of Rs. 40,032 in respect of Sanjay Spal, Rs. 32, Ankit
Engineering Rs. 20,000 and Motilalji Rs. 20,000. These amounts were not carried forward from
earlier years as per the details filed in the paper book. It would show that these are the current
liabilities of the assessee in the asst. yr. 200304. Similarly, in asst. yr. 200607 the AO made
addition of Rs. 1,32,118 in respect of amount of Rs. 45,409 and Rs. 86,709 in respect of Mahalaxmi
Roadways and Nihal Roadways. These were the credit balances in the assessment year under
appeal which were carried forward in the preceding asst. yr. 200506 and in that year there were
debit balances against these parties as per the details submitted by the learned counsel for the
assessee. These facts would show that the authorities below have not applied their mind to the facts
of the case that these are not the fit cases for invoking the provisions of s. 41(1) of the IT Act in the
matter as done by the AO.
9.1 Considering the facts of the case as noted above it is clear that the assessee had continued to
show the admitted amounts as liabilities in its balance sheet. The liabilities reflected in the balance
sheet cannot be treated as cessation of liabilities. Merely because the liabilities are outstanding for
last many years, it cannot be inferred that the said liabilities have ceased to exist. It is also a fact
that the assessee has not written off the outstanding liabilities in the books of account and the
outstanding liabilities are still in existence would prove that the assessee acknowledged his
liabilities as per the books of account. s. 41(1) of the IT Act is attracted when there is cessation or
remission of a trading liability. The AO shall have to prove that the assessee has obtained the
benefits in respect of such trading liabilities by way of remission or cessation thereof. Merely
because the assessee obtained benefit of deduction in the earlier years and balances are carried
forward in the subsequent year, would not prove that the trading liabilities of the assessee have
become nonexistent. It may also be noted here that the assessee has not claimed any deduction of
the expenditure in all the assessment years under appeal. The decisions cited by the learned
counsel for the assessee squarely apply to the facts of the case. Therefore, we are of the view that
provisions of s. 41(1)(a) of the IT Act have been wrongly applied in the matter. We may also note
here that the learned counsel for the assessee has filed details of particulars of payments of
liabilities in subsequent years which are in the nature of adjustment through journal entry, cash
payment and some payments by banking channel. The learned Departmental Representative
objected to the filing of such details at this stage and further submitted that the payment by cash
and journal entry would not prove genuineness of the payments. We do not agree with the
submission of the learned Departmental Representative because those details were called for by the
Bench during the course of hearing and even payment by cheques and/or journal entry would not
absolve the AO for making out a case under s. 41(1)(a) of the IT Act. The last contention of the
learned counsel for the assessee was that since income of the assessee is computed under s. 44AE
of the IT Act, therefore, provisions of s. 41(1) of the IT Act would not apply. However, considering
the finding given above that provisions of s. 41(1) would not apply to the facts and circumstances of
the case; there is no need to give further findings on this issue.
10. On consideration of the above discussion, we find that the authorities below were not justified in
making the additions against the assessee in all the assessment years under appeal of the above
amounts with the aid of s. 41(1)(a) of the IT Act. As a result, we set
aside
the
orders the
of
authorities below and delete the entire additions.
11. In view of the above findings, the decisions cited by the learned Departmental Representative
would not support the case of the Revenue.
12. As a result, these grounds of appeal of the assessee in all the appeals are allowed.
13. In the result, the appeals of the assessee in ITA Nos. 169, 170 and 171/Ahd/2009 are allowed
whereas the appeal of the assessee in ITA No. 172/Ahd/2009 is partly allowed.
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