COMMISSIONER OF INCOME TAX Vs. ALPHA TOYO LTD.

JUDGEMENT

(1.) THE Revenue has filed the present appeal under s. 260A of the IT Act (for short "the Act") against the order dt. 22nd raising the following substantial questions of law for consideration of this Court :

(2.) THE assessee is a company. It manufactures switches. In the assessment order passed for the asst. yr. 1990 -91 under s. 143(3) of the Act, the AO made an addition of Rs. 19,71,000 by invoking the provisions of s. 40A(3) of the Act. The assessee had made cash payments to M/s Asahi Alfa Ltd., M/s Niko Auto Ltd. and M/s Toyo Mirrors (P) Ltd. The disallowance made by the AO was confirmed by the CIT(A). On further appeal by the assessee to the Tribunal the issue was remanded to the AO for a fresh adjudication. Before the Tribunal the assessee took a plea that the payment of Rs. 19.71 lakhs made to three parties which were disallowed by invoking s. 40A(3) were expenditure of capital nature and therefore was not covered under the provisions of s. 40A(3) of the Act. On such submissions the Tribunal remanded the matter to the AO for fresh adjudication.

(3.) ON such remand by the Tribunal the AO again took up the issue of disallowance under s. 40A(3) of the Act for consideration. The assessee explained in the remand proceedings that the cash payments were made to the parties in question in respect of amounts standing as due and payable to them towards advances and that none of these payments was on account of revenue expenditure debited in the P&L a/c. The assessee also explained that the recipients of these payments had to make payment of dues to the Government, like excise duty, sales -tax and payment to workers. The necessary copies of the accounts of the recipient companies and the books of accounts of the assessee were produced before the AO. According to the AO there were several cuttings and overwritings and erasers in the accounts and vouchers. He therefore, concluded that the entries in the books of accounts were manipulated. He therefore, concluded that the assessee failed to establish that the cash payments were made for capital expenditure or for repayment of loans. He therefore upheld the disallowance which were made in the original assessment proceedings.