KAMDHENU INDUSTRIES LTD., Jaipur V. DCIT, Alwar

ITA 167/JPR/2014

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 87555 (ITAT-JAIPUR)
• Duration Of Justice: 1 year(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 04-03-2015
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: B
• Assessment Year: 2007-2008
• Appeal Filed On: 04-03-2014
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: MEENA CIT DHK
• Keywords: Non compliance
• Section: 143(3); 133A; 153A; 132

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHES (SMC), JAIPUR JH EQDQY DS-JKOR] U;KF;D LNL; DS LE{K BEFORE: SHRI MUKUL K. SHRAWAT, JUDICIAL MEM BER VK;DJ VIHY LA-@ ITA NO. 167/JP/2014 FU/KZKJ.K O'K Z@ ASSESSMENT YEAR : 2007-08. M/S. KAMDHENU INDUSTRIES LTD., 5/2, PUNJABI BAGH EXTEN., CLUB ROAD, DELHI. CUKE VS. THE DCIT, CENTRAL CIRCLE, ALWAR. LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN/GIR NO.: AABCK 3370 P VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT FU/KZKFJRH DH VKSJ LS@ ASSESSEE BY : NONE JKTLO DH VKSJ LS@ REVENUE BY : SHRI M.S. MEENA (CIT) LQUOKBZ DH RKJH[K@ DATE OF HEARING : 01/03/2016 ?KKS'K .KK DH RKJH[K@ DATE OF PRONOUNCEMENT : 04/03/2016. VKNS'K@ ORDER PER MUKUL K. SHRAWAT, JM : THIS IS AN APPEAL FILED BY THE ASSESSEE EMANATING FROM THE ORDER OF LD. CIT (APPEALS), ALWAR DATED 21.01.2014. THE GROUNDS RAIS ED ARE AS UNDER :- 1. UNDER THE FACTS AND CIRCUMSTANCES OF THE CASE THE A SSESSING OFFICER HAS ERRED IN FRAMING THE ASSESSMENT ORDER U/S 143(3 )/153A OF INCOME TAX ACT, 1961 WHICH IS VOID AB-INITIO AND BAD IN LA W DESERVES TO BE QUASHED. 2. UNDER THE FACTS AND CIRCUMSTANCES OF THE CASE THE A SSESSING OFFICER HAS ERRED IN CONFIRMING THE ADDITION OF RS 1,22,715 /- ON ACCOUNT OF UNDISCLOSED COMMISSION/INTEREST PAYMENT WITHOUT CON SIDERING THE SUBMISSION OF THE ASSESSEE. 2 ITA NO. 167/JP/2014 M/S. KAMDHENU INDUSTRIES LTD. VS. DCIT. 2. ON THE DATE OF HEARING, NO ONE HAS APPEARED FROM THE SIDE OF THE APPELLANT. RECORDS OF THIS APPEAL HAVE ALSO MENTIONED THAT IN THE PAST AS WELL THERE WAS NON COMPLIANCE. CONSIDERING THE SMALLNESS OF ISSUE, IT IS HEREBY DECIDED TO PROCEED EX- PARTE QUA THE ASSESSEE AFTER HEARING LD. D/R SHRI M .S. MEENA, CIT WHO HAS PLACED RELIANCE ON THE ORDERS OF THE REVENUE AUTHORITIES. 3. APROPOS GROUND NO. 1, AN ASSESSMENT WAS MADE UND ER SECTION 143(3) READ WITH SECTION 153A DATED 30.12.2011. THE AO HAS MENTIONE D THAT A SEARCH UNDER SECTION 132 AS WELL A SURVEY UNDER SECTION 133A WAS CARRIED OUT ON KAMDHENU GROUP ON 17.09.2008. IT HAS ALSO BEEN MENTIONED THAT DURING THE COURSE OF SEARCH CASH, JEWELLERY, STOCKS, DOCUMENTS ETC. WERE FOUND AND AL SO SEIZED. A NOTICE UNDER SECTION 153A DATED 13.09.2010 WAS ISSUED AND IN COMPLIANCE, A RETURN WAS FILED DECLARING INCOME OF RS. 755,660/- ON 22.10.2010. THE ASSESSE E IS STATED TO BE IN THE BUSINESS OF TRADING OF IRON AND STEEL. ABOUT THE LEGALITY OF TH E ORDER PASSED BY THE AO AS CHALLENGED IN GROUND NO. 1, IT IS WORTH TO MENTION THAT VIDE P ARA 4.2 PAGE 3 LD. CIT (A) HAS CATEGORICALLY MENTIONED THAT THE LEGAL ISSUE CHALLE NGING THE VALIDITY OF THE ASSESSMENT ORDER WAS NOT PRESSED. THEREFORE, THE LD. CIT (A) H AS DISMISSED THE SAID GROUND. IT IS VERY STRANGE THAT ON ONE HAND THE ASSESSEE HAD PREF ERRED NOT TO CHALLENGE THE VALIDITY OF THE ASSESSMENT ORDER BEFORE LD. CIT (A) BUT ON T HE OTHER HAND NOW AGAIN RAISING THIS GROUND BEFORE THE TRIBUNAL. SUCH A CONDUCT OF AN AP PELLANT CANNOT BE ENCOURAGED. AS A RESULT, GROUND RAISED IN THIS REGARD IS HEREBY DI SMISSED. 4. APROPOS GROUND NO. 2, THE ALLEGATION OF THE AO W AS THAT A DOCUMENT WAS SEIZED MENTIONING A PAYMENT OF COMMISSION OF RS. 1,22,715/ - DATED 23.07.2006 BUT THAT 3 ITA NO. 167/JP/2014 M/S. KAMDHENU INDUSTRIES LTD. VS. DCIT. PAYMENT WAS NOT REFLECTED IN THE REGULAR BOOKS OF A CCOUNT. BECAUSE THE PAYMENT IN QUESTION WAS NOT FOUND RECORDED IN THE REGULAR BOOK S OF ACCOUNT OF THE ASSESSEE, HENCE THE ADDITION WAS MADE BY THE AO. 5. WHEN THE MATTER WAS CARRIED BEFORE THE FIRST APP ELLATE AUTHORITY, THE EXPLANATION OF THE ASSESSEE WAS THAT NO ENQUIRY WHATSOEVER WAS MADE TO ESTABLISH THE ASSESSEES LINK WITH THE SEIZED PAPER AS WELL AS THE BUSINESS OF THE ASSESSEE. THE AO HAD MADE THE ADDITION MERELY ON THE BASIS OF A APPRAISAL R EPORT . NO POST SEARCH ENQUIRY HAD BEEN CONDUCTED BY THE AO. THE ALLEGATION OF THE AS SESSEE WAS THAT THERE WAS A MENTION OF CERTAIN NAMES OF ONE SHRI A. AGARWAL AND SHRI KRISHNA. HOWEVER, THOSE WERE NOT CONNECTED WITH THE BUSINESS ACTIVITY OF TH E ASSESSEE. EVEN THE WRITER OF THE SAID PAPER REMAINED UN-EXAMINED. THE ASSESSEE HAD T RIED TO EXPLAIN THAT THE PAPER IN QUESTION WAS APPARENTLY A LEDGER ACCOUNT OF ONE SHR I A. AGARWAL IN THE BOOKS OF ANOTHER PERSON, NAMELY SHRI KRISHNA. IT HAS ALSO B EEN PLEADED THAT THE AO HAD IGNORED THAT THERE WAS AN ENTRY ON THE SAID PAPER ITSELF TH ROUGH WHICH IT WAS REVERSED. HOWEVER, THE LD. CIT (A) WAS NOT CONVINCED AND IN H IS OPINION, THE PRIMARY ONUS WAS NOT DISCHARGED BY THE ASSESSEE ESPECIALLY THE PRESU MPTION IS THAT THE PAPER OR DOCUMENT BELONGED TO THE PERSON IN WHOSE POSSESSION IT WAS RECOVERED. ONE MORE FINDING HAS BEEN GIVEN THAT PART OF THE NOTING REFL ECTED IN THE SAID PAPER WERE RELATED TO THE BANK TRANSACTIONS WHICH WERE FOUND REFLECTED IN THE BOOKS OF ACCOUNT OF THE ASSESSEE. HENCE THERE WAS NO LOGIC TO IGNORE REST O F THE NOTING ON THE SAID SIZED PAPER. THE LD. CIT (A) HAS HELD THAT THE IMPUGNED CASH TRA NSACTION AS WELL BELONGED TO THE ASSESSEE, THEREFORE, RIGHTLY TAXED BY THE AO. 4 ITA NO. 167/JP/2014 M/S. KAMDHENU INDUSTRIES LTD. VS. DCIT. 6. AFTER PERUSING THE ORDERS OF THE AUTHORITIES BEL OW, IT IS EVIDENT THAT THE ASSESSEE HAS PREFERRED WRITTEN SUBMISSIONS ONLY INSTEAD OF A PPEARING PERSONALLY OR THROUGH HIS REPRESENTATIVE. IN THE WRITTEN SUBMISSIONS, THE AR GUMENT IS THAT THE ADDITION WAS MADE MERELY ON AN APPRAISAL REPORT AND THAT NO LINK WAS ESTABLISHED OF THE SEIZED PAPER WITH THE BUSINESS OF THE ASSESSEE. HOWEVER, CONSIDERING THE UNDISPUTED FACT THAT THE PAPERS IN QUESTION WERE RECOVERED AT THE TIME OF THE SEARC H AND THOSE PAPERS WERE IN RESPECT OF COMMISSION NOT FOUND RECORDED IN THE REGULAR BOO KS OF ACCOUNT OF THE ASSESSEE AND THAT REST OF THE NOTINGS ON THE SAID DOCUMENT WERE FOUND RECORDED IN THE BOOKS OF ACCOUNT OF THE ASSESSEE BEING TRANSACTION MADE THRO UGH BANK, HENCE IT IS VERY MUCH JUSTIFIABLE TO HOLD THAT THE TRANSACTION RECORDED I N THE SAID DOCUMENT WAS HAVING THE CONNECTION WITH THE BUSINESS OF THE ASSESSEE. THE APPRAISAL REPORT IS NOTHING BUT THE REPORT ON THE APPRECIATION OF THE FACTS OF THE CASE FOUND AFTER THE SEARCH. THEREFORE, BEING A NORMAL ASSESSMENT PROCEDURE, HENCE NO LEGAL INFIRMITY HAD HAPPENED IN CONSIDERING THE APPRAISAL REPORT BY THE AO. I, THE REFORE, HOLD THAT THE REVENUE AUTHORITIES WERE JUSTIFIED IN TAXING THE SAID AMOUN T IN THE HANDS OF THE ASSESSEE. GROUND IS REJECTED. 7. IN THE RESULT, APPEAL IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 04/03/201 6. SD/- EQDQY DS-JKOR (MUKUL K. SHRAWAT) U;KF;D LNL;@ JUDICIAL MEMBER TK;IQJ@ JAIPUR FNUKAD@ DATED:- 04/03/2016. DAS/ 5 ITA NO. 167/JP/2014 M/S. KAMDHENU INDUSTRIES LTD. VS. DCIT. VKNS'K DH IZFRFYFI VXZSF'KR@ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ@ THE APPELLANT- M/S. KAMDHENU INDUSTRIES LTD., DELHI . 2. IZR;FKHZ@ THE RESPONDENT- THE DCIT CENTRAL CIRCLE, ALWRAR. 3. VK;DJ VK;QDRVIHY@ CIT(A). 4. VK;DJ VK;QDR@ CIT, 5. FOHKKXH; IZFRFUF/K] VK;DJ VIHYH; VF/KDJ.K] T;IQJ@ DR, ITAT, JAIPUR 6. XKMZ QKBZY@ GUARD FILE (ITA NO.167/JP/2014) VKNS'KKUQLKJ@ BY ORDER, LGK;D IATHDKJ@ ASSISTANT. REGISTRAR 6 ITA NO. 167/JP/2014 M/S. KAMDHENU INDUSTRIES LTD. VS. DCIT.