M/s. J&K Dairy Producers, Jammu V. The Income-tax Officer, Jammu

ITA 486/ASR/2013

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 8875 (ITAT-AMRITSAR)
• Duration Of Justice: 2 year(s) 6 month(s) 27 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 05-02-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 02-12-2015
• Assessment Year: 2005-2006
• Appeal Filed On: 08-07-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: K V K SINGH
• Assessee Lawyers: SSH SUDHIR SEHGAL
• Keywords: Non-deduction of tax; Corroborative evidences; Documents seized
• Section: 69C; 143(3); 131

Judgement Text

ITA NO.486(ASR)/2013 ASSTT. YEAR : 2005-06 1 IN THE INCOME TAX APPELLATE TRIBUNAL, AMRITSAR BENCH; AMRITSAR (JAMMU : CAMP) BEFORE SH. A.D. JAIN, JUDICIAL MEMBER AND SH. T.S. KAPOOR, ACCOUNTANT MEMBER ITA NO.486 (ASR)/2013 ASSESSMENT YEAR:2005-06 PAN: M/S. J & K DAIRY PRODUCERS, PROCESSORS VS. INCOME T AX OFFICER, AND MARKETING CO-OPERATIVE UNION LTD., WARD 1(1), JAMMU. GANDHI NAGAR, JAMMU. (APPELLANT) (RESPONDENT) APPELLANT BY:S/SH. SUDHIR SEHGAL & VIJAY GUPTA, RESPONDENT BY:SH. K.V.K. SINGH DATE OF HEARING: 02/12/2015 DATE OF PRONOUNCEMENT: 05/02/2016 ORDER PER A.D. JAIN, JM: THIS IS THE ASSESSEES APPEAL FOR THE ASSESSMENT Y EAR 2005-06, AGAINST THE ORDER DATED 15.05.2013, PASSED BY THE L D. CIT(A). THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS OF APPEAL : 1. THAT THE WORTHY CIT(A) HAS ERRED IN NOT ACCEPTI NG THE REMAND REPORT SUBMITTED BY THE AO VIDE LETTER DATED 05.04.2013 WHEREIN THE LD. AO CATEGORICALLY SUBMITT ED THAT NO COMMISSION WAS PAID BY THE ASSESSEE SOCIETY. 2. THAT THE WORTHY CIT(A) HAS ERRED IN CONFIRMING T HE ADDITION OF RS.18,33,681/- WHICH IS NEITHER FORMING PART OF THE BOOKS OF ACCOUNTS OF THE ASSESSEE NOR PAID BY THE ASSESSE E. 3. THAT THE WORTHY CIT(A) HAS ERRED IN NOT DISCHARG ING HIS OBLIGATIONS AS PER THE DIRECTIONS OF THE HONBLE IT AT AMRITSAR ITA NO.486(ASR)/2013 ASSTT. YEAR : 2005-06 2 AND HAS NOT CONSIDERED THE SUBMISSIONS MADE BEFORE HIM AND, AS SUCH, THERE IS DENIAL OF JUSTICE. 2. THE FACTS ARE THAT THE ASSESSEE IS A CO-OPERATIV E SOCIETY ENGAGED IN TRADING OF MILK. IT PROCURES MILK FROM ITS MEMBE RS AND SUPPLIES IT BY ADDING PROFIT ELEMENT. THE ASSESSEE FILED RETURN OF INCOME REFLECTING GROSS TOTAL INCOME OF RS.11,748/- FOR THE YEAR UNDER CONS IDERATION. THE AO, VIDE ORDER DATED 12.12.2007, MADE ADDITION ON ACCO UNT OF DISALLOWANCE OF COMMISSION AMOUNTING TO RS.18,65,966/-. THE AO M ADE THIS DISALLOWANCE FOR NON-DEDUCTION OF TDS ON COMMISSION U/S 40(A)(IA) OF THE I.T. ACT, 1961. 3. THE LD. CIT(A) VIDE ORDER DATED 15.07.2008, ALL OWED THE ASSESSEES APPEAL AGAINST THE AFORESAID ADDITION. THE TRIBUNA L, HOWEVER, VIDE ORDER DATED 22.07.2009 REMITTED THE MATTER TO THE AO OBS ERVING THAT THOUGH THE AO HAD, WHILE MAKING THE ADDITION RELIED ON THE MATERIAL IMPOUNDED DURING THE SURVEY PROCEEDINGS, THE ALLEGED RECIPIEN T OF THE COMMISSION HAD NOT BEEN EXAMINED. VIDE ORDER DATED 30.1.2010, THE AO MADE AN ADDITION OF RS.18,45,429/- (18,33,681/- U/S 40(A)( IA) + 11,748/- - RETURNED INCOME). 4. BY VIRTUE OF THE IMPUGNED ORDER DATED 15.05.2013 , THE LD. CIT(A) DISMISSED THE APPEAL FILED BY THE ASSESSEE. 5. THE LD. COUNSEL FOR THE ASSESSEE HAS CONTENDED T HAT THE LD. CIT(A) HAS ERRED IN NOT ACCEPTING THE REMAND REPORT SUBMIT TED BY THE AO VIDE LETTER DATED 05.04.2013 WHEREIN THE AO HAD CATEGOR ICALLY SUBMITTED THAT ITA NO.486(ASR)/2013 ASSTT. YEAR : 2005-06 3 NO COMMISSION WAS PAID BY THE ASSESSEE SOCIETY. HE FURTHER SUBMITTED THAT THE LD. CIT(A) WAS NOT JUSTIFIED IN CONFIRMIN G THE ADDITION OF RS.18,33,681/- WHICH WAS NEITHER FORMING PART OF TH E BOOKS OF ACCOUNT OF THE ASSESSEE, NOR PAID BY THE ASSESSEE. THE ASSE SSEES COUNSEL HAS ALSO SUBMITTED THAT THE CIT(A) ERRED IN NOT DISCH ARGING HIS OBLIGATIONS AS PER THE DIRECTIONS OF THE TRIBUNAL AND HAD NOT C ONSIDERED THE SUBMISSIONS MADE BEFORE HIM AND, AS SUCH, THERE WAS DENIAL OF JUSTICE. 6. IT WAS FURTHER SUBMITTED THAT IN THE REMAND REP ORT, THE AO HAD CATEGORICALLY STATED HAVING FOUND THAT NO COMMISSIO N WAS PAID BY THE ASSESSEE DURING THE YEAR; THAT THIS REMAND REPORT H AS ILLEGALLY NOT BEEN CONSIDERED BY THE LD. CIT(A). ATTENTION HAS BEEN DR AWN TO APB-2, I.E., THE ASSESSEES TRADING AND PROFIT & LOSS ACCOUNT FOR TH E YEAR UNDER CONSIDERATION, WHEREIN, NO SUCH COMMISSION HAS BEEN SHOWN. IT HAS BEEN SUBMITTED THAT OUT OF THE PURCHASE PRICE, PAYM ENT WAS MADE TO THE OFFICE HOLDERS OF THE SOCIETY. IT HAS BEEN FURTHER SUBMITTED THAT THE ASSESSEES PURCHASE PRICE AT RS.57,889,643/- HAS NO T BEEN CHALLENGED. 7. THE LD. DR, ON THE OTHER HAND, HAS PLACED STRONG RELIANCE ON THE IMPUGNED ORDER. ATTENTION HAS ALSO BEEN DRAWN TO T HE ASSESSMENT ORDER DATED 30.12.2010, WHEREIN, IN PARA-3, IN RESPONSE T O THE AOS QUESTION ASKING THE CA OF THE ASSESSEE TO EXPLAIN THE NATURE OF THE COMMISSION PAID BY THE ASSESSEE ON PURCHASE OF MILK FROM OTHER CO-OPERATIVE SOCIETIES, THE ASSESSEE HAD SUBMITTED THAT IT HAD M AINTAINED A MANUAL PURCHASE REGISTER, IN WHICH, THE AMOUNT OF RS.18,33 ,681/-, REPRESENTING ITA NO.486(ASR)/2013 ASSTT. YEAR : 2005-06 4 COMMISSION PAID HAD BEEN SEPARATELY REFLECTED ALONG WITH PURCHASES BEING THE AMOUNT PAID TO THE PERSON WHO COLLECTED T HE MILK FROM THE VARIOUS PARTIES ON BEHALF OF THE ASSESSEE; THAT IN THE OPINION OF THE ASSESSEE, THIS AMOUNT TANTAMOUNTED TO PAYMENT ON AC COUNT OF COMMISSION TO PARTIES WHO HAD COLLECTED THE MILK ON BEHALF OF THE ASSESSEE; THAT THEREFORE, THE SAME AS QUALIFIED IN THE TAX AUDIT REPORT ISSUED BY THE CA ON ACCOUNT OF NON-DEDUCTION OF TAX AT SOURCE; THAT THE SAME HAD BEEN INCORPORATED IN THE NOTES TO ACCOUNT ANNEXED TO THE BALANCE SHEET OF THE ASSESSEE; THAT THIS SEGREGATIO N OF COMMISSION AND PURCHASE HAD BEEN DONE ONLY IN THE MANUAL REGISTER (PURCHASE) BUT NO SUCH SEGREGATION WAS DONE IN THE COMPUTERIZED BOOKS OF ACCOUNT. THE LD. DR HAS CONTENDED THAT THE CA OF THE ASSESSEE HAD HIMSELF ADMITTED IN THE STATEMENT RECORDED U/S 131 OF THE ACT, THE F ACTUM OF THE PAYMENT OF COMMISSION BY THE ASSESSEE. 8. WE HAVE HEARD THE RIVAL CONTENTIONS AND HAVE PER USED THE MATERIAL AVAILABLE ON RECORD. THE TRIBUNAL, VIDE ORDER DATED 22.07.2009, OBSERVED THAT THE AO RELIED ON THE STATEMENT OF SH. NEERAJ G OEL, CA OF THE ASSESSEE, RECORDED U/S 131 OF THE ACT, THE TAX AUDI T REPORT AND ON THE DOCUMENTS IMPOUNDED IN THE COURSE OF SURVEY, REFLE CTING THAT THE PAYMENTS WERE MADE TO VARIOUS PARTIES. IT WAS OBSER VED THAT THE AO MADE ADDITION U/S 40(A)(IA) OF THE ACT, BUT WITHOUT EXAMINING THE ALLEGED RECIPIENTS OF THE COMMISSION. IT WAS OBSERVED THAT THE LD. CIT(A) HAD GIVEN A FINDING THAT EVEN IF IT WERE PRESUMED THAT THE COMMISSION WAS ITA NO.486(ASR)/2013 ASSTT. YEAR : 2005-06 5 PAID OUTSIDE THE BOOKS, THE SAME HAD TO BE GIVEN DE DUCTION AND SO THE NET PROFIT ON THE PROFIT OF THE ASSESSEE WOULD BE N IL. IT WAS OBSERVED THAT THIS FACT WAS NOT CORRECT IN VIEW OF THE PROVISO IN SERTED IN SECTION 69C OF THE ACT W.E.F. 01.04.1999, AS PER WHICH, SUCH UNEXP LAINED EXPENDITURE WHICH IS DEEMED TO BE THE INCOME OF THE ASSESSEE SH ALL NOT BE ALLOWED AS A DEDUCTION UNDER ANY HEAD OF INCOME. IT WAS ON TH IS BASIS, THAT THE ISSUE WAS SET ASIDE BY THE TRIBUNAL FOR FRESH ADJUD ICATION TO THE AO. 9. VIDE ORDER DATED 30.12.2010, THE AO OBSERVED THA T THE SUMMONS ISSUED TO THE CO-OPERATIVE SOCIETIES/ALLEGED RECIPI ENTS OF THE COMMISSION WERE RECEIVED BACK WITH THE REMARK THAT THERE WERE NO SUCH CO-OPERATIVE SOCIETIES AT THE GIVEN ADDRESSES; THAT THE ASSESSEE ALSO COULD NOT FURNISH ANY EVIDENCE TO ESTABLISH EVEN THE EXISTENCE OF AN Y BUT ONE OF THESE SOCIETIES; THAT THE ASSESSEE HAD FURNISHED ONLY ONE AFFIDAVIT FROM DOODI GUJJAR MILK PRODUCERS CO. LIMITED, BUT NO SUPPORTIN G EVIDENCE HAD BEEN FURNISHED; THAT THE PERSONS PRODUCE BY THE ASSESSE E AS CHAIRMEN OF VARIOUS SOCIETIES COULD NOT PRODUCE ANY EVIDENCE R EGARDING THEIR IDENTITY, OR ANY EVIDENCE OF THEIR BEING CHAIRMEN OF THESE CO-OPERATIVE SOCIETIES; THAT THUS, EVEN THE EXISTENCE OF THESE CO-OPERATIVE SOCIETIES HAD NOT BEEN ESTABLISHED BY THE ASSESSEE; THAT THE ASSESSEES AUDITORS HAD ADMITTED THAT DURING THE YEAR, COMMISSION OF RS .18,33,681/- HAD BEEN PAID TO THE SOCIETIES; THAT SINCE THE GENUINE NESS OF THE CO- OPERATIVE SOCIETIES COULD NOT BE ESTABLISHED BY THE ASSESSEE, THE EXPENDITURE OF RS.18,33,681/- WAS NOT ADMISSIBLE TO THE ASSESSEE. ITA NO.486(ASR)/2013 ASSTT. YEAR : 2005-06 6 10. BEFORE THE LD. CIT(A), THE ASSESSEE CONTENDED A S UNDER: I) THE AO HAS PASSED THE ASSESSMENT ORDER U/S 254 R.W.S. 143(3) OF THE ACT FOR WHICH HE HAS NO JURISDICTION AND AS SUCH THIS ORDER IS VOID ABINITO AND REQUIRES TO BE CANCE LLED. II) THE AO HAS NOT BOTHERED TO EXAMINE THE RECIPIENTS OF THE COMMISSION AS PER THE DIRECTIONS ISSUED BY THE ITAT , AMRITSAR AND MERELY ISSUED SUMMONS U/S 131 TO THE SECRETARIE S OF VARIOUS GUJJAR MILK PRODUCERS CO-OPERATIVES ON THE ADDRESSES AS PER. AS THE SUMMONS ISSUED WERE RECEIVED BACK WI TH THE REMARK AND THERE ARE NO SUCH CO-OPERATIVES AT THE S AID ADDRESSEE NOTICES TO THE SOCIETIES AND THE AO SHIFT ED THE ONUS UPON THE ASSESSEE TO PROVE THE GENUINENESS OF CLAIM MADE IN THE RETURN OF INCOME. THE ASSESSEE HAS NOT CLAIMED COMMISSION AS AN EXPENDITURE IN THE RETURN OF INCOM E. III) YOUR KIND ATTENTION IS INVITED TO PARA 1 ABOVE REPR ODUCING THE DIRECTIONS ISSUED BY THE ITAT, AMRITSAR BENCH TO TH E AO WHICH READS AS IN OUR OPINION, IN THE INTEREST OF JUSTI CE RECIPIENTS OF COMMISSION TO BE EXAMINED. THE AO HAS ALSO REPRODU CED THE DIRECTIONS OF ITAT IN PARA 1 OF THIS ASSESSMENT ORD ER AND HAS OMITTED THE WORDS IN THE INTEREST OF JUSTICE WHIC H CLEARLY DEPICTS THAT THE DIRECTIONS WERE TAKEN VERY LIGHT LY. IV) YOUR KIND ATTENTION IS INVITED TO BALANCE SHEET AND PROFIT & LOSS ACCOUNT SUBMITTED BY THE ASSESSEE FOR THE F.Y. 2004-05 WHICH NO WHERE REFLECTS THAT ANY COMMISSION WAS PAI D TO THE SOCIETIES FOR PROCUREMENT OF MILK. V) THE RAW MILK IS PROCURED BY THE ASSESSEE FROM PETTY MILK PRODUCERS/GUJJARS WHO DONT ISSUE SALES BILLS AND A RE NOT EDUCATED ENOUGH TO MAINTAIN ACCOUNTS. THE PAYMENT F OR THE PROCUREMENT OF MILK WAS MADE ON SPOT. VI) THE AO HAS NOT DISCHARGED HIS OBLIGATION AS PER TH E DIRECTIONS ISSUED BY THE ITAT. HE FAILED TO EXAMIN E THE RECIPIENTS OF COMMISSION BY NOT INITIATING THE PRO CESS AS REQUIRED IN THE INTEREST OF JUSTICE. THE LD. AO FAI LED TO: A) DEPUTE INCOME TAX INSPECTOR TO FIND OUT THE WHEREABOUTS OF THE SOCIETIES AND THEIR OFFICE BEARE RS AT THEIR ADDRESSES FOR SPOT VERIFICATION ON THE NON DE LIVERY OF SUMMONS BY POSTAL AUTHORITIES. ITA NO.486(ASR)/2013 ASSTT. YEAR : 2005-06 7 B) COLLECT INFORMATION ABOUT THE STATUS, FINANCIAL HEALTH/STATEMENTS OF ACCOUNT, ADDRESSES AND MEMBERSHIP DETAILS OF THE SOCIETIES FROM THE REGIST RAR CO-OPERATIVES SOCIETIES J & K GOVT., JAMMU. C) PUBLISH PUBLIC NOTICE IN A LEADING NEWSPAPER TO FIN D OUT THE WHEREABOUTS OF THE SOCIETIES AT THE COST OF THE ASSESSEE. VII) IT IS FURTHER SUBMITTED THAT CO-OPERATIVE SOCI ETIES ARE DIVIDED INTO TWO BROAD CATEGORIES AS ENUMERATED BELOW: A) THESE ARE SOCIETIES AT GROSS ROOT LEVEL WHICH ARE D ULY REGISTERED WITH THE REGISTRAR OF CO-OPERATIVE SOCIE TIES UNDER CO-OPERATIVE SOCIETIES ACT. B) THERE ARE UNREGISTERED SOCIETIES FORMED BY FEW MEMBERS WITH VESTED INTEREST TO GRAB THE INCOME OF POOR MILK PRODUCERS. THE SO CALLED SOCIETIES ONLY EXIST IN NAME SAKE AND ARE NOT REGISTERED WITH THE OFFICE OF THE REGISTRAR CO-OPERATIVE SOCIETIES. THE OFFICE BEARER S FORM THEMSELVES INTO A SO CALLED SOCIETY AND ACT AS MIDDLEMAN BETWEEN MILK PRODUCERS AND THE PURCHASERS OF MILK IN ORDER TO GRAB COMMISSION FROM THE MILK PRODUCERS. ALL THE SOCIETIES REFLECTED IN THE CONSOLIDATED MIL K PROCUREMENT AND PAYMENT STATEMENT FOR THE YEAR 2004-05 FALL UN DER B CATEGORY EXCEPT DOODI GUJJAR MILK PRODUCERS CO-OP. LIMITED DULY REGISTERED WITH THE REGISTRAR OF CO-OPERATIVE SOCIETIES (J&K) VIDE NO.042 DATED 1 ST MARCH, 2002. A COPY OF CERTIFICATE OF REGISTRATION IS ENCLOSED FOR YOUR KIND REFERENCE . IT APPEARS THAT A GROUP OF PERSONS UNDER THE GARB OF DOODI MILK CO-OP. SOCIETIES TRIED TO SNATCH THE PROFIT EL EMENT FROM THE MILK PRODUCERS (GUJJARS) IN THE SHAPE OF COMMISSION AND LAID THEIR CLAIM WITH THE ASSESSEE FOR PAYMENT AS PER TH E CONSOLIDATED PROCUREMENT AND PAYMENT STATEMENT FOR THE YEAR 2004-05. THE MILK PRODUCERS/GUJJARS REFUSED TO PAY ANY COMMISSION ON THEIR SALES AND OBTAINED ALL THE SALE PROCEEDS FROM THE ASSESSEE. THE ASSESSEE COULD NOT MAKE ANY PAYMENT TO THE SO CALLED SOCIETIES/THEIR OFFICE BEARERS AS THE SAME WAS NOT ALLOWED BY THE MILK PRODUCERS. WE ARE READY TO SUBMIT COPY OF VERIFICATION REPORT TO BE OBTAINED FROM DEPUTY REGISTRAR CO-OP. SOCIETIES, JA MMU FOR YOUR KIND PERUSAL WHICH CATEGORICALLY MENTIONS THAT THEY HAVE ITA NO.486(ASR)/2013 ASSTT. YEAR : 2005-06 8 NOT ACCORDED ANY REGISTRATION TO THE DOODI MILK CO- OP. SOCIETIES UNDER REFERENCE . IT APPEARS THAT SO CALL ED SOCIETIES VANISHED ON NON RECEIPT OF THE COMMISSION FROM THE MILK PRODUCERS/ASSESSEE. THIS IS THE REASON THAT NOTICES SENT BY AO WERE REMAINED UNDELIVERED AS ALL THE SO CALLED S OCIETIES EXCEPT ONE ARE UNREGISTERED, UNAUTHORIZED, DEFUNCT AND NON OPERATIONAL SINCE THEIR INCEPTION. VIII) IT IS HUMBLY SUBMITTED THAT THE ASSESSEE PROD UCED OFFICE BEARERS OF THE UNDERNOTED CO-OPERATIVE SOCIE TIES BEFORE THE AO FOR THE PURPOSE OF THEIR EXAMINATION AS TO T HE NON RECEIPT OF COMMISSION BY THEM. S.NO. NAME OF THE SOCIETY NAME OF THE OFFICE BEARERS DESIGNATION 1. DOODI GUJJAR MILK PRODUCERS CO-OP. LIMITED, GANDHI NAGAR, JAMMU. JAMEEL CHOUDHARY SECRETARY 2. SANJWAN DOODI GUJJAR MILK PRODUCERS CO-OP. SANJWAN, JAMMU. BABU DIN PRESIDENT 3. KOT PUNNU DOODI GUJJAR MILK PRODUCERS CO-OP. KOT PUNNU, JAMMU. MOJ DIN CHAIRMAN 4. CHOWADHI UPPER DOODI GUJJAR MILK PRODUCERS CO-OP. CHOWADHI, JAMMU. ROSHAN DIN CHAIRMAN 5. LOK CHAK DOODI GUJJAR MILK PRODUCERS CO-OP. LOK CHAK,JAMMU. ALI MOHD CHAIRMAN ALL THE AFORESAID OFFICER BEARERS INFORMED THE AO T HAT THEIR SOCIETY HAS NOT RECEIVED ANY COMMISSION FROM J & K DAIRY PRODUCERS, PROCESSORS & MARKETING COOP.. UNION LIMI TED, 12C/C GANDHI NAGAR, JAMMU. THE SECRETARY J & K DAIR Y PRODUCERS, PROCESSORS & MARKETING COOP.. UNION LIMI TED, MR. VIKRANT DOGRA WAS ALSO PRODUCED BEFORE THE AO AND A COPY OF HIS SUBMISSIONS VIDE LETTER DATED 14.12.2010 IS ALS O ENCLOSED FOR YOUR KIND REFERENCE/PERUSAL. THE SECRETARY, DOODI GUJJAR MILK PRODUCERS CO-OP. L IMITED ALSO FURNISHED AN AFFIDAVIT BEFORE THE AO REGARDING NON RECEIPT OF AY COMMISSION FROM J & K DAIRY PRODUCERS , PROCESSORS & MARKETING COOP.. UNION LIMITED,. BUT T HE AO HAS NOT TREATED THE AFFIDAVIT AS SUPPORTING EVIDENCE. L IST OF OFFICE BEARERS OF SOCIETY AND REGISTRATION CERTIFICATE OF THE SOCIETY ITA NO.486(ASR)/2013 ASSTT. YEAR : 2005-06 9 WERE ALSO PRODUCED BEFORE THE AO AS EVIDENCE OF THE IR IDENTITY. THE ASSESSEE CAN REPRODUCE ALL THE OFFICE BEARERS OF THE SOCIETY BEFORE YOUR GOODSELF FOR VERIFICATION O F THEIR CONTENTION. IT IS HUMBLY SUBMITTED THAT THE AO HAS FOLLOWED THE FINDINGS OF THE ASSESSMENT ORDER PASSED BY HIS PREDECESSOR ON 28.12.2007 AND MADE ASSUMPTIONS WHIC H IS NOT IN THE INTEREST OF JUSTICE AS DIRECTED BY THE I TAT, AMRITSAR BENCH. COPIES OF SUBMISSIONS MADE BEFORE THE AO DUR ING THE COURSE OF ASSESSMENT PROCEEDINGS VIDE LETTER DATED 8.7.2008, 1.12.2010, 14, 14.12.2010, 28.12.2010 AND 30.12.201 0 ARE ALSO SUBMITTED FOR YOUR KIND PERUSAL ALONGWITH ENCL OSURES. TO SUM UP, IT IS SUBMITTED THAT THE AO HAS NOT BOTH ERED TO COLLECT INFORMATION ABOUT THE STATUS OF THE SOCIETIES FROM THE REGISTRAR CO- OPERATIVE SOCIETIES, JAMMU. ALL THE CO-OPERATIVE SO CIETIES, AND REQUIRED TO SUBMIT THEIR ACCOUNTS WITH THE OFFICE O F THE REGISTRAR CO- OPERATIVE SOCIETIES. INFORMATION ABOUT THE FINANCIA L STATEMENTS, MEMBERSHIP AND STATUS (DEFUNCT/NON-OPERATIONAL /OPE RATIONAL) OF THE CO-OPERATIVE SOCIETIES, COULD HAVE BEEN HELPFUL TO AO IN THE INTEREST OF JUSTICE WHICH HE FAILED TO AVAIL AND IN STEAD FOLLOWED THE FOOT STEPS OF HIS PREDECESSOR IN PASSING THE ASSTT. ORDER. HE HAS NOT COMPLIED WITH THE DIRECTIONS OF ITAT IN LETTER AND SPIRIT. 3B SUBMISSION OF THE APPELLANT DATED 17 TH DEC., 2012: THE APPELLANT HAS TAKEN OUT EXCERPTS FROM HIS SUBMISSION DATED 12 /03/2012 AND REITERATED THE SAME. FOR BREVITY THIS IS NOT REPROD UCED. ALONGWITH REITERATION OF EARLIER SUBMISSION FOLLOWI NG DOCUMENTS WERE ENCLOSED: I) COPY OF THE ORDER PASSED BY THE CIT(A) ON 15 TH JULY, 2008 II) COPY OF THE ORDER PASSED BY THE ITAT AMRITSAR BECH ON 22 ND JULY, 2009. III) CERTIFICATE FROM THE BANKERS I.E. CORPORATION BANK JAMU REGARDING NON-PAYMENT OF ANY COMMISSION BY THE ASSESSEE TO DOODI GUJJAR MILK PRODUCERS CO-OP. LIMI TED AS MENTIONED IN THE STATEMENT FOUND DURING THE COUR SE OF SURVEY PROCEEDINGS. IV) CERTIFICATE FROM SURESH AJIT & ASSOCIATES CHARTERED ACCOUNTANTS REGARDING THE NON PAYMENT OF ANY COMMISSION BY THE ASSESSEE TO THE DOODI GUJJAR MILK PRODUCERS CO-OP. LIMITED UNDER REFERENCE AS PER TH E BOOKS OF ACCOUNTS OF THE ASSESSEE. THE ASSESSEE CAN REPRODUCE BEFORE YOUR GOODSELF THE OFFICE BEARER OF THE AFORESAID SOCIETIES IF SO DESIRE. ITA NO.486(ASR)/2013 ASSTT. YEAR : 2005-06 10 TO SUM UP, IT IS SUBMITTED THAT THE AO HAS NOT BOTH ERED TO COLLECT INFORMATION ABOUT THE STATUS OF THE SOCIETI ES FROM THE REGISTRAR OF CO-OPERATIVE SOCIETIES, JAMMU. ALL THE CO- OPERATIVE SOCIETIES ARE REQUIRED TO SUBMIT THEIR AC COUNTS WITH THE OFFICE OF THE REGISTRAR CO-OPERATIVE SOCIETIES. INFORMATION ABOUT THE FINANCIAL STATEMENTS, MEMBERSHIP AND STAT US (DEFUNCT/NON-OPERATIONAL /OPERATIONAL) OF THE CO-OP ERATIVE SOCIETIES, COULD HAVE BEEN HELPFUL TO AO IN THE INT EREST OF JUSTICE WHICH HE FAILED TO AVAIL AND INSTEAD FOLLOW ED THE FOOT STEPS OF HIS PREDECESSOR IN PASSING THE ASSTT. ORDE R. HE HAS NOT COMPLIED WITH THE DIRECTIONS OF ITAT IN LETTER AND SPIRIT. IT IS SUBMITTED THAT ALL THE CO-OPERATIVE SOCIETIES UNDER REFERENCE WERE UN-REGISTERED AND EVEN THE CONSTITUT ION /BY LAWS OF THE SO CALLED CO-OPERATIVE SOCIETIES WERE NOT REGISTERED WITH THE REGISTRAR CO-OPERATIVE SOCIETIE S. 11. ON THE LD. CIT(A)S ASKING, THE AO SUBMITTED R EMAND REPORT (APB 9-11) DATED 05.04.2013. THE RELEVANT EXTRACT THEREO F IS REPRODUCED AS UNDER: THE ASSESSEE SOCIETY AGAIN FILED APPEAL BEFORE YOUR GOODSELF AND AS SUCH REMAND REPORT REQUISITIONED FROM THE UNDERS IGNED AFTER EXAMINATION OF THE RECIPIENTS OF THE COMMISSION. IN ORDER TO VERIFY THE GENUINENESS OF VARIOUS CO-OPERATIVE SOCIETIES WHO H AVE ALLEGEDLY WRITTEN TO DY. REGISTRAR (AGRI.), CO-OPERATIVE SOCI ETIES, J & K GOVT., JAMMU FOR FURNISHING THE INFORMATION IN RESPECT OF THESE CO- OPERATIVE SOCIETIES IN WHICH THEY WERE ASKED TO FUR NISH WHETHER THEY HAVE RECEIVED ANY PAYMENT ON ACCOUNT OF COMMIS SION FOR THE SALE OF MILK FROM THE ASSESSES DURING FINANCIAL YEA R 2004-05 RELEVANT TO AY 2005-06. A REPLY WAS RECEIVED FROM D Y. REGISTRAR, CO- OPERATIVE SOCIETIES (AGRI.) IN WHICH HE SUBMITTED T HAT REGISTRATION PAPER OF THESE CO-OPERATIVES HAS NOT BEEN PROCESSED AND RECOMMENDED THROUGH THIS OFFICE HENCE NO RECORD IS AVAILABLE WITH HIS OFFICE. REPLIES ARE ALSO RECEIVED FROM THE IND IVIDUAL CO-OPERATIVES IN WHICH THEY SUBMITTED AFFIDAVITS IN WHICH THEY CO NFIRMED THAT THEY ARE NOT REGISTERED WITH REGISTRAR CO-OPERATIV E SOCIETIES (J&K) AND THEY HAVE NOT RECEIVED ANY COMMISSION FROM THE ASSESSEE SOCIETY DURING AY 2005-06. MOREOVER THE COUNSEL OF THE ASSESSEE SOCIETY HAS ALSO FURNISHED A CERTIFICATE FROM CHART ERED ACCOUNTANT, SURESH AJIT AND ASSOCIATES, GANDHI NAGAR, JAMMU REG ARDING PAYMENT OF COMMISSION TO THE SOCIETIES WHICH CATEGO RICALLY STATES THAT ASSESSEE HAS NOT MADE ANY PAYMENT TO THE SOCIE TIES ON ITA NO.486(ASR)/2013 ASSTT. YEAR : 2005-06 11 ACCOUNT OF COMMISSION OR SALE PROCEEDS. SIMILARLY, A CERTIFICATE IS ALSO FURNISHED BY THE ASSESSEE FROM THE BANKERS I.E . CORPORATION BANK, JAMMU WHICH ALSO CONFIRMED THAT NO PAYMENT WA S MADE TO THE CO-OPERATIVE SOCIETIES UNDER REFERENCE BY THE A SSESSEE DURING THE FINANCIAL YEAR 2004-05. ALL THESE DOCUMENTS ARE PLACED ON RECORD. IT WOULD BE WORTHWHILE TO MENTION HERE THAT THIS AMOUNT OF COMMISSION IS NOWHERE REFLECTED IN THE P & L ACCOUN T AND BALANCE SHEET OF THE ASSESSEE DURING THE F.Y. 2004-05 IT IS ALSO FOUND THAT THE STATEMENT SHOWING COMMI SSION PAID IS NOT SIGNED BY ANY RECIPIENT. IN VIEW OF THE FOREGOING F ACTS, IT SEEMS THAT NO COMMISSION WAS PAID BY THE ASSESSEE SOCIETY. 12. THE LD. CIT(A), HOWEVER, DISBELIEVED AND REJECT ED THE REMAND REPORT AND CONFIRMED THE ADDITION, OBSERVING AS FOLLOWS: THE AO DURING THE REMAND PROCEEDINGS HAS OBTAINED REPLIES FROM SOME OF THE SOCIETIES AND FOUND THAT THEY ARE NOT REGISTERED AND NO COMMISSION HAS BEEN RECEIVED BY THE CO-OPERA TIVE SOCIETIES. THE ASSESSEE HAS ALSO STRESSED THAT IT MAY BE ENQUI RED FROM THE CO- OPERATIVE SOCIETIES THAT THE COMMISSION HAS NOT BEE N PAID TO THESE CO-OPERATIVE SOCIETIES. THE ASSESSEE HIMSELF STATED THAT THESE SOCIETIES WERE IN UNORGANIZED SECTOR AND VANISHED W HEN THEY DID NOT RECEIVE COMMISSION, HOWEVER, FOR FURNISHING REP LY TO THE AO THEY HAVE SHOWN THEIR EXISTENCE. THIS SUGGESTS ONE THING THAT DENYING PAYMENT OF COMMISSION BY THE ASSESSEE AND DENYING R ECEIPT BY THESE SOCIETIES ARE WITH A MOTIVE TO AVOID INCIDENC E OF TAXES IN BOTH THE CASES. THUS, THE FINDINGS OF THE AO IN THE REMA ND REPORT IS MERELY ON THE BASIS OF SELF SERVING DOCUMENTS WHICH THE APPELLANT WAS READY TO FURNISH. THE CONTENTION IN THE REPORT OF THE AO AND THAT OF ASSESSEE THAT THE SOCIETIES MENTIONED IN THE IMP OUNDED DOCUMENT HAVE NOT RECEIVED THE COMMISSION, DOES NOT ITSELF MEAN THAT THE AMOUNT HAS NOT BEEN WITHDRAWN FROM THE ASSESSEE COR PORATION FOR PAYMENT OF COMMISSION. DOCUMENTS IMPOUNDED BY THE D EPARTMENT CLEARLY GIVES THE VALUE OF SALES AND BIFURCATION OF PURCHASES AND COMMISSION. THE AMOUNT OF PURCHASES SHOWN BY THE AS SESSEE CORPORATION IS IN EXCESS OF RS.18.33.681/- AS COMPA RED TO PURCHASES SHOWN IN THE IMPOUNDED DOCUMENTS. WHEREAS THE SALES FIGURE IS EXACTLY THE SAME AS SHOWN BY THE ASSESSEE IN THE FI NANCIAL STATEMENTS. AS PER SECTION 292C, THE DOCUMENT FOUND IN THE POSSESSION OF A PERSON IN COURSE OF SURVEY, IT MAY, IN ANY PROCEEDINGS UNDER THIS ACT, BE PRESUMED THAT SUCH D OCUMENT BELONG TO SUCH PERSON. THIS PRESUMPTION IS NOT SATISFACTOR ILY REBUTTED. ITA NO.486(ASR)/2013 ASSTT. YEAR : 2005-06 12 13. IT WILL BE IN ORDER TO KEEP IN MIND THAT THE TR IBUNAL HAD REMITTED THE MATTER TO THE AO TO EXAMINE THE ALLEGED RECIPIE NTS OF THE COMMISSION, WHICH HAD NOT BEEN DONE IN THE FIRST ROUND AND IT W AS SINCE THIS DIRECTION OF THE TRIBUNAL HAD NOT BEEN COMPLIED WI TH BY THE AO, EVEN IN THE SECOND ROUND BEFORE THE AO, THAT THE LD. CIT(A) ASKED FOR A REMAND REPORT FROM THE AO AFTER EXAMINING THE SAID ALLEGED RECIPIENTS OF COMMISSION. THIS FACT IS EVIDENT FROM THE OPENING SENTENCE OF THE ABOVE EXTRACT OF THE REMAND REPORT. 14. THE REMAND REPORT OF THE AO EVINCES, INTER-ALI A, THAT IN RESPONSE TO INDIVIDUAL LETTERS WRITTEN BY THE AO TO THE CO-O PERATIVE SOCIETIES, THESE CO-OPERATIVE SOCIETIES SUBMITTED AFFIDAVITS, CONFI RMING THAT THEY HAD NOT RECEIVED ANY COMMISSION FROM THE ASSESSEE DURIN G THE ASSESSMENT YEAR 2005-06. 15. THE LD. CIT(A) OBSERVED THAT THE AO, IN THE REM AND PROCEEDINGS,HAD OBTAINED REPLIES FROM SOME OF THE SOCIETIES AND FOUND THAT THEY HAD NOT RECEIVED ANY COMMISSION. NOW, THI S OBSERVATION OF THE LD. CIT(A) IS FOUND TO BE FACTUALLY INCORRECT. THE REMAND REPORT SPECIFICALLY MENTIONS THAT IN ORDER TO VERIFY THE G ENUINENESS OF VARIOUS CO-OPERATIVE SOCIETIES WHO HAD ALLEGEDLY RECEIVED THE COMMISSION FROM THE ASSESSEE SOCIETY, A LETTER WAS WRITTEN TO THE D Y. REGISTRAR (AGRI.), CO- OPERATIVE SOCIETIES, J & K GOVT., JAMMU FOR FURNI SHING THE INFORMATION IN RESPECT OF THESE CO-OPERATIVE SOCIETIES AND INDI VIDUAL LETTERS WERE ALSO ISSUED TO THESE CO-OPERATIVE SOCIETIES IN WHICH THE Y WERE ASKED TO ITA NO.486(ASR)/2013 ASSTT. YEAR : 2005-06 13 FURNISH WHETHER THEY HAD RECEIVED ANY PAYMENT ON AC COUNT OF COMMISSION FOR THE SALE OF MILK FROM THE ASSESSES D URING THE FINANCIAL YEAR 2004-05 RELEVANT TO AY 2005-06. 16. THUS, THE AO ISSUED LETTERS TO ALL AND NOT SOME OF THE CO-OPERATIVE SOCIETIES/ALLEGED RECIPIENTS OF COMMISSION. 17. THEN, THE LD. CIT(A) OBSERVED THAT THE ASSESSE E HAD ALSO STRESSED THAT IT MAY BE ENQUIRED FROM THE CO-OPERATIVE SOCIE TIES AS TO WHETHER THE COMMISSION HAD NOT BEEN PAID TO THESE CO-OPERAT IVE SOCIETIES., THAT THE ASSESSEE HIMSELF STATED THAT THESE SOCIETIES WE RE IN THE UNORGANIZED SECTOR AND VANISHED WHEN THEY DID NOT RECEIVE COMMI SSION, AND HOWEVER, FOR FURNISHING REPLY TO THE AO THEY HAD SHOWN THEI R EXISTENCE., THAT THIS SUGGESTED ONE THING, THAT DENYING THE PAYMENT OF COMMISSION BY THE ASSESSEE AND DENYING THE RECEIPT BY THESE SOCIETIES WERE WITH THE MOTIVE TO AVOID INCIDENCE OF TAXES IN BOTH THE CASES. 18. THE ABOVE OBSERVATIONS OF THE LD. CIT(A) ARE BA SELESS, MADE MERELY ON ASSUMPTIONS, PRESUMPTIONS AND CONJECTURES. THE I RREFUTED FACT REMAINS THAT THE AO ISSUED INDIVIDUAL LETTERS TO AL L OF THESE SOCIETIES AND ALL OF THEM RESPONDED BY ISSUING UNEQUIVOCAL, SEPAR ATE AFFIDAVITS TO THE EFFECT THAT NONE OF THEM HAD RECEIVED ANY COMMISSIO N FROM THE ASSESSEE. THESE AFFIDAVITS HAVE REMAINED UNREBUTTED AND THUS , THE LD. CIT(A) HAS ERRED IN DISBELIEVING THEM WITHOUT BRINGING ANYTHIN G ON RECORD CONTRADICTING THEIR CONTENTS, DISBELIEVING THEM AS SELF SERVING. ITA NO.486(ASR)/2013 ASSTT. YEAR : 2005-06 14 19. IN THE REMAND REPORT, THE AO HAD ALSO MADE MENT ION OF A CERTIFICATE HAVING BEEN FILED BY SURESH AJIT & ASS OCIATES, JAMMU, CAS OF THE ASSESSEE, TO THE EFFECT THAT THE ASSESSEE HAD NOT MADE ANY PAYMENT TO THE SOCIETIES ON ACCOUNT OF COMMISSION OR SALE PROCEEDS. THE LD. CIT(A) HAS NOT OFFERED ANY COMMENT, MUCH LESS ANY WORTHWHILE COMMENT ON THIS CERTIFICATE AND IT HAS BEEN ILLEGAL LY BRUSHED ASIDE, BY JUST TERMING IT, AGAIN, AS A SELF-SERVING DOCUMENT . THIS CERTIFICATE, NOTICEABLY, ALSO DOES NOT STAND PROVED TO BE A WRON G OR FALSE OR BOGUS CERTIFICATE. 20. THE REMAND REPORT FURTHER REFERS TO A CERTIFI CATE ISSUED BY CORPORATION BANK, JAMMU, CONFIRMING THAT NO PAYMENT WAS MADE BY THE ASSESSEE TO THE CO-OPERATIVE SOCIETIES DURING FINANCIAL YEAR 2004- 05, RELEVANT TO ASSESSMENT YEAR 2005-06, I.E., THE YEAR UNDER CONSIDERATION. THIS CERTIFICATE HAS ALSO NOT BEEN R EPELLED BY THE LD. CIT(A) BY PROVING IT TO BE FALSE. RATHER, THE LD. CIT(A) HAS, ONCE MORE, MERELY PAINTED THIS CERTIFICATE TO BE A SELF-SERVING DOCUM ENT, WITHOUT EVEN AS MUCH AS A WHISPER SPECIFICALLY DISPUTING IT. 21. THE AO HAS ALSO MENTIONED IN THE REMAND REPORT THAT THE COMMISSION IN QUESTION DOES NOT STAND REFLECTED IN THE PROFIT & LOSS ACCOUNT AND BALANCE SHEET OF THE ASSESSEE FOR THE F INANCIAL YEAR 2004-05. THIS SPECIFIC FINDING IN THE REMAND REPORT TOO HAS NOT BEEN CONTRADICTED BY THE LD. CIT(A). WHAT MORE, IT HAS NOT EVEN BEEN COMMENTED ON. COPIES OF THE SAID PROFIT & LOSS ACCOUNT AND BALAN CE SHEET HAVE BEEN ITA NO.486(ASR)/2013 ASSTT. YEAR : 2005-06 15 FILED BEFORE US, AT APB 1-2. THEY ARE CERTIFIED TO HAVE BEEN FILED BEFORE THE AO AS WELL AS BEFORE THE LD. CIT(A). A PERUSAL THEREOF SHOWS THE AOS ABOVE OBSERVATION IN THE REMAND REPORT TO BE CORREC T. THE COMMISSION IN QUESTION DOES NOT FIND ANY MENTIONED THEREIN. TH US, THE LD. CIT(A) IS WRONG IN TERMING EVEN THESE DOCUMENTS AS SELF-SERVI NG. 22. THEN, THE LD. CIT(A) HAS OBSERVED THAT THE CONT ENTION IN THE REPORT OF THE AO AND THAT OF ASSESSEE THAT THE SOCIETIES M ENTIONED IN THE IMPOUNDED DOCUMENTS HAVE NOT RECEIVED THE COMMISSI ON, DOES NOT ITSELF MEAN THAT THE AMOUNT HAS NOT BEEN WITHDRAWN FROM THE ASSESSEE CORPORATION FOR PAYMENT OF COMMISSION. 23. MEANING THEREBY, THAT THE AMOUNT WAS WITHDRAWN FROM THE ASSESSEE UNION FOR PAYMENT OF COMMISSION. NOW, THI S OBSERVATION IS IN DIRECT OPPOSITION TO THE AFORESAID CERTIFICATE ISSU ED BY THE CORPORATION BANK, JAMMU, CERTIFYING THAT NO COMMISSION WAS PAI D BY THE ASSESSEE DURING THE YEAR UNDER CONSIDERATION. THE SAID CERTI FICATE , AS NOTED, HAS NOT BEEN SHOWN BY THE LD. CIT(A) TO BE A BOGUS CER TIFICATE. THUS, THE CIT(A)S OBSERVATION THAT THE AMOUNT WAS WITHDRAWN FOR PAYMENT OF COMMISSION, IS OF NO CONSEQUENCE, SINCE AS PER THE SAID CERTIFICATE OF THE BANK, READ WITH THE AFFIDAVITS OF ALL THE SOCIETIES AND THE CERTIFICATE ISSUED BY THE ASSESSEES CA, WHICH DOCUMENTARY EVI DENCE, AS DISCUSSED, HAS ALSO NOT BEEN DISPROVED BY THE LD. CIT(A), NO COMMISSION WAS IN FACT PAID BY THE ASSESSEE. ITA NO.486(ASR)/2013 ASSTT. YEAR : 2005-06 16 24. THE LD. CIT(A), FOR CONFIRMING THE ADDITION, HA S SOUGHT TO PLACE RELIANCE ON THE DOCUMENTS IMPOUNDED DURING THE SURV EY. NOW, THIS IS UNSUSTAINABLE AT THE OUTSET, SINCE IT IS BEYOND TH E VERY SCOPE OF THE REMAND ORDERED BY ITAT, AS PER WHICH, THE ALLEGED R ECIPIENTS WERE TO BE EXAMINED BY THE AO, WHICH HAD NOT EARLIER BEEN DON E BY THE AO. THE SPECIFIC OBSERVATION OF THE ITAT IS ( PAGE 6): . .... HOWEVER, THE AO SOLELY BASED HIS CONCLUSION ON THE MATERIAL GATHERED IN T HE COURSE OF SURVEY PROCEEDINGS AND AUDITORS STATEMENT AND NOT EXAMINE D THE RECIPIENTS OF COMMISSION. IN OUR OPINION, IN THE INTEREST OF JUST ICE, RECIPIENTS OF COMMISSION (SIC) TO BE EXAMINED. 25. EVEN THE LD. CIT(A) REQUISITIONED THE REMAND R EPORT FROM THE AO IN LINE WITH THE DIRECTION OF THE TRIBUNAL, AFTER THE EXAMINATION OF THE ALLEGED RECIPIENTS OF COMMISSION. 26. THE AO SUBMITTED THE REMAND REPORT ON THE BASIS OF THE AFFIDAVITS OF THE SOCIETIES, THE CERTIFICATE OF THE ASSESSEES CA AND THE CERTIFICATE OF THE BANK, ALL OF WHICH DOCUMENTARY EVIDENCE PROVES THAT THE ASSESSEE HAD NOT PAID ANY COMMISSION TO ANY OF THE CO-OPERAT IVE SOCIETIES DURING THE YEAR UNDER CONSIDERATION. HOWEVER, ALL THIS COG ENT DOCUMENTARY EVIDENCE WAS ILLEGALLY DISBELIEVED BY THE LD. CIT( A), WHICH IS NOT AT ALL SUSTAINABLE IN LAW. 27. MOREOVER, THE RELIANCE BY THE LD. CIT(A) ON TH E DOCUMENTS SEIZED IS ALSO NOT JUSTIFIED IN VIEW OF THE FACT THAT IN THE REMAND REPORT, THE AO HAS SPECIFICALLY STATED THAT THE STATEMENT SHOWING THE COMMISSION IS NOT ITA NO.486(ASR)/2013 ASSTT. YEAR : 2005-06 17 SIGNED BY ANY RECIPIENT. THIS STATEMENT OF THE AO H AS ALSO NOT BEEN PROVED BY THE LD. CIT(A) TO BE WRONG. 28. FURTHER, AS RIGHTLY CONTENDED ON BEHALF OF THE ASSESSEE, THE COMMISSION HAS NOT BEEN SHOWN AS FORMING PART OF TH E ASSESSEES BOOKS OF ACCOUNT. IT IS TRITE THAT ONLY SUCH EXPENDITURE CAN BE DISALLOWED, AS FORMS PART OF THE BOOKS OF ACCOUNT OF AN ASSESSEE, OR FOR WHICH DEDUCTION HAS BEEN CLAIMED, WHICH IS NOT THE CASE HEREIN. THE ASSESSEES AUDITORS HAD QUALIFIED THEIR REPORT ONLY ON THE BASIS OF SHE ETS WHICH DID NOT FORM PART OF THE ASSESSEES REGULAR BOOKS OF ACCOUNT, WI THOUT ALLOWING ANY OPPORTUNITY TO THE ASSESSEE TO EXPLAIN THE ACTUAL P OSITION. BE THAT AS IT MAY, THE TAX AUDIT REPORT STANDS OVER-RIDDEN BY TH E AFORESAID CERTIFICATE LATER FURNISHED BY THE ASSESSEES CA IN THE REMAND PROCEEDINGS BEFORE THE AO, CERTIFYING THAT NO COMMISSION WAS PAID BY THE ASSESSEE DURING THE YEAR UNDER CONSIDERATION, WHICH CERTIFICATE WA S, WITHOUT ANY BASIS, WRONGLY HELD BY THE LD. CIT(A) TO BE A SELF-SERVING DOCUMENT, SANS PROVING IT TO BE SO. 29. THE LD. CIT(A)S ALTERNATIVE OBSERVATION THAT IN CASE NO COMMISSION WAS PAID, THE ASSESSEE HAS CLAIMED EXCESS EXPENDITU RE OVER PURCHASES AND IT IS A CASE OF BOGUS EXPENDITURE CLAIMED BY T HE ASSESSEE, IS ALSO INCORRECT. THIS OBSERVATION IS A RESULT OF THE TAX AUDIT REPORT, WHICH, AS NOTED, STANDS ECLIPSED BY THE CAS CERTIFICATE. HEN CE, THIS OBSERVATION ALSO DOES NOT PREJUDICE THE ASSESSEES CASE, AS DUL Y MADE OUT IN THE AOS REMAND REPORT. ITA NO.486(ASR)/2013 ASSTT. YEAR : 2005-06 18 30. IN SUM, NONE OF THE OBSERVATIONS MADE BY THE LD . CIT(A) HAS ANY LEGS TO STAND ON. IN THE ABSENCE OF ANYTHING TO THE CONTRARY HAVING BEEN BROUGHT ON RECORD BY THE LD. CIT(A), THE REMAND REP ORT OF THE AO IS ON ALL FOURS AND ON THE BASIS THEREOF, THERE REMAINS NOTHI NG TO ENABLE THE ADDITION TO BE SUSTAINED. THE GRIEVANCE OF THE ASSE SSEE IS WHOLLY JUSTIFIED AND IS ACCEPTED AS SUCH. THE ORDER UNDER APPEAL IS REVERSED. THE ADDITION IS DELETED. 31. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS AL LOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 05/02/201 6. SD/- SD/- (T.S. KAPOOR) (A.D. JAIN) ACCOUNTANT MEMBER JUDICIAL MEM BER DATED: 05/02/2016 /SKR/ COPY OF ORDER FORWARDED TO: 1. THE ASSESSEE: M/S. J & K DAIRY PRODUCERS, PROCES SORS AND MARKETING CO-OPERATIVE UNION LTD., GANDHI NAGAR, JA MMU. 2. THE ITO, WARD 1(1), JAMMU 3. THE CIT(A), JAMMU. 4. THE CIT, JAMMU. 5. THE SR. DR, ITAT, ASR. TRUE COPY BY ORDER (ASSISTANT REGISTRAR) INCOME TAX APPELLATE TRIBUNAL AMRITSAR BENCH: AMRITSAR.