M/s. K.G.Agro Processor Pvt.Ltd, Dhule V. Assistant Commissioner of Income tax, Dhule

ITA 662/PUN/2017

• Counselvise Citation: [2022] 105 COUNSELVISE.COM (IT) 2388 (ITAT-PUNE)
• Duration Of Justice: 5 year(s) 1 month(s) 22 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 11-05-2022
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2010-2011
• Appeal Filed On: 19-03-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SUBHAKANT SAHU
• Keywords: Search and seizure; Corroborative evidences; Assessment record; Set aside
• Section: 145; 143(3); 133A; 145(3)

Judgement Text

आयकर अपीऱीय अधिकरण “ए” न्यायपीठ पुणे में । IN THE INCOME TAX APPELLATE TRIBUNAL “A” BENCH, PUNE BEFORE SHRI S.S.GODARA, JM AND SHRI DR. DIPAK P. RIPOTE, AM आयकर अपीऱ सं. / ITA No.662 & 663 /PUN/2017 ननधधारण वषा / Assessment Year : 2010-11 & 2011-12 M/s. K.G. Agro Processor Pvt Ltd. Mansaram Dada Road, Near Vijay Stambh, Shirpur, Dist. Dhule- 425 405. PAN : AAACK7390N .......अपऩलधथी / Appellant बनधम / V/s. ACIT, Circle, Dhule ......प्रत्यथी / Respondent Assessee by : Dr. Vardhaman L. Jain Revenue by : Shri Subhakant Sahu सपनवधई की तधरऩख / Date of Hearing : 19.04.2022 घोषणध की तधरऩख / Date of Pronouncement : 12.05.2022 आदेश / ORDER PER S. S. GODARA, JM : 1. These assessee’s twin appeals for A.Y. 2010-11 & 2011-12 are directed against the CIT(A)-1 Nashik’s separate orders dated 02.12.2016 & 05.12.2016 passed in case Nos. Nsk/CIT(A)-1/563 and 617/ 2015-16, involving proceeding u/s. 143 (3) r.w.s. 147 & 144 r.w.s. 147 of the Income Tax Act, 1961 ; in short "the Act, respectively. Heard both the parties. Case files perused. 2 ITA No.662 & 663 /PUN/2017 K.G. Agro Processor Pvt Ltd. 2. We note at the outset that the assessee’s identical sole grievance raised in both these cases challenges the learned lower authorities action adding the alleged undisclosed toll receipts of Rs.6,05,47,016/- and Rs.5,12,78,560/-, assessment year wise, respectively. A few relevant facts may be noticed hereunder. 3. This assessee is admittedly a company manufacturing and trading in oil, pulses, besan and other types of agriculture items as well as kirana items. It also had a toll plaza at Yengur i.e. National Highway No.9 Km No.37600 Hyderabad – Solapur highway in these two assessment years. The police authorities appear to carried a raid at it’s toll premises on 25.07.10 culminating in an FIR that the assessee had collected toll receipts over and above the specified rates from transport vehicles. And more particulars trucks passing through the said toll bridge. The police authorities thereafter compared the alleged differential sums between all the printed toll receipt’s sum(s) and those which had remained unissued. They thereafter informed the assessing authority herein during the course of scrutiny. The latter thereafter has proceeded to make the impugned identical addition(s) after giving corresponding show cause notices to this effect. 4. The assessee preferred its separate appeals before the CIT(A) which stood dismissed on 09.02.2014. It then filed its appeal 1282/PN/14 for A.Y. 2010-11 which was restored back to the CIT(A) on 28.10.2015. It emerges in this factual background that the CIT(A) has reaffirmed the impugned addition to this effect in former A.Y. 10-11 as under. 3 ITA No.662 & 663 /PUN/2017 K.G. Agro Processor Pvt Ltd. “4. The Assessing Officer thereafter wrote to the Director of K.G.Agro Processors to collect the necessary document on which additions were made at the time of assessment proceedings. The Director, however, did not collect the documents from the office of the Assessing Officer. The Assessing Officer, thereafter vide his letter date 08/06/2016 forwarded necessary documents on which additions were made during the assessment proceedings to the appellant asking him to furnish submissions by 13/06/2016. The appellant did not attend before the Assessing Officer. The Assessing Officer thereafter vide his letter dated 22/07/2016 wrote to the undersigned as under:- “In this connection it is submitted that as per direction given vide letter No.NSK/CIT(A)-1/Remand report/ 2015-16/656 dated 13/01/2016 all the necessary papers/documents have been handed over to the assessee on 08/06/2016 and asked for submission after taking into consideration the documents provided by 13/06/2016 but till date no body attended nor given any submission in this office. A copy of this office letter dated 08/06/2016 which is given to the assessee for collecting the documents and giving the submission thereon is already submitted to your honour on16/06/2016. Further, it is submitted that as soon as the submission is received from the assessee, the report will be submitted immediately. 5. The assessee did not comply to the direction of the Assessing Officer. Thereafter, the Assessing Officer wrote another letter to me dated 18/10/2016 as under :- In this connection it is submitted that as per direction given vide letter No.NSK/CIT(A)-1/Remand report/2015-16/656 dated 13/01/2016 all the necessary papers/documents have been handed over to the assessee Shri Sanjay Narayan Dayma(Director of the company) on 08/06/2016 and asked for submission after taking into consideration the documents provided by 13/06/2016. A copy of this office letter dated 08/06/2016 which is given to the assessee for collecting the documents and giving submission thereon is already submitted to your honour on 16/06/2016. Signature of the director of the company is also put on the above mentioned letter for receiving of the documents. Reply regarding above mentioned subject vide letter dated 01/07/2016 is also submitted by this office on 22/07/2016 to your honour. Further, it is submitted that till date no body attended nor given any submission in this office. Therefore, it is crystal clear that the 4 ITA No.662 & 663 /PUN/2017 K.G. Agro Processor Pvt Ltd. assessee has nothing to say regarding the addition. Hence, it is requested that kindly confirm the addition made by the Assessing Officer for the A.Y. 2010-11. Submitted. 6. Thereafter a letter dated 19/10/2016 was written by me to the assessee as under:- “The appellate proceedings in the aforesaid mentioned case was set aside by Hon‟ble ITAT for granting you an opportunity of being heard. Accordingly, an opportunity was provided to you. The document submitted by you on 13/01/2016 were forwarded to the Assessing Officer for examination and report. 2. From the report submitted by Assessing Officer it is observed that Shri Sanjay Narayan Dayma Director of the company was handed over the documents by the Assessing Officer on 08/06/2016 and was asked to provide comments on 13/06/2016. However, till date no reply has been furnished. The Assessing Officer has submitted that since assessee is not providing any information, appeal may be dismissed. I do not find any infirmity on the stand taken by the Assessing Officer in absence of your compliance before him 3. A last and final opportunity is given to you to submit your submission bye 25/10/2017 before Assessing Officer which no for the opportunity will be granted and appeal will be dismissed. 7. In response to my letter 21/10/2016 once again non appear before the Assessing Officer. However, a letter dated 21/10/2016 addressed to the assessing officer was filed in my Tapal (Dak). The said letter was forwarded on 21/10/2016 to the Assessing Officer in response to appellant‟s letter furnished report dated 07/11/2016 as under :- “The additional grounds which watch taken and which is directed to be admitted by the Hon‟ble ITAT is that the AO has a erred in estimating undisclosed receipt without rejecting the books of account as contemplated in section 145(3) of the I.T. Act, 1961. Further, as directed the assessee was supplied with the copies of documents on the basis of which additions were made in the assessment for A.Y.2010-11, vide this office letter dated 08/06/2016. These were about 136 pages. The crux of the issue is consciously expressed herein below. The assessee is a Private Limited Company engaged in the business of manufacturing and trading of oil, pulses, besan and 5 ITA No.662 & 663 /PUN/2017 K.G. Agro Processor Pvt Ltd. other agriculture produce. Besides it was awarded contract for collection of tool at Yenegur on Pune-Solapur-Hyderabad road National Highway No. 9 on 15/01/2010, an action u/s 133A of the I.T.Act, 1961 was carried out in the case of assessee. various discrepancies were found. Statement of Shri Sunil K. Dayma, a director was recorded who had admitted the discrepancies and had confirmed the disclosure of additional income to the tune of Rs.75,00785/-. Thus the action u/s.133A nothing the discrepancies and subsequently admission by the Director on the basis of which has been made itself is a clinching evidences about the evasion of tax in the case of present assessee. With regard to be main issue about the addition of Rs.xxxxx _______ (Space intentionally left blank) on account of undisclosed toll receipts is xxxxxx____ (Space intentionally left blank) the facts are that the assessee was amended for collection of toll as stated above, for the period from 01/12/2008 to 30/11/2009 by PWD Department. This contract was subsequently renewed for more one year i.e.01/12/2009 to 30/11/2010,vide PWD‟s order 30/11/2009. Thereafter a complaint was received by SP and District Magistrate Osmanabad against the assessee in regard to collection of unauthorized toll by issuing bogus tickets for denomination of ₹50/-, ₹ 70/-,₹ 120/- and ₹180 instead of authorized ticket of ₹5/-,10/-,15/- and ₹20/-. District Special Branch of police Osmanabad had conducted raid on 27/08/2010 at Yengur Toll Plaza. During the raid police seized bogus toll tickets of denomination of ₹50/-, ₹10/-,₹120/- and ₹.180/-. As a result of police raid, the renewed contract for collection of toll at Yenegur Bridge at Pune-Solapur-Hyderabad Road NH No. 9 was, terminated by the PWD in August 2010, vide their letter 30/08/2010. On receipt of such information from the Osmanabad Police Department, the assessment was finalized in the case of present assessee in which an addition of ₹6,05,47,016/- inter alia, was made on a counter excess tool collection by issue of bogus toll receipts. This addition was disputed in appeal The ld.CIT(A)vide Appeal No. NSK/CIT(A)-1/285/2013-14, dated 09/04/2014 has also confirmed this addition. While confirming this addition, the CIT(A) has observed in his appellate order, as under, which is reproduced verbatim: “7.12 In fact the circumstances of the case I am of the c onsidered opinion that the police raid and post raid enquiries conducted by the police have prove criminal act of the appellant of collecting unauthorized toll by issuing bogus 6 ITA No.662 & 663 /PUN/2017 K.G. Agro Processor Pvt Ltd. tickets. The very fact of termination of the contract by PWD immediately after raid also corroborates the finds of the Police. Involvement of PWD officials in this and entire exercise has also been established by the police. Further, statements of Shri Rajesh Kishan Agarwal and Shri Vinod Goverdhandas Agarwal substantiate the Complaints and subsequent police findings against the appellant company. Hence, addition of 6,05,47,016/- made by the AO on account of unauthorized toll which is based on the recovery of bogus receipts by the police during their raid on 27/08/2010 is confirmed. 7.13 A copy of complaint file before JMFC Court Umarga, statement of Shri Rajesh Kisanlal Agrawal and Shri Vinod Goverdhandas Agarwal and information received from the Superintendent of police, Osmanabad vide letter dated Nil received in this office on 24/03/2014 are annexed as Annexure-I-II, III respectively alongwith the appellate order.” it is significant to mention here that the CIT(A) had made part of his appellate order the important documents on which the addition were made at the original state and subsequently confirmed by him in first appeal. 6. Now, coming to the assessee‟s additional ground communicated by the CIT(A) vide letter dated 13/01/2016 that the AO has earned in estimating undisclosed receipts without rejecting the books of account as per section 145(3) of the I.T. Act, 1961 (for which the assessee has relied number of judicial decisions), it is apt to highlight that the estimated receipts were earned fraudulently and the same cannot find any place in the books of account. Section 145(3) and empowers the AO to reject account books which are unreliable, false or incorrect or incomplete. The AO can reject the books of account on the following grounds: a) AO is not satisfied about the correctness or completeness of the accounts of the assessee. b) Although the accounts of the assessee are correct and complete to satisfaction of the AO, but the method of accounting employed is such that, in the opinion of the AO profits cannot be correctly arrived there from. 7 ITA No.662 & 663 /PUN/2017 K.G. Agro Processor Pvt Ltd. c) Where the method of accounting adopted by the assessee has not been irregularly followed by him or, d) where accounting Standard notified by the Central Government from time to time have not been regularly followed by the assessee. In view of the above, the AO may reject the books of account, even if the method of the accounting is acceptable to him if the entries in the books are found to be false and fabricated. If the statement of the present assessee is viewed, it can be seen from the assessment order that the addition is based on the following grounds, which amounts to rejection of books of account in the light of the provision of section 145(3)of the I.T. Act 1961. 1. Total receipts an expenditure reflected in profit and loss account were not substantiated by the assessee. 2. In spite of the opportunity given, assessee did not produce any counter foil of the toll receipts shows and credited as on 31/03/2010. 3. The quantum of undisclosed toll receipts calculated, was xxxxxxx___________ (Space intentionally left blank) to the assessee, which was not a pure estimate but as per information received from the other Government Department, which were also shown the assessee. Thus, the estimation of undisclosed income in the form of toll receipt of the assessee at ₹6,05,47,016/- was after rejection of book result in the light of the provisions of section 145(3) of the I.T.Act, 1961. The job of the AO is not only to compute the income but also to assess the same. The power of the AO are not limited to computation of total income but for making an assessment of understood income. In the process of assessment, an element of estimation of AO is bound to be there. It is well established principle of interpretation that the provisions of the Act should be integrated in order to avoid unreasonable results and that there should be rational construction of the provisions of the Act. In making assessment, provisions of section 145 would be attracted if the books of account maintained by the 8 ITA No.662 & 663 /PUN/2017 K.G. Agro Processor Pvt Ltd. assessee are defective or are incomplete. U/s.143(3), the AO has the power to make an assessment and that making the assessment includes the power to estimate (Calcutta Co. Ltd. Vs. CIT (1959) 37 ITR1(SC). The AO having the power to estimate, the controversy boils down to as to whether there was material to estimate the income for the assessment is to be seen. In the present case, the assessee received the toll collection fraudulently, which was not recorded in the regular books of account. When, there are evidences of receipt of account of “Fraudulent Toll Collection”, the AO was justified in estimating its quantum after appraising this fact to the assessee. Thus, the power of the AO to make an assessment based on relevant material is enshrined in section 143(3). If there is material on records to establish that the assessee has earned receipt by way of fraudulent toll collection, which is not recorded in the regular books of account, it is permissible for the AO to make an assessment on the basis of such material. 8. Thereafter a last and final opportunity was given to the appellant. The appellant vide letter dated 22/11/2016 filed its submission. The submission is perused and summarized as under :-  First is addition of ₹ 6,05,47,016/- is made solely based on the FIR filed by the Police Department.  The FIR cannot be relied upon as the police action was politically motivated.  Rejection of book result is not justified where only allegations of suppression of sales is made.  Net Profit may be estimated on reasonable percentage of total receipts determined by AO. 9. I have considered the facts of the case, the submission of the appellant and the order of the Assessing Officer, the order of my Ld. Predecessor, the order of the Hon‟ble ITAT, various correspondences with the assessee, supra, report of the assessing officer and thereafter the submission file by the Appellant. From the records it is observed that adequate opportunity was granted at the time of original assessment 9 ITA No.662 & 663 /PUN/2017 K.G. Agro Processor Pvt Ltd. proceedings and the assessment order has been passed under section 143 (3). The AO has analysed the entire modus operandi of suppression of toll receipt in detail. It was found that the assessee was issuing bogus toll receipts . In spite of giving opportunity by the Assessing Officer the assessee did not reduce any counter foils of the toll receipts not furnished any proof of expenses incurred for the same. The AO has categorically mentioned in his order that the quantum of undisclosed toll receipts calculated and confronted is not on pure estimate as alleged by the assessee. The assessee was collecting higher toll than the prescribed rates. My Ld. predecessor, in the hearing before him has given him close to 8 opportunities and has done extensive investigation in the case and thereafter has passed a very detailed appellate order in which he has concurred with the finding of the Assessing Officer and has held that the appellant has suppressed the toll receipts to the amount of ₹6,05,47,016/-. My learned Predecessor, has added in his appellate order, survey report, the police report, the statement recorded, termination of contract by PWD, factual report of executive engineer, National Highway Division Osmanabad and has passed a detailed order. Thus it is not a case where the appellant was not given adequate opportunity or he has unaware of the relevant documents on which the revenue had relied on. From the order of my Ld. predecessor, it is evident that the necessary document has been made part of appellate order. I do not find any incongruity in the appellate order passed by my learned predecessor, vide his order No.NSK/285/ dated xxxxxxxx__________(Space intentionally left blank) and therefore the ground raised by the appellant of not granting proper opportunity of being heard is rejected. It is also opined that it is the appellant who is not attending daily xxxxxxxxx ______________ (Space intentionally left blank) and not co-operating by providing requisite details. The ground raised of not providing adequate opportunity is devoid of merit and stands rejected. 10. I agree with the findings of the AO in the demand report that the books do not report true state of affairs in the case of the assessee has employed fraudulent means to suppress his told receipts. This is 10 ITA No.662 & 663 /PUN/2017 K.G. Agro Processor Pvt Ltd. confirmed by the investigation made by the police, the survey conducted by the AO where the director has admitted the discrepancies in survey conducted u/s 133A and has also confirmed the disclosure of additional income to the tune of ₹ 75,00,785. This statement given at the time of survey was not retracted my Ld. Predecessor, on his Independent examination and investigation has confirmed a suppression of toll receipt of ₹ 6,05,47,016. 11. In the instant case it is admitted fact that the book results were not correct assessee has made suppression of toll receipts which is evidenced from the order of the Assessing Officer, from the order of my learned predecessor the facts and submission on record. Total receipts and expenditure in Profit & Loss A/c where neither substantiated before Assessing Officer nor before my ld. predecessor not before me. At the time of current proceedings also the appellant did not produce any proof for told receipt or expenses. Therefore, it is an admitted fact that the books do not represent correct state of affairs of the appellant. 12 Section 145 of the I.T. Act states that if the Assessing Officer is not satisfied about the correctness of completeness of accounts of the assessee he can make the best judgment assessment. Simply because the Assessing Officer in his order has not written that the books of account are rejected does not be vitiate the order. I fail to understand that by not specifically writing in the assessment order that books of account have not been rejected what prejudice has been caused to the assessee. The argument of appellant that addition has been made only on FIR Report and police where politically motivated is not bad any credible evidence and is absolutely incorrect and stands dismissed. 13. On perusal of record, it is observed that while estimating the book result the Assessing Officer had forwarded the estimation by way of show cause notice to the assessee which I find it is very reasonable cause dated 25/03/2013 which is scanned and reproduced as under :- Space intentionally left blank 11 ITA No.662 & 663 /PUN/2017 K.G. Agro Processor Pvt Ltd. x x x x x x 13.1 The show cause given by the AO depicts that AO has adopted a rational basis to estimate expenses. The appellant has not brought an iota of evidence on record to controvert the findings of the AO. 13.2 The appellant has not been able to produce any details regarding the toll expenses incurred. In its support he has only filed the audit report bereft of any supporting documentary or corroborative evidences to prove that the expenses have been incurred. At no stage of proceedings the appellant has produced any evidence to prove the bonafide of the expenses. 13.3 The word „evidence‟ as used in section 143(3) obviously cannot be confined to direct evidence. The word is comprehensive enough to cover circumstantial evidence also. Under the tax Jurisprudence the connotation of term evidence is much wider. U/s.143(3) of the I.T. Act 1961 it is used in generic sense and not in the breasted sense so as to either oral or documentary evidence or both. While the word „evidence‟ may recall the oral and documentary evidence as may be admissible under the Indian Evidence Act, the use of material in section 143(3) shows that the assessing officer, not being a court, can rely upon material, which may not strictly be evidence admissible under the Indian Evidence Act, for the purpose of making an order of assessment. Court often takes judicial notice of certain facts which need not be proved, while administrative and quasi-judicial authorities can take “official notice” of wider varieties of facts which need not be proved before them. Thus, not only in respect of the relevancy but also in respect of proof the material which can be taken into consideration by assessing officer and other authorities under the Act is wider than the evidence which is strictly relevant and admissible under the Evidence Act. 12 ITA No.662 & 663 /PUN/2017 K.G. Agro Processor Pvt Ltd. 13.4 It may be seen from section 142 &143 that A.O. may also act on “the material gathered” by him. The word “material” clearly shows that the A.O. is not fettered by the technical rules of evidence and like, and that he may act on material which may not strictly speaking be accepted evidence in a court of law. All relevant circumstances which we have bearing on the issue which are revealed in the course of assessment enquiry would be covered by the expression “material or evidence” on which A.O. could rely.” This leaves the assessee aggrieved. 5. We have given our thoughtful consideration to rival pleadings qua the instant identical issue of undisclosed toll receipts. The assessee’s case before us is that both the lower authorities have erred in law and on facts in making this impugned addition without either rejecting its books of accounts u/s. 145(3) after following due course of law. And that they have further denied it reasonable opportunity of hearing by way of making available the corresponding documents received from the police authorities as well. Mr. Jain further pleads that the learned lower authorities simply relied on criminal investigation information only while making the impugned addition. 6. The Revenue has strongly supported the impugned based on assessee’s statement recorded during the survey u/s.133(A) as well as in the light of evidence collected during the police investigation and all the relevant material considered during the course of scrutiny. 7. We find no merit in the Revenue’s stand. The assessee has filed a detailed paperbook running 328 pages in first and 32 pages in the second set. 13 ITA No.662 & 663 /PUN/2017 K.G. Agro Processor Pvt Ltd. It transpires from a perusal of the learned lower authorities detailed discussion as well as perusal of case file(s) that neither the Assessing Officer nor the CIT(A) has examined any independent supportive evidence apart from the police authorities correspondence before making the impugned addition. It rather emerges that the assessing authority has taken into consideration the police’s computations of undisclosed income only. Page(s) 91 to 92 of the paper book contain his show cause notice dated 25.03.2013 issued to the assessee reading as follows :- “ As you aware that the assessment proceedings in your case is pending for above referred assessment year. In this connection, it is to further intimate that it has been informed by the Police authorities that you were awarded the contract for collection of toll by National Highway, Osmanabad in respect of collection of toll NH. 09, Solapur to Hydrabad. The toll plaza is situated at Teneguru. It was further confirmed by the police authorities that you were collecting the Higher toll than authorized. After analyzing the printed toll receipt, printed and balance receipt found during the said of (Rs.18,43,64,000/- printed – Rs.1,00,16,880/- found), it was surfaced that the income of Rs.17,43,47,120/- earned. After considering the contract amount, expenditure on salary and on administration charges as worked out, the net income comes to Rs.6,05,47,016/- for A.Y.2010-11. Working thereof is given as under for the F.Y. 2009-10. Brief i. Date of raid by Police Department : 27.08.2010 ii. 01.12.2008 to 30.11.2009 : Rs 2,79,00,000/- iii. 01.12.2009 to 30.11.2010 : Rs 3,02,72,000/- Receipts for the period of 01.04.2009 to 31.08.2010 14 ITA No.662 & 663 /PUN/2017 K.G. Agro Processor Pvt Ltd. (As per police department report) Rs.18,43,64,000/- Rs.1,00,16,880/- Rs.17,43,47,120/- Particulars FY : 2008-09 FY : 2009-10 FY : 2010-11 Total 01.12.2008 to 31.03.2009 (4 months) 01.04.2009 to 30.11.2009 (8 months) ------------------ 01.12.2009 to 31.03.2010 (4 months) 01.04.2010 to 31.08.2010 (5 months) ------------------ 01.04.2010 to 30.11.2010 (8 months) Contract amount paid 93,00,000/- 1,86,00,000/- +1,00,90,672/- 2,86,90,672/- 1,26,13,340/- (*) 5,06,04,012 Salary(**) 8,00,000/- 24,00,000/- 10,00,000/- 42,00,000/- Admin expenditure (***) 1,04,76,952/- 3,14,30,858/- 1,30,96,190/- 5,50,04,000/- Total 2,05,76,952/- 6,25,21,528/- 2,67,09,530/- 10,98,08,012/- Receipts - 12,30,68,560/- 5,12,78,560/- 17,43,47,120/- Income - 6,05,47,016/- 2,45,69,030/- 8,51,16,046/- Receipts for the period from 01.12.2008 to 31.03.2009 not available with Police Department, however expenditure has been considered. (*) Receipts taken for five months only i.e. up to date of Police department raid 27.08.2010. (**) Salary estimated Rs 2 lacs per month on the basis of Police Report (***) Administration expenditure Rs.5,50,04,000/- equally divided in 21 months for the purpose of above calculation. Please explain as to why the amount of Rs. 6,05,47,016/- should not be added as income. Kindly submit your reply on or before 28.03.2013.” 15 ITA No.662 & 663 /PUN/2017 K.G. Agro Processor Pvt Ltd. 8. Coming to the foregoing “borrowed” computations of the assessee’s alleged undisclosed toll receipts in issue, we reiterate that the learned assessing authority has made the impugned addition(s) in light of computation coming from police authorities only. Such a course of action does not even attract a borrowed satisfaction in sec.148 proceedings much less a final addition forming the sole issue supra in light of Kantilal D. Narola v/s DCIT (2021) 125 taxmann.com 348 (Guj.) to name a few precedents. 9. Suffice to say, we put a specific query to the Mr. Sahu that the Assessing Officer as well as CIT(A) nowhere make a specific mention as to whether impugned addition is based on their independent application of mind or not. No satisfactory reply or assessment records indicating anything to the contrary to this clinching fact has come from the revenue side during the course of hearing. The same makes it clear that the impugned addition is merely based on computation arrived by the police authorities than under the provisions of the Act which is a complete code in itself. Mr. Sahu raised a vehement contention that proceedings of a criminal litigation can very well be taken into consideration in tax proceedings. There would be hardly any dispute in Revenue’s instant argument in principle. We however are unable to loose sight of the difference between criminal and income tax proceedings involving evidence to be proved beyond reasonable doubt in former as compared to reasonable preponderance only in latter proceedings; respectively. We further deem it appropriate to quote CIT vs. Indian Express(Madurai) Pvt. Ltd.(1983)140 ITR 705 (Mad.) that proceedings under 16 ITA No.662 & 663 /PUN/2017 K.G. Agro Processor Pvt Ltd. the provisions of the Act are not adversarial in nature since their purpose is to determine correct tax of the concerned assessee only. We conclude in light of the forgoing facts that both the lower authorities have erred in law and facts in making the impugned addition(s) of undisclosed toll receipts of Rs.6,05,47,016/- & Rs.5,12,78,560/-. (supra) in these two assessment years. The same stands deleted. The assessee succeeds in its main substantial ground. All other pleadings are rendered academic. These assessee’s twin appeals are allowed in above terms . A copy of this common order be placed in the respective files. Order pronounced in the Open Court on this 12 th day of May, 2022. Sd/- Sd/- (DR.DIPAK P.RIPOTE) (S.S. GODARA) लेखध सदस्य/ ACCOUNTANT MEMBER न्यधनयक सदस्य/JUDICIAL MEMBER पपणे / Pune; ददनधांक / Dated : 12 th May, 2022. Ashwini आदेश की प्रनतनलनप अग्रेनषत / Copy of the Order forwarded to : 1. अपऩलधथी / The Appellant. 2. प्रत्यथी / The Respondent. 3. The CIT(A)-1, Nashik. 4. The Pr.CIT-1, Nashik. 5. नवभधगऩय प्रनतनननध, आयकर अपऩलऩय अनधकरण, “ए” बेंच, पपणे / DR, ITAT, “A” Bench, Pune. 6. गधर्ा फ़धइल / Guard File. आदेशधनपसधर / BY ORDER, // True Copy // Senior Private Secretary आयकर अपऩलऩय अनधकरण, पपणे / ITAT, Pune. 17 ITA No.662 & 663 /PUN/2017 K.G. Agro Processor Pvt Ltd. S.No. Details Date Initials 1 Draft dictated on 21.04.2022 2 Draft placed before author 06.05.2022 3 Draft proposed & placed before the Second Member 4 Draft discussed/approved by Second Member 5 Approved Draft comes to the Sr. PS/PS 6 Kept for pronouncement on 7 Date of uploading of Order 8 File sent to Bench Clerk 9 Date on which the file goes to the Head Clerk 10 Date on which file goes to the A.R. 11 Date of Dispatch of order