KAMDHENU CEMENT LTD., Jaipur V. ACIT, Alwar

ITA 97/JPR/2013

• Counselvise Citation: [2014] 140 COUNSELVISE.COM (IT) 74856 (ITAT-JAIPUR)
• Duration Of Justice: 1 year(s) 1 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-02-2014
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: B
• Assessment Year: 2008-2009
• Appeal Filed On: 28-01-2013
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: A K KHANDELWAL
• Assessee Lawyers: S L PODDAR
• Keywords: Loose papers; Opportunity of being heard; Revenue expenditure; Capital expenditure
• Section: 133A; 153A; 37(1); 132

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL JAIPUR BENCH, JAIPUR ( BEFORE SHRI HARI OM MARATHA AND SHRI N.K. SAINI ) ITA NO. 97/JP/2013 ASSESSMENT YEAR: 2008-09 PAN: AADCK 0766 F M/S. KAMDHENU CEMENT LTD. VS. THE DCIT 5/2, PUNJABI BAGH EXTN. CLUB CENTRAL CIRCLE CLUB ROAD, DELHI-110015 ALWAR (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI S.L.PODDAR DEPARTMENT BY : SHRI A.K. KHANDELWAL DATE OF HEARING : 27.01.2014. DATE OF PRONOUNCEMENT : 28.02.2014 ORDER PER HARI OM MARATHA, J.M. THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST TH E ORDER OF THE LD CIT(A)-CENTRAL, JAIPUR DATED 31-12-2012 FOR THE A. Y. 2008-09. 2.1 BRIEFLY STATED, THE FACTS OF THE CASE ARE THAT THE ASSESSEE IS A COMPANY IS ENGAGED IN THE BUSINESS OF TRADING OF CEMENT, PO P AND WALL PUTTY. A SEARCH MADE U/S 132 AND A SURVEY U/S 133A OF THE IN COME-TAX ACT, 1961 (THE ACT FOR SHORT) WERE CARRIED OUT BY THE INCOM E-TAX DEPARTMENT IN RESPECT OF VARIOUS MEMBERS OF A GROUP KNOWN AS K AMDHENU GROUP IN 2 COMMON PARLANE, ON 17-09-2008. THE MEMBERS OF THI S GROUP ARE MAINLY THE DIRECTORS OF THIS COMPANY. THIS COMPANY IS REL ATED TO SHRI PRADEEP AGARWAL AND IS KNOWN AS A SUB-GROUP OF KAMDHENU G ROUP. DURING THE COURSE OF THIS SEARCH, CASH, JEWELLERY, STOCK-IN-TR ADE, VALUABLES, DOCUMENTS, BOOKS OF ACCOUNT AND LOOSE PAPERS WERE FOUND AND SE IZED FROM THE PREMISES OF THE MEMBERS OF THE SUB-GROUP NAMED PRADEEP AGAR WAL. CONSEQUENT UPON THIS SEARCH, NOTICE U/S 153A OF THE ACT DATED 22-01-2010 WAS ISSUED TO THIS ASSESSEE WHO THROUGH LETTER DATED 25-04-2011 REQUESTED THAT THE ORIGINAL RETURN, DATED 30-08-2009, FILED BY THE AS SESSEE COMPANY MAY BE TREATED AS THE RETURN FILED IN RESPONSE TO THIS NOT ICE. EVENTUALLY, THE ASSESSMENT U/S 153A READ WITH SECTION 143(3), OF TH E ACT WAS COMPLETED ON 30-12-2011 AT RS. 37,93,390/- AS UNDER:- INCOME DECLARED IN ORIGINAL RETURN 3,57,283 ADD: AS PER PARA 8, SUPRA 27,56,109 ADD: AS PER PARA 9, SUPRA 6,80,000 TOTAL INCOME 37,93,392 ROUNDED OFF 37,93,390 2.2 AGGRIEVED, THE ASSESSEE PREFERRED AN APPEAL BEF ORE THE LD CIT(A) WHO HAS CONFIRMED BOTH THE ABOVE ADDITIONS. 2.3 THE ASSESSEE IS FURTHER AGGRIEVED AND HAS FILED THE SECOND APPEAL. THE APPELLANT HAS RAISED ONE LEGAL GROUND THAT THE ASSE SSMENT ORDER IS LIABLE TO BE QUASHED BEING DEVOID AB INITIO. HOWEVER, DURING HE ARING, THE GROUND NO.1 3 I.E. LEGAL GROUND WAS NOT PRESSED BY THE LD. AR OF THE ASSESSEE, THEREFORE, THIS GROUND STANDS DISMISSED AS NOT PRESSED. THE G ROUND NO 4 OF THE ASSESSEE IS GENERAL IN NATURE WHICH NEEDS NO ADJUDICATION. 3.1 ON MERITS THE ASSESSEE HAS CHALLENGED BOTH THE CONFIRMED ADDITIONS. GROUND NO. 2 PERTAINS TO CONFIRMATION OF ADDITION OF RS. 27,56,109/- ADDED ON ACCOUNT OF DEFERRED REVENUE EXPENDITURE NOT WRIT TEN OFF. THE FACTS APROPOS THIS GROUND ARE THAT THE ASSESSEE HAS CLAIM ED DEDUCTION OF RS. 27,56,109/- ON ACCOUNT OF DEFERRED REVENUE EXPENDIT URE, NOT WRITTEN OFF, IN ITS COMPUTATION OF INCOME. THE A.O. HAS DISALLOW ED AND HAS ADDED IN ITS HANDS. IN THE FIRST APPEAL, THE LD CIT(A) HAS CONFI RMED THIS ADDITION. THE ASSESSEE-COMPANY IS FURTHER AGGRIEVED. 3.2 BEFORE US, BOTH THE PARTIES HAVE REITERATED THE IR ORIGINAL ARGUMENTS IN THIS REGARD. IT WAS ARGUED BY THE LD. AR THAT THE A .O. HAS DISALLOWED THE ASSESSEES CLAIM OF RS. 27,56,109/- WHICH HAS BEEN CLAIMED AS DEFERRED REVENUE EXPENDITURE ON ADVERTISEMENT AND PUBLICITY AND IT HAS BEEN CLAIMED IN THE COMPUTATION SHEET OF INCOME. HE HAS ARGUED T HAT THE A.O. HAS NOT GIVEN ANY GOOD GROUND FOR DISALLOWING THIS EXPENDI TURE AND THE ONLY REASON MENTIONED IN THE ORDER IS THAT THE ASSESSEE HAS SHO WN THIS AMOUNT EVEN IN THE BALANCE SHEET AT THE SAME TIME IT HAS BEEN CLAIMED AS DEFERRED REVENUE EXPENDITURE. ACCORDING TO THE LD. AR , THE A.O. HAS NOT CLEARLY UNDERSTOOD 4 THIS CLAIM.. IT WAS STATED THAT THE TOTAL EXPENDITU RE ON ADVERTISEMENT AND PUBLICITY WAS OF RS. 41,03,493/-. OUT OF THIS, RS. 13,47,384/- PERTAINED TO THE PERIOD AFTER THE START OF BUSINESS AND THE REMAININ G EXPENDITURE PERTAINS TO PRE-OPERATIVE OF BUSINESS. THE EXPENDITURE INCURRED AFTER THE START OF THE BUSINESS HAS BEEN CLAIMED IN THE PROFIT AND LOSS AC COUNT AND THE PRE- OPERATIVE EXPENDITURE TO THE TUNE OF RS. 27,56,109/ - HAS BEEN CLAIMED IN THE COMPUTATION OF INCOME AND NOT IN THE PROFIT AND L OSS ACCOUNT. IT WAS STATED THAT DUE TO THIS ACCOUNTING ADOPTED BY THE ASSESSEE , THIS CLAIM HAS NOT BEEN ROUTED THROUGH PROFIT AND LOSS ACCOUNT AND IT IS REFLECTED IN THE BALANCE SHEET. IT WAS VEHEMENTLY ARGUED THAT THE A.O. HAS NOT HELD THAT THIS EXPENDITURE DOES NOT PERTAIN WHOLLY AND EXCLUSIVELY TO ASSESSEES BUSINESS AND IS NOT ALLOWABLE OR THAT IT IS NOT REASONABLE AS PER LAW BUT ONLY ON TECHNICALITY OF THE MODE IN WHICH THIS CLAIM HAS BE EN MADE, THIS CLAIM HAS BEEN DISALLOWED BY THE A.O. AND CONFIRMED BY THE LD CIT(A). 3.3 ON THE OTHER HAND, LD DR HAS SUPPORTED THE ORD ERS OF THE AUTHORITIES BELOW BESIDES SUBMITTING THAT OUT OF TOTAL EXPENDI TURE INCURRED OF RS. 41,03,493/- THE ASSESSEE HAS DEBITED A SUM OF RS. 1 3,47,394/- IN THE PROFIT AND LOSS ACCOUNT AND REMAINING AMOUNT OF RS. 27,5 6,109/- HAS BEEN SHOWN IN THE BALANCE SHEET AND THEREFORE, IT HAS BEEN R IGHTLY DISALLOWED. 5 3.4 AFTER CONSIDERING THE RIVAL SUBMISSIONS, WE HAV E FOUND THAT THE CLAIM OF THE ASSESSEE IS CORRECT IN TERMS OF THE PROVISIO NS OF SECTION 37(1) OF THE ACT. IN THIS REGARD, RELIANCE IS PLACED BY THE LD. AR ON THE DECISION OF THE CASE OF MADRAS INDUSTRIAL INVESTMENT CORPORATION LT D. VS LD CIT(A) (1997) 225 ITR 802 (SC). IN THIS CASE, IT HAS BEEN HELD TH AT ORDINARILY, REVENUE EXPENDITURE INCURRED WHOLLY AND EXCLUSIVELY FOR THE PURPOSE OF BUSINESS MUST BE ALLOWED IN ITS ENTIRETY IN THE YEAR IN WHIC H IT HAS BEEN INCURRED. IT CANNOT BE SPREAD OVER A NUMBER OF YEARS EVEN IF THE ASSESSEE HAS WRITTEN IT OFF IN HIS BOOKS OVER A PERIOD OF YEARS. IN FACT, A S PER SETTLED LAW, THE NATURE OF EXPENDITURE WHICH IS NORMALLY TREATED AS DEFERR ED REVENUE IS SUCH THAT, ALTHOUGH THE BENEFIT ARISING THEREFROM MAY BE EXTEN DED AND SPREAD OVER FOR SAFE ACCOUNTING PERIODS BUT THE SAME CANNOT BE DEFI NITELY ASSIGNED TO A PARTICULAR PERIOD AS THE SAME IS INTANGIBLE IN NATU RE. ADMITTEDLY, THIS EXPENDITURE HAS NOT RESULTED INTO CREATION OF ANY C APITAL ASSET EITHER TANGIBLE OR INTANGIBLE AND IN SUCH CIRCUMSTANCES, IT WOULD B E FARFETCHED TO TREAT THE EXPENDITURE AS CAPITAL IN NATURE. THERE MAY BE OCCA SIONS WHEN THE ASSESSEE MAY HAVE MADE ENTRIES IN THE BOOKS OF ACCOUNT WHICH ARE NOT IN CONFORMITY WITH THE CORRECT PRINCIPLES OF ACCOUNTING AND SOMET IMES THE ASSESSEE MAY TRY TO CONCEAL THE PROFIT OR LOSSES AND IN SUCH CASES T HE ENTRIES MADE BY THE ASSESSEE CANNOT BE REGARDED AS CONCLUSIVE ONE. THE A.O. IS REQUIRED TO 6 EXAMINE AND CONSIDER THE TRUE NATURE OF THE TRANSAC TIONS TO FIND OUT TRUE FACTS. THUS MERE DIVERGENCE BETWEEN ACCOUNTING RECO RD AND TAX TREATMENT CANNOT LEAD TO ANY CONCLUSION AS THE TREATMENT GIV EN CANNOT BE CONCLUSIVE OF ITS NATURE. THE HON'BLE SUPREME COURT IN THE CAS E OF SUTLEJ COTTON MILLS LTD. VS CIT (1979) 116 ITR 1 (SC) HAS HELD THAT W HETHER THE ASSESSEE IS ENTITLED TO A PARTICULAR DEDUCTION OR NOT WILL DEPE ND ON THE PROVISIONS OF LAW RELATING THERETO AND NOT ON THE VIEW WHICH THE ASSE SSEE MIGHT TAKE. THIS DECISION ALSO SEEMINGLY SUPPORTS THE CASE OF THE AS SESSEE. THIS LEGAL POSITION HAS ALSO BEEN ACCEPTED BY THE LD CIT(A) IN PARA 6.5 AT PAGE 20 AND IN THE LAST FEW SENTENCES WHEN HE MENTIONS THAT THE ENTRIES MA DE ALONE IN THE BOOKS OF ACCOUNT MAY NOT BE DETERMINATIVE OF ANY INCOME OR P ROFIT. HE HAS OBSERVED THAT WHEN ANY EXPENDITURE IS INCURRED FROM WHICH TH E ASSESSEE DERIVES A BENEFIT OF AN ENDURING NATURE , IT HAS TO BE TREATE D AS A CAPITAL EXPENDITURE. THE ASSESSEE HAS INCURRED ENTIRE EXPENDITURE IN THE SAME F.Y. WHICH IS RELATED TO A.Y. 2008-09, UNDER CONSIDERATION. NOW W E HAVE TO SEE IF THE ENTIRE EXPENDITURE WAS INCURRED FOR THE SAME F.Y. A ND THE ASSESSEE HAS NOT CLAIMED IT IN THE PROFIT AND LOSS ACCOUNT THEN IN THAT CASE THE ASSESSEE CLAIM THIS EXPENDITURE IN THE COMPUTATION OF INCOME OR NOT. WE HAVE ALREADY DISCUSSED THAT IT IS THE DUTY OF THE A.O. TO MAKE CORRECT COMPUTATION OF INCOME / LOSS ON THE BASIS OF RETURN OF INCOME FILE D FOR A PARTICULAR 7 ASSESSMENT YEAR. ANY CLAIM WHICH IS NOT LEGALLY ALL OWABLE HAS TO BE DISALLOWED AND ANY CLAIM WHICH IS NOT PROPERLY MADE AS PER THE PROVISIONS OF THE ACT HAS ALSO TO BE ALLOWED BY THE A.O. THE A .O. IS BOUND TO ALLOW THE SAME AS PER SETTLED PRINCIPLE. IT IS TRUE THAT WHEN THE ASSESSEE ADOPTS A NOVEL SYSTEM OF ACCOUNTING A SUSPICION DOES ARISE AS TO W HY THE ASSESSEE DID NOT CLAIM THIS EXPENDITURE IN THE PROFIT AND LOSS ACCOU NT IF IT IS RELATED TO CURRENT YEAR. THE EXPLANATION OF THE LD. AR IN THIS REGARD IS THAT IN ORDER TO MAKE BALANCE SHEET PRESENTABLE IN A PROPER WAY BEFORE TH E FINANCIAL INSTITUTION, OBVIOUSLY, WITH A VIEW TO RAISE LOANS, SUCH EXPENSE S WERE NOT CLAIMED IN THE PROFIT AND LOSS ACCOUNT. THUS, IT BECOMES CLEAR AS TO WHY THE ASSESSEE HAS ADOPTED THIS TYPE OF ACCOUNTING. THIS PRACTICE HAS BEEN NORMALLY FOLLOWED BY BUSINESSMEN IN THEIR INTEREST TO RAISE LOANS. TH IS IS NOT PROSCRIBED (PROHIBITED) UNDER THE ACT. THE LD CIT(A) HAS ALSO ENDORSED THIS VIEW BUT HE HAS HASTILY ADDED THAT THIS TYPE OF EXERCISE BY ANY ASSESSEE IS INDICATIVE OF ASSESSEE'S MALAFIDE INTENTION. AS WE HAVE ALREADY S TATED IN SUCH CIRCUMSTANCES A SUSPICION DOES NOT ARISE BUT WHEN O NCE IT IS EXPLAINED SUSPICION GOES OFF, THEREFORE, WE ARE NOT IN AGREE MENT WITH THE REASONS GIVEN BY THE LD CIT(A). WHEN SUCH TYPE OF ACCOUNTI NG IS NOT PROHIBITED UNDER THE ACT HOW CAN IT BE TREATED AS A MALAFIDE I NTENTION OF ANY ASSESSEE, WHO HAS RATHER NOT HIDDEN ANYTHING FROM THE DEPART MENT. 8 3.5 THE LD CIT(A) HAS TRIED TO DISTINGUISH THE RAT IO DECIDENDI RENDERED BY THE JUDGEMENT IN THE CASE OF MADRAS INDUSTRIAL INV ESTMENT CORPORATION LTD. (SUPRA). IN FACT, THE CLEAR RATIO AS WE HAVE DISCU SSED ABOVE IS THAT ORDINARILY, REVENUE EXPENDITURE INCURRED WHOLLY A ND EXCLUSIVELY FOR THE PURPOSE OF BUSINESS MUST BE ALLOWED IN ITS ENTIRETY IN THE YEAR IN WHICH IT IS INCURRED BUT IN THE LIGHT OF THE FACTS OBTAINING IN THAT CASE WHERE THE COMPANY HAD WRITTEN OFF RS. 12,500/- OUT OF TOTAL D ISCOUNT OF RS. 3.00 LACS BEING PROPORTIONATE AMOUNT OF 06 MONTHS TAKING INTO CONSIDERATION THE PERIOD OF 12 YEARS WHICH WAS THE PERIOD OF REDEMPT ION, AS IN THAT CASE ON 10-12-2006, THE ASSESSEE COMPANY HAD MADE PUBLIC IS SUE OF DEBENTURE AND HAD INCURRED TOTAL DISCOUNT EXPENSES OF RS. 3.00 L ACS. THE A.O. HAD TREATED THE ENTIRE EXPENSES AS NOT ALLOWABLE WHEREAS THE TR IBUNAL FOUND IT ALLOWABLE IN THEIR ENTIRETY TO THE TUNE OF RS. 3.00 LACS . I N THE CONTEXT OF SPECIFIC FACTS AND THE CIRCUMSTANCES OF THAT PARTICULAR CASE, THE HON'BLE SUPREME COURT HELD THAT ISSUING DEBENTURE AT A DISCOUNT SPREADS O VER OF MANEY IN ENSUING YEARS SAY FOR 12 YEARS. IN THAT CASE, THE LIABILITY WAS SPREAD OVER TO 12 YEARS. BUT IN THIS CASE, THERE IS NO SUCH LIABILITY SPREAD S TO MANY YEARS. THE ASSESSEE HAS SPENT ENTIRE EXPENDITURE DURING THE F. Y. AND OBVIOUSLY NO TANGIBLE OR INTANGIBLE ASSET HAS BEEN CREATED BY TH IS EXPENDITURE. THEREFORE, THE DECISION OF HON'BLE SUPREME COURT HAS NOT BEEN CORRECTLY INTERPRETED IN 9 THE GIVEN FACTS OF THAT CASE. THE HON'BLE SUPREME C OURT BEING, SPECIFIC TO THE FACTS OF THAT CASE, HAS HELD THAT ALLOWING ENTI RE EXPENDITURE IN ONE YEAR MIGHT GIVE A VERY DISTORTED PICTURE OF THE PROFIT O F A PARTICULAR YEAR. THEREFORE, IN VIEW OF THE FOREGOING DISCUSSIONS, WE ARE OF THE CONSIDERED OPINION THAT THE ENTIRE EXPENDITURE INCURRED IN THI S F.Y. INCLUDING RS. 27,56,109/- IS AN ALLOWABLE EXPENDITURE OF THIS YEA R ONLY. THUS, WE ALLOW THE SAME AND ORDER TO DELETE THE IMPUGNED ADDITION. ACC ORDINGLY, THE GROUND NO. 2 OF THE ASSESSEES APPEAL IS ALLOWED. 4.1 THE FACTS APROPOS GROUND NO. 3 ARE THAT DURIN G THE COURSE OF SEARCH, SEVERAL INCRIMINATING PAPERS SUGGESTING UNDISCLOSED TRANSACTIONS WERE FOUND AND SEIZED. FROM PAGE NO.23 OF THE DOCUMENT SEIZ ED AS ANNEXURE A-6, THE A.O. FOUND THAT IT IS A LEDGER ACCOUNT OF ONE M /S. BIJANADS & FIMS (P) LD (BIJAN ADS). IT WAS NOTICED AS PER THIS PAGE THAT THE ASSESSEE HAD RECEIVED SOME AMOUNTS IN CASH ON SEVERAL OCCASIONS, LIKE RS. 1.00 LAC ON 19-02-2008; RS. 1.00 LAC ON 23-02-2008; RS. 1.5 LAC S ON 25-02-2008; RS. 2.00 LACS ON 01-03-2008 AND RS. 1.3 LACS ON 13- 03-2008 FROM BIJAN ADS TOTALING TO RS. 6.8 LACS WHICH ON VERIFICATIO N WERE NOT FOUND TO BE DISCLOSED IN THE BOOKS OF THE ACCOUNTS BY ASSESSEE . THE ASSESSEE WAS ASKED TO EXPLAIN THE NATURE OF THESE AMOUNTS. IT WAS STAT ED THAT CASH RECEIPT IS A PART OF CASH BOOK OF THE ASSESSEE. HOWEVER, IN SUPP ORT THE ASSESSEE DID NOT 10 PRODUCE THE CASH BOOK. ACCORDINGLY, ENTIRE AMOUNT OF RS. 6.80 LACS RECEIVED BY THE ASSESSEE IN CASH FROMBIJAN ADS HAS BEEN A DDED AS ITS UNDISCLOSED NCOME.. 4.2 IN THE FIRST APPEAL, THE LD CIT(A) HAS CONFIRME D THIS ADDITION. BEFORE HIM A CONTENTION WAS RAISED THAT THE EXPENSE OF RS. 6.80 LACS AGAINST THE SAME INCOME HAS ALREADY SUFFERED TAX IN THE HANDS O F THE DIRECTOR SHRI PRADEEP AGARWAL IN A.YS. 2007-08 AND 2008-09 AND TH E BENEFIT OF THAT TAX SHOULD BE GIVEN, BY WAY OF SET OFF TO THE ASSESSEE COMPANY. BUT THIS CONTENTION WAS ALSO TURNED DOWN BY THE LD CIT(A). A S PER THE ASSESSEE, THIS AMOUNT OF RS. 6.80 LACS, PERTAINS TO TWO ASSESSMENT YEARS BUT THE LD CIT(A) WAS NOT AGREEABLE AND HAS CONFIRMED THIS ENTIRE ADD ITION IN ONE ASSESSMENT ON THE REASONING THAT SUCH PLEA WAS NOT RAISED BEFO RE THE A.O. 4.3 BEFORE US, BOTH THE PARTIES HAVE REITERATED TH EIR ARGUMENTS TAKEN BEFORE THE LD CIT(A). IT WAS ARGUED BY THE LD. AR THAT THESE ARE SIMPLY ROUGH PAPERS AND NOTINGS NOT RELATABLE TO THE BUSIN ESS OF THE ASSESSEE. HE FURTHER ARGUED THAT THE A.O. DID NOT CONDUCT ANY EN QUIRY TO ESTABLISH THE LINK BETWEEN PAPERS WITH THE BUSINESS AFFAIRS OF THE ASS ESSEE. HE ARGUED THAT EVEN THE A.O. FAILED TO MAKE ANY ENQUIRY FROM BIJAN ADS . HE ARGUED THAT WRITER OF THIS PAGE WAS NOT EXAMINED AND THUS THIS PAPER HAS BEEN TERMED BY HIM AS DEAF AND DUMB PAPER WHICH IS REQUIRED TO B E IGNORED. HE HAS 11 FURTHER ARGUED THAT THE A.O. HAS OBSERVED THAT THE ASSESSEE HAS RECEIVED PAYMENTS FROM BIJAN ADS WHEREAS THE ASSESSEE HAS PAID THE AMOUNT IN CONNECTION WITH LAUNCHING EXPENSES. 4.4 ON THE OTHER HAND, THE LD DR HAS SUPPORTED THE ORDERS OF THE AUTHORITIES BELOW. 4.5 WE HAVE HEARD THE RIVAL SUBMISSIONS AND HAVE CA REFULLY PERUSED THE ENTIRE MATERIAL ON RECORD. WE HAVE FOUND THAT THE P AGE IN QUESTION IS A LEDGER ACCOUNT OF BIJAN ADS PERTAINING TO THE PERIOD 01 -01-2008 TO 12-09-2008. THUS THIS PAPER RELATE TO TWO ASSESSMENT YEARS VIZ . A.Y. 2008-09 AND 2009- 10 AS THE LEDGER ACCOUNT PERTAINS TO TWO ASSESSMENT YEARS. WE HAVE FOUND THAT ON THIS PAPER, THE NAME OF M/S. KAMDHENU CEMEN T LTD. IS NOT FOUND MENTIONED BUT SINCE THIS PAPER WAS FOUND DURING SE ARCH FROM THE CUSTODY OF THE ASSESSEE, IT IS THE DUTY OF THE ASSESSEE COMPAN Y TO EXPLAIN THE NATURE OF THIS PAPER. THE ASSESSEE CANNOT ESCAPE BY SIMPLY ST ATING THAT NEXUS OF THE ASSESSEE WITH THIS REGARD HAS NOT BEEN ESTABLISHED. IT IS THE DUTY OF THE ASSESSEE TO EXPLAIN THIS PAPER. THE ASSESSEE SHOULD HAVE BROUGHT SOME EVIDENCE OR BIJAN ADS TO PROVE THIS PAPER. ANY ADDITION IN THE HANDS OF THE COMPANYS DIRECTOR CANNOT DIRECTLY AFFECT THE R ESULT OF THIS CASE UNLESS THE VERY SAME AMOUNT HAS BEEN CONSIDERED AND ADDED IN HIS HANDS BUT IN THE TOTALITY OF THE COUNTER SUBMISSIONS OF THE PARTIES, WE ARE OF THE CONSIDERED 12 OPINION THAT THIS HAS NOT BEEN PROPERLY EXAMINED BY THE A.O. THEREFORE, IT BECOMES IMPERATIVE FOR US THAT WE MUST RESTORE THIS ISSUE TO THE FILE OF THE A.O. WITH THE DIRECTION TO DECIDE THIS ISSUE AFRESH BY PROVIDING REASONABLE OPPORTUNITY OF BEING HEARD IN THE LIGHT OF THE OBT AINING FACTS OF THIS ISSUE. THUS THIS GROUND IS ALLOWED FOR STATISTICAL PURPOSE S 5.0 IN THE RESULT, APPEAL OF THE ASSESSEE IS PARTLY ALLOWED AND PARTLY ALLOWED FOR STATISTICAL PURPOSES. THE ORDER IS PRONOUNCED IN THE OPEN COURT ON 28-0 2-2014. SD/- SD/- ( N.K. SAINI ) (HARI OM MARATHA ) ACCOUNTANT MEMBER JUDICIAL MEMBER *MISHRA COPY FORWARDED TO :- 1. M/S. KAMDHENU CEMENT , DELHI 2. THE DCIT, CENTRAL CIRCLE, ALWAR 3. THE LD.CIT(A) 4. THE LD CIT 5. THE D/R 6. GUARD FILE (ITA NO.97/JP/2013) BY ORDER, AR ITAT, JAIPUR 13 14