DCIT, Ernakulam V. M/s Bhageeratha Engineering Ltd, Cochin

ITSSA 1/COCH/2009

• Counselvise Citation: [2016] 122 COUNSELVISE.COM (IT) 2204 (ITAT-COCHIN)
• Duration Of Justice: 7 year(s) 4 month(s) 27 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 08-06-2016
• Appeal Filed By: Department
• Bench Allotted: DB
• Next Hearing Date: 23-04-2012
• Assessment Year: misc
• Appeal Filed On: 12-01-2009
• Court: TRIBUNAL
• Department Lawyers: ABHIMANYU SINGH YADAV
• Assessee Lawyers: SARANGAN SHRI P C VARGHESE
• Keywords: Revision of order; Principle of natural justice; Block assessment; Tax effect
• Section: 143(3); 263

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL COCHIN BENCH, COCHIN BEFORE S/SHRI N.R.S.GANESAN, JM AND B.R.BASKAR AN, AM I.T.(SS)A NO. 210/COCH/2005 & IT(SS) A NO. 01/COCH/2009 BLOCK PERIOD: 1-4-1996 TO 31-3-2002 AND BROKEN PE RIOD UPTO 9.10.2002. 1.THE ASSISTANT COMMISSIONER OF INCOME-TAX,CIRCLE-1(1), ERNAKULAM. 2.THE DEPUTY COMMISSIONER OF INCOME-TAX,CIRCLE-1(1), ERNAKULAM VS. M/S. BHAGEERATHA ENGINEERING LTD. KOCHI-30 [PAN: AABCB 1386N] (REVENUE-APPELLANT) (ASSESSEE - RESPONDENT) I.T.(SS)A NO. 28/COCH/2007 & IT(SS)A NO. 57/COCH/2008 BLOCK PERIOD: 1-4-1996 TO 31-3-2002 AND BROKEN PE RIOD UPTO 9.10.2002. M/S. BHAGEERATHA ENGINEERING LTD. KOCHI-30 [PAN: AABCB 1386N] VS. THE ASSISTANT COMMISSIONER OF INCOME-TAX,CIRCLE-1(1), ERNAKULAM. (ASSESSEE - APPELLANT) (REVENUE - RESPONDENT) REVENUE BY SHRI ABHIMANYU SINGH YADAV, JR. DR ASSESSEE BY SHRI SARANGAN FOR SHRI P.C.VARGHESE DATE OF HEARING 23/04/2012 DATE OF PRONOUNCEMENT 08/06/2012 O R D E R PER B.R.BASKARAN, ACCOUNTANT MEMBER: ALL THE ABOVE APPEALS RELATE TO THE BLOCK ASSESSME NTS COMPLETED IN THE HANDS OF THE ASSESSEE. HENCE THEY WERE HEARD TOGETHER AND A RE BEING DISPOSED OF BY THIS COMMON ORDER FOR THE SAKE OF CONVENIENCE. THE APPE AL NUMBERED AS IT(SS)A I.T.(SS)A. NOS. 210 /COCH/2005, 28/COCH/2007, 57/COCH/2008& 01/COCH/2009 2 210/COCH/2005 RELATE TO THE BLOCK ASSESSMENT ORIGIN ALLY PASSED IN THE HANDS OF THE ASSESSEE. THE APPEAL NUMBERED AS IT(SS)A 28/COCH/0 7 RELATE TO THE REVISION ORDER PASSED BY LD CIT FOR THE BLOCK PERIOD. THE OTHER T WO APPEALS RELATE TO THE BLOCK ASSESSMENT ORDER PASSED FOR GIVING EFFECT TO THE RE VISION ORDER REFERRED SUPRA. 2. WE SHALL FIRST TAKE UP THE APPEAL NUMBERED A S IT(SS)A 28/COCH/07, WHICH IS FILED BY THE ASSESSEE CHALLENGING THE VALIDITY OF THE REV ISION ORDER PASSED BY THE ADMINISTRATIVE COMMISSIONER. WE HAVE HEARD THE PAR TIES IN THIS REGARD AND ALSO PERUSED THE RECORD. WE NOTICE THAT THE ADMINISTRA TIVE COMMISSIONER, IN THE REVISION ORDER, HAS ONLY DIRECTED THE AO TO EXAMINE THE ISSU ES WHICH WERE OMITTED TO BE EXAMINED IN THE ORIGINAL BLOCK ASSESSMENT PROCEEDIN G. 3. BEFORE GOING INTO THE MERITS OF THE ISSUE, WE WOULD LIKE TO DISCUSS ABOUT THE LEGAL POSITION WITH REGARD TO THE POWER OF LEARNED CIT TO INVOKE REVISION PROCEEDINGS UNDER SECTION 263 OF THE ACT. THE SCOPE OF REVISION PROC EEDINGS INITIATED UNDER SECTION 263 OF THE ACT WAS CONSIDERED BY HON'BLE BOMBAY HIGH COURT , IN THE CASE OF GRASIM INDUSTRIES LTD. V CIT (321 ITR 92) BY TAKING INTO ACCOUNT THE LAW LAID DOWN BY THE HON'BLE SUPREME COURT. THE RELEVANT OBSERVATIONS ARE EXTRA CTED BELOW: SECTION 263 OF THE INCOME-TAX ACT, 1961 EMPOWERS TH E COMMISSIONER TO CALL FOR AND EXAMINE THE RECORD OF ANY PROCEEDINGS UNDER THE ACT AND, IF HE CONSIDERS THAT ANY ORDER PASSED THEREIN, BY THE ASS ESSING OFFICER IS ERRONEOUS IN SO FAR AS IT IS PREJUDICIAL TO THE INT ERESTS OF THE REVENUE, TO PASS AN ORDER UPON HEARING THE ASSESSEE AND AFTER A N ENQUIRY AS IS NECESSARY, ENHANCING OR MODIFYING THE ASSESSMENT OR CANCELLING THE ASSESSMENT AND DIRECTING A FRESH ASSESSMENT. THE KE Y WORDS THAT ARE USED BY SECTION 263 ARE THAT THE ORDER MUST BE CONSIDERE D BY THE COMMISSIONER TO BE ERRONEOUS IN SO FAR AS IT IS PREJUDICIAL TO THE INTERESTS OF THE REVENUE. THIS PROVISION HAS BEEN INTERPRETED BY THE SUPREME COURT IN SEVERAL JUDGMENTS TO WHICH IT IS NOW NECESSARY TO TURN. IN MALABAR INDUSTRIAL CO. LTD. V. CIT [2000] 243 ITR 83, THE SUPREME COURT HELD THAT THE PROVISION CANNOT BE INVOKED TO CORRECT EACH AND EVERY TYPE OF MISTAKE OR ERROR COMMITTED BY THE ASSESSING OFFICER AND IT IS ON LY WHEN AN ORDER IS ERRONEOUS THAT THE SECTION WILL BE ATTRACTED. THE SUPREME COURT HELD THAT AN INCORRECT ASSUMPTION OF FACT OR AN INCORRECT APP LICATION OF LAW, WILL SATISFY THE REQUIREMENT OF THE ORDER BEING ERRONEOUS. AN ORDER PASSED IN I.T.(SS)A. NOS. 210 /COCH/2005, 28/COCH/2007, 57/COCH/2008& 01/COCH/2009 3 VIOLATION OF THE PRINCIPLES OF NATURAL JUSTICE OR W ITHOUT APPLICATION OF MIND, WOULD BE AN ORDER FALLING IN THAT CATEGORY . THE EXPRESSION PREJUDICIAL TO THE INTERESTS OF THE REVENUE, THE SUPREME COURT HELD, IT IS OF WIDE IMPORT AND IS NOT CONFINED TO A LOSS OF TAX. W HAT IS PREJUDICIAL TO THE INTEREST OF THE REVENUE IS EXPLAINED IN THE JUDGMEN T OF THE SUPREME COURT (HEADNOTE) : THE PHRASE PREJUDICIAL TO THE INTERESTS OF THE RE VENUE HAS TO BE READ IN CONJUNCTION WITH AN ERRONEOUS ORDER PASSED BY THE A SSESSING OFFICER. EVERY LOSS OF REVENUE AS A CONSEQUENCE OF AN ORDER OF THE ASSESSING OFFICER, CANNOT BE TREATED AS PREJUDICIAL TO THE INTERESTS O F THE REVENUE, FOR EXAMPLE, WHEN AN INCOME-TAX OFFICER ADOPTED ONE OF THE COURSES PERMISSIBLE IN LAW AND IT HAS RESULTED IN LOSS OF REVENUE, OR WHERE TWO VIEWS ARE POSSIBLE AND THE INCOME-TAX OFFICER HAS TAKEN ONE VIEW WITH WHICH THE COMMISSIONER DOES NOT AGREE, IT CANNOT BE TREATED AS AN ERRONEOUS ORDER PREJUDICIAL TO THE INTERESTS OF T HE REVENUE UNLESS THE VIEW TAKEN BY THE INCOME-TAX OFFICER IS UNSUSTAINABLE IN LAW. THE PRINCIPLE WHICH HAS BEEN LAID DOWN IN MALABAR I NDUSTRIAL CO. LTD. [2000] 243 ITR 83 (SC) HAS BEEN FOLLOWED AND EXPLAI NED IN A SUBSEQUENT JUDGMENT OF THE SUPREME COURT IN CIT V. MAX INDIA L TD. [2007] 295 ITR 282. IT HAS BEEN HELD BY HONBLE SUPREME COURT IN THE CA SE OF MALABAR INDUSTRIAL CO. LTD, THAT THE NON-APPLICATION OF MIND BY THE AO WOULD RE NDER THE ASSESSMENT ORDER TO BE ERRONEOUS.. IN THE INSTANT CASE, THE LD CIT(A) HAS LISTED OUT THE SEARCH MATERIALS, WHICH HAVE NOT BEEN EXAMINED BY THE AO AND WHICH WO ULD HAVE IMPLICATION TO THE UNDISCLOSED INCOME DETERMINED IN THE HANDS OF THE A SSESSEE. THUS, IT IS SEEN THAT THE AO HAS FAILED TO APPLY HIS MIND ON THOSE MATERIALS AND ON ACCOUNT OF THAT, THE ASSESSMENT ORDER IS RENDERED ERRONEOUS. SINCE THE SAID ISSUES INVOLVE HUGE TAX EFFECT, THE ASSESSMENT ORDER IS ALSO RENDERED AS PREJUDICIA L TO THE INTERESTS OF THE REVENUE. ACCORDINGLY, WE DO NOT FIND ANY INFIRMITY IN THE RE VISION ORDER PASSED BY LD. ADMINISTRATIVE COMMISSIONER. 4. THE APPEAL NUMBERED AS IT (SS)A 01/C/2009 HA S BEEN FILED BY THE REVENUE AGAINST THE ORDER DATED 24.10.2008 PASSED BY LD CIT (A) ON THE ASSESSMENT ORDER PASSED U/S 143(3) WHILE GIVING EFFECT TO THE REVISI ON ORDER PASSED U/S 263 OF THE ACT. I.T.(SS)A. NOS. 210 /COCH/2005, 28/COCH/2007, 57/COCH/2008& 01/COCH/2009 4 THE REVENUE IS CHALLENGING THE JURISDICTION OF THE LD CIT(A) IN ADMITTING AND ADJUDICATING THE APPEAL FILED BY THE ASSESSEE BEFOR E HIM ON THE GROUND THAT THE ASSESSMENT ORDER PASSED ON THE DIRECTIONS OF THE AD MINISTRATIVE COMMISSION WOULD FALL OUTSIDE THE JURISDICTION OF LD CIT(A). THE CONTENT IONS RAISED BY THE REVENUE, IN OUR VIEW, ARE NOT IN ACCORDANCE WITH THE SCHEME OF THE ACT. THE REVENUE HAS NOT ADDUCED ANY AUTHORITY TO THE CONTENTIONS SO RAISED BY IT. IT CAN BE NOTICED THAT THE ADMINISTRATIVE COMMISSIONER ONLY DIRECTS THE AO TO EXAMINE CERTAIN ISSUES AND IT IS THE EXCLUSIVE RIGHT AND PREROGATIVE OF THE AO TO TAKE A VIEW IN ACCORDANCE WITH LAW AFTER THE EXAMINING THE ISSUES THAT WERE SET ASIDE TO HIM BY THE ADMINISTRATIVE COMMISSIONER. THERE CANNOT BE ANY DISPUTE THAT THE VIEW TAKEN BY THE AO CANNOT BE TAKEN AS THE VIEW OF THE ADMINISTRATIVE COMMISSIONE R. IT IS ALSO WELL SETTLED PROPOSITION OF LAW THAT THE ADMINISTRATIVE COMMISSIONER CANNOT IMPOSE HIS VIEWS ON THE ASSESSING OFFICER. IT IS APPOSITE HERE TO EXTRACT THE FOLLO WING OBSERVATIONS MADE BY HONBLE BOMBAY HIGH COURT IN THE CASE OF HARDILLA CHEMICALS LTD VS.CIT (221 ITR 194):- IN OUR OPINION, THOUGH THE APPEAL IS MAINTAINABLE FROM THE FRESH ORDER PASSED BY THE INCOME TAX OFFICER TO GIVE EFFECT TO A REVIS IONAL ORDER OR AN APPELLATE ORDER, ONLY SUCH ISSUES CAN BE AGITATED IN SUCH APP EAL WHICH HAVE NOT ATTAINED FINALITY BY VIRTUE OF EARLIER ORDERS OF THE REVISIO NAL OR APPELLATE AUTHORITIES. IT IS NOT OPEN IN SUCH AN APPEAL TO AGITATE ANY POINT WHI CH HAS ALREADY BEEN DECIDED BY THE REVISIONAL OR THE APPELLATE AUTHORITIES IN T HEIR ORDER. IN THE INSTANT CASE, IT WAS NOT SHOWN TO US THAT TH E LD CIT(A) HAS CONSIDERED ISSUES WHICH HAVE ATTAINED FINALITY IN THE EARLIER PROCEED ING. HENCE, IN VIEW OF THE DISCUSSIONS MADE, WE ARE OF THE VIEW THAT THE ASSESSMENT ORDER PASSED U/S 143(3) R.W.S. 263 CAN VERY WELL BE APPEALED BEFORE THE LD CIT(A) IN RESPE CT OF THE ISSUES WHICH HAVE NOT ALREADY BEEN DECIDED BY THE APPELLATE AUTHORITY. A CCORDINGLY, WE DO NOT FIND ANY MERIT IN THE CONTENTIONS RAISED BY THE REVENUE. 5. WE SHALL NOW TAKE UP THE APPEAL FILED BY THE REVENUE, WHICH IS NUMBERED AS IT(SS)A 210/COCH/2005. THIS APPEAL RELATES TO THE ORDER DATED 1-9-2005 PASSED BY LD CIT(A) AGAINST THE ORIGINAL BLOCK ASSESSMENT ORDER. THE LD CIT(A) HAD DELETED THE ENTIRE AMOUNT ASSESSED AS UNDISCLOSED INCOME IN THE HANDS OF THE ASSESSEE. I.T.(SS)A. NOS. 210 /COCH/2005, 28/COCH/2007, 57/COCH/2008& 01/COCH/2009 5 6. THE FACTS RELATING TO THE SAME ARE DISCUSSED IN BRIEF. THE ASSESSEE IS A PUBLIC LIMITED COMPANY ENGAGED IN UNDERTAKING OF MAJOR CON STRUCTION PROJECTS. A SEARCH ACTION WAS TAKEN IN THE HANDS OF THE COMPANY ON 09- 03-2002 ON RECEIPT OF INFORMATION THAT UNACCOUNTED CASH WAS BEING DELIVERED FROM THE OFFICE OF THE COMPANY TO A PERSON NAMED SRI ANUP KUMAR SHAH, WHO WAS STAYING IN A HOT EL. THE DEPARTMENT SEIZED A CASH OF RS.14,78,500/- FROM SHRI ANUP KUMAR SHAH RE FERRED ABOVE. IN THE SEARCH CONDUCTED IN THE OFFICE PREMISES OF THE ASSESSEE, E VIDENCES DEPICTING UNRECORDED PAYMENTS MADE TO THE OFFICIALS OF NATIONAL HIGH WA Y AUTHORITY OF INDIA (NHAI) WERE FOUND. THE ASSESSEE WAS EXECUTING PROJECTS OF NHAI AT THE RELEVANT POINT OF TIME. THE PAYMENTS MADE TO VARIOUS PERSONS IN VARIOUS YEARS A GGREGATED TO RS.30,25,850/-. THE AO TREATED THE ABOVE SAID PAYMENTS AS WELL AS THE C ASH SEIZED FROM SRI ANUP KUMAR SHAH AS THE UNDISCLOSED INCOME OF THE ASSESSEE. TH E ASSESSEE CHALLENGED THE ORDER OF THE AO BEFORE LD CIT(A), WHO DELETED BOTH THE ADDIT IONS REFERRED ABOVE. HENCE THE REVENUE IS IN APPEAL BEFORE US. 7. THE FIRST ISSUE RELATES TO THE ADDITION OF R S.14,78,500/- RELATING TO THE CASH SEIZED BY THE DEPARTMENT. THE LD CIT(A) DELETED THE SAME ON THE REASONING THAT THE PERSON FROM WHOM THE CASH WAS SEIZED, I.E. SHRI ANUP KUMAR SHAH SHOULD HAVE BEEN CONSIDERED AS THE OWNER OF THE CASH AS PER THE PRES UMPTION PROVIDED U/S 132(4A) OF THE ACT. 8. WE HAVE HEARD THE PARTIES ON THIS ISSUE AND PERUSED THE RECORD. THERE CANNOT BE ANY DISPUTE THAT THE PRESUMPTION PROVIDED U/S 132(4 A) IS A REBUTTABLE PRESUMPTION. THOUGH THE CASH WAS SEIZED FROM SHRI ANUP KUMAR SHA H, HE HAS EXPLAINED THAT THE SAME WAS HANDED OVER TO HIM BY SHRI S.K.JAIN, THE V ICE PRESIDENT OF THE COMPANY. THE AO HAS TAKEN STATEMENTS FROM SHRI S.K.JAIN AND HE H AS ACCEPTED THAT HE HAS GIVEN AN AMOUNT OF RS.15.00 LAKHS TO SHRI ANUP KUMAR SHAH AN D HE FURTHER STATED THAT THE SAID CASH WAS SENT THROUGH A PERSON NAMED SHRI ASHOK KUM AR SINGH. SHRI S.K.JAIN HAS ALSO STATED THAT THE CASH BELONG TO THE ASSESSEE-COMPANY HEREIN. THE AO HAS TAKEN I.T.(SS)A. NOS. 210 /COCH/2005, 28/COCH/2007, 57/COCH/2008& 01/COCH/2009 6 STATEMENT FROM THE CARRIER SHRI ASHOK KUMAR SINGH A LSO, WHO HAS ALSO CONFIRMED THAT THE AMOUNT THAT WAS HANDED OVER TO SHRI ANUP KUMAR SHAH, WAS RECEIVED BY HIM FROM SHRI S.K.JAIN. THE STATEMENTS TAKEN FROM THE THREE PERSONS CLEARLY SHOW THAT THE AMOUNT OF RS.15.00 LAKHS BELONGED TO THE ASSESSEE-C OMPANY HEREIN. THE STATEMENT OF SHRI S.K.JAIN, WHO WAS HOLDING THE RESPONSIBLE POSI TION OF VICE PRESIDENT HAS NOT BEEN REBUTTED BY THE ASSESSEE COMPANY. IN VIEW OF THE A BOVE, THERE WAS NO NECESSITY FOR THE AO TO INVOKE THE PRESUMPTION PROVIDED U/S 132(4 A) OF THE ACT IN THE HANDS OF SHRI ANUP KUMAR SHAH. FURTHER THERE IS NO COMPULSION UN DER THE ACT THAT THE AO SHOULD NECESSARILY INVOKE THE PROVISIONS OF SEC.132(4A) OF THE ACT, AS THE WORDS USED IN THAT SECTION ARE MAY BE PRESUMED. IN VIEW OF THE AB OVE, WE ARE UNABLE TO AGREE WITH THE VIEW EXPRESSED BY THE LD CIT(A) ON THIS ISSUE. WE ALSO NOTICE THAT THE ASSESSEE HAS FAILED TO FURNISH ANY CREDIBLE EXPLANATION WITH REGARD TO THE UNACCOUNTED CASH REFERRED ABOVE. IN VIEW OF THE ABOVE, WE SET ASIDE THE ORDER OF LD CIT(A) ON THIS ISSUE AND RESTORE THE ADDITION MADE BY THE AO. 9. THE NEXT ISSUE RELATES TO THE ADDITION PERTA INING TO THE UNACCOUNTED PAYMENTS CLAIMED TO HAVE BEEN PAID TO THE OFFICIALS OF NHAI. THE ADDITION WAS DELETED BY THE LD CIT(A) ON THE GROUND THAT THE AO DID NOT CONFRONT T HE NHAI OFFICIALS AND THE ASSESSEE COMPANYS OFFICIALS. BUT THE FACT REMAINS THE INCR IMINATING MATERIALS WERE SEIZED FROM THE ASSESSEE AND THERE CANNOT BE ANY DISPUTE THAT I T IS THE RESPONSIBILITY OF THE ASSESSEE TO EXPLAIN THE ENTRIES MADE IN THOSE DOCUM ENTS. FROM THE ASSESSMENT ORDER, WE NOTICE THAT THE ASSESSEE HAS SIMPLY STATED THAT THEY HAVE VERIFIED THE BOOKS OF ACCOUNTS AND RECORDS AND NO SUCH PAYMENTS HAVE BEEN MADE OR AUTHORISED BY THE COMPANY. THUS, IT IS SEEN THAT THE ASSESSEE DID NO T EXPLAIN THE ENTRIES FOUND IN THE INCRIMINATING DOCUMENTS EXCEPT STATING THAT THEY HA VE NOT MADE SUCH PAYMENTS. IN THIS KIND OF SITUATION THE PRESUMPTION PROVIDED U/S 132(4A) COMES INTO OPERATION AND WE NOTICE THAT THE ASSESSEE HAS FAILED TO REBUT THE PRESUMPTION. THE LD COUNSEL FOR THE ASSESSEE ARGUED THAT THERE IS NO EVIDENCE TO SH OW THAT THE AMOUNTS MENTIONED IN THE SEIZED MATERIALS REPRESENT THE AMOUNT IN LAKHS . IT IS STATED THAT THE AMOUNTS WERE MENTIONED AS UNDER IN THE SEIZED MATERIALS. I.T.(SS)A. NOS. 210 /COCH/2005, 28/COCH/2007, 57/COCH/2008& 01/COCH/2009 7 G.M. 1.00 MANAGERS (12 BILLS) 1.90 A/C SECTION (12 BILLS) 0.30 THE AO PRESUMED THAT THE AMOUNT MENTIONED ABOVE REP RESENT AMOUNT IN LAKHS OF RUPEES. ACCORDINGLY, THE AO HAS TAKEN 1.00 AS ONE LAKH RUPEES. CONSIDERING THE QUANTUM OF WORK UNDERTAKEN BY THE COMPANY AND THE P OSITION OF THE OFFICIALS MENTIONED ABOVE, IN OUR VIEW, IT WOULD BE REASONABL E TO PRESUME THAT THE AMOUNTS NOTED IN THE SEIZED MATERIALS REPRESENT AMOUNTS IN LAKHS. THE ASSESSEE, HAVING FAILED TO REBUT THE PRESUMPTION, IN OUR VIEW, THE A O WAS JUSTIFIED IN MAKING THE ADDITION OF RS.30,25,850/-. ACCORDINGLY, WE SET ASIDE THE O RDER OF LD CIT(A) ON THIS ISSUE AND RESTORE THE ADDITION MADE BY LD CIT(A). 10. WE SHALL NOW TAKE UP THE APPEAL FILED BY TH E ASSESSEE WHICH IS NUMBERED AS IT(SS)A 57/C/2008. THIS APPEAL IS PREFERRED AGAINS T THE ORDER DATED 24.10.2008 PASSED BY LD CIT(A)-II, KOCHI AGAINST THE ASSESSMEN T ORDER PASSED U/S 143(3) R.W.S. 263 OF THE ACT. THE ASSESSEE IS ASSAILING THE DECI SION OF LD CIT(A) IN CONFIRMING THE FOLLOWING ADDITIONS MADE BY THE AO. (A) ILLEGAL PAYMENTS MADE TO THE OFFICIALS OF NHA I - RS.57.50 LAKHS. (B) PAYMENTS NOT ACCOUNTED IN THE BOOKS - RS.1 2.50 LAKHS 11. THE FIRST ISSUE RELATES TO THE ILLEGAL PAYM ENTS MADE TO THE OFFICIALS OF NHAI AMOUNTING TO RS.57.50 LAKHS. WE HAVE DISCUSSED IDENTICAL ISSUE IN PARA 9 SUPRA. FOR THE REASONS STATED IN THAT PARAGRAPH, WE DO NOT FIN D ANY INFIRMITY IN THE DECISION OF LD CIT(A) IN CONFIRMING THE ADDITION OF RS.57.50 LAKHS . 12. THE NEXT ISSUE RELATES TO THE ADDITION OF R S.12.50 LAKHS. THE AO MADE AN ADDITION OF RS.40.50 LAKHS AS THE VOUCHERS PERTAINI NG THERETO WERE NOT FOUND ACCOUNTED IN THE BOOKS OF ACCOUNTS OF THE ASSESSEE. THE ASSE SSEE CONTENDED BEFORE LD CIT(A) THAT THE VOUCHERS PERTAINING TO RS.40.50 LAKHS ACTU ALLY BELONG TO A JOINT VENTURE CONCERN NAMED M/S PATI-BEL JV. THE LD CIT(A) REFE RRED THE MATTER TO THE AO, WHO CONFIRMED THAT A SUM OF RS.12.50 LAKHS WAS NOT REFL ECTED IN THE BOOKS OF JOINT VENTURE I.T.(SS)A. NOS. 210 /COCH/2005, 28/COCH/2007, 57/COCH/2008& 01/COCH/2009 8 CONCERN REFERRED ABOVE. ACCORDINGLY, THE AO STATED THAT THE ADDITION OF ABOVE SAID SUM OF RS.12.50 LAKHS SHOULD BE SUSTAINED. IN THE RELE VANT VOUCHERS, IT WAS MENTIONED THAT THE SUM OF RS.12.50 LAKHS WAS PAID TO SHRI S.K.JAIN . BEFORE LD CIT(A), THE ASSESSEE FILED BANK STATEMENTS. ON VERIFICATION OF THE SAME , THE LD CIT(A) HAS GIVEN A CLEAR FINDING THAT THE TRANSACTIONS PERTAINING TO RS.12.5 0 LAKHS COULD NOT BE IDENTIFIED IN THE BANK STATEMENTS. LD CIT(A) HAS ALSO GIVEN A FINDIN G THAT THE AMOUNT OF RS.12.50 LAKHS WAS NOT ACCOUNTED IN THE BOOKS OF ACCOUNT OF JOINT VENTURE CONCERN. BEFORE US, THOUGH THE ASSESSEE REITERATED ITS CLAIM THAT THE TRANSACT IONS PERTAINING TO RS.12.50 LAKHS BELONG TO THE JOINT VENTURE CONCERN, YET NO MATERIA L WAS PRODUCED TO CONTRADICT THE FINDINGS GIVEN BY LD CIT(A). ACCORDINGLY, WE DO NO T FIND ANY REASON TO INTERFERE WITH THE DECISION REACHED BY LD CIT(A) ON THIS ISSUE. 13. IN THE RESULT, THE APPEAL OF THE REVENUE IN IT(SS)A 210/C/2005 IS ALLOWED AND THE APPEAL OF THE REVENUE IN IT(SS)A 01/C/2009 IS D ISMISSED. BOTH THE APPEALS OF THE ASSESSEE ARE DISMISSED. PRONOUNCED ACCORDINGLY ON 08-06-2012 SD/- SD/- (N.R.S.GANESAN) (B.R.BASKARAN) JUDICIAL MEMBER ACCOUNTANT MEMBER PLACE: KOCHI DATED: 8TH JUNE, 2012 GJ COPY TO: 1. BHAGEERATHA RESIDENCY, BANERJI ROAD, COCHIN-682 0 18. 2.THE ASSISTANT COMMISSIONER OF INCOME-TAX, CIRCLE- 1(1), ERNAKULAM. 3. THE DEPUTY COMMISSIONER OF INCOME-TAX, CIRCLE-I( 1), ERNAKULAM. 4 THE COMMISSIONER OF INCOME-TAX (APPEALS)-II, KOCH I. 5 THE COMMISSIONER OF INCOME-TAX, KOCHI. 6 D.R., I.T.A.T., COCHIN BENCH, COCHIN. 7 GUARD FILE. BY ORDER (ASSISTANT REGISTRAR) ITAT, COCHIN I.T.(SS)A. NOS. 210 /COCH/2005, 28/COCH/2007, 57/COCH/2008& 01/COCH/2009 9