Om Shree Agro Industries Pvt Ltd, Dhule V. Assistant Commissioner of Income tax, Nashik

ITSSA 18/PUN/2017

• Counselvise Citation: [2021] 104 COUNSELVISE.COM (IT) 6758 (ITAT-PUNE)
• Duration Of Justice: 4 year(s) 10 month(s) 1 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 07-12-2021
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: B
• Assessment Year: 2014-2015
• Appeal Filed On: 05-02-2017
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Keywords: Search and seizure; Deemed to accrue or arise in india

Judgement Text

आयकर अपीलीय अधधकरण “बी” न्यायपीठ पुणे में । IN THE INCOME TAX APPELLATE TRIBUNAL “B” BENCH, PUNE BEFORE SHRI INTURI RAMA RAO, ACCOUNTANT MEMBER AND SHRI S.S. VISWANETHRA RAVI, JUDICIAL MEMBER आयकर अपील सं. / IT(SS) A No. 18/PUN/2017 धनधाारण वषा / Assessment Year : 2014-15 Om Shree Agro Industries Pvt. Ltd. G-117, MIDC Street-K, Dhule-424 002. PAN : AAACO4104A .......अपीलाथी / Appellant बनाम / V/s. The Assistant Commissioner of Income Tax, Central Circle-2, Nashik. ......प्रत्यथी / Respondent Assessee by : Shri Sunil Ganoo Revenue by : Shri S.P Walimbe सुनवाई की तारीख / Date of Hearing : 08.12.2021 घोषणा की तारीख / Date of Pronouncement : 08.12.2021 आदेश / ORDER PER INTURI RAMA RAO, AM : This appeal filed by the assessee is directed against the order of the Ld. CIT(Appeals)-12, Pune dated 10.11.2016 for the assessment year 2014-15. 2. The assessee has raised grounds of appeal in appeal memo as well as additional grounds which read as under: “Grounds of appeal :- 1) In the facts, circumstances and position of law, learned Commissioner of Income Tax, Appeals-12, Pune erred in confirming 2 IT(SS)A No. 18/PUN/2017 A.Y.2014-15 the addition of Rs.59,54,000/- on account of excess stock found as undisclosed income. 2) Without prejudice to Ground No.1, learned CIT(A)-12, Pune erred in confirming the addition of Rs.59,54,000/- on account of excess stock found as representing deemed income u/s.69 & to be taxed u/s.115BBE of the Act, when it is not the case of Assessing Officer which is apparent from the computation of income and tax forming part of assessment order. 3) In the facts, circumstances and position of law, learned CIT(A)-12, Pune erred in confirming the addition of Rs.59,54,000/- as undisclosed income u/s.69 of IT Act, 1961 by relying upon decision of Hon’ble Gujarat High Court in the case of Fakir Mohmed Hazi Hasan (247 ITR 290) when the same is distinguishable on facts. 4) Without prejudice to Ground Nos. 1 to 3, learned CIT(A)-12, Pune erred in not deciding the issue in favour of assessee when there are conflicting decisions of different High Courts and there is no decision of jurisdictional Bombay High Court. 5) Appellant craves leave to add, alter, amend or substitute to the above grounds of appeal at the time of hearing.” Proposed Additional Ground of Appeal No.1 sought to be raised : Without prejudice to original grounds of appeal and by way of an alternate submission the appellant submits that the learned CIT(A) ought to have allowed the business loss of the appellant for the year under consideration to be set off against the additions of Rs.59,54,000/- made on account of alleged excess stock and Rs.6,99,252/- on account of alleged excess cash found during search and seizure action. It may please be held that the provisions of Section 115BBE are inapplicable for the AY 2014-15 and all consequential reliefs in the matter may please be granted.” 3. The brief facts in this case are as under: The assessee company is incorporated under the provision of Companies Act, 1956. It is engaged in the business of manufacturing and trading of edible and non-edible oil. There were search and seizure operation conducted in the premises of assessee u/s.132 of the Income Tax Act, 1961 (hereinafter referred to as „the Act‟). The return of income of the assessee for the assessment year 2014-15 was filed on 26.11.2014 declaring total income at Rs.35,15,227/- and against the said return of income, assessment was completed by the Assessing Officer at total income of Rs.1,07,77,901/-. While 3 IT(SS)A No. 18/PUN/2017 A.Y.2014-15 doing so, the Assessing Officer made additions on account of excess stock found at the time of search of Rs.59,54,000/- and excess cash found of Rs.13,08,674/-. 4. Being aggrieved by the above additions, an appeal was preferred before the Ld. CIT(Appeals) who vide impugned order upheld the addition on account of undisclosed excess stock as deemed income u/s.69 of the Act and also directed the Assessing Officer to bring the same to tax u/s.115BBE of the Act. As regards the excess cash found during search proceedings of Rs.13,08,674/-, the Ld. CIT(Appeals) remanded the matter back to the file of Assessing Officer to the extent of Rs.6,99,252/- with the direction to find out whether the same is reflected in the books of account maintained and found at the time of search proceedings and the balance of Rs.6,09,395/- was confirmed by the Ld. CIT(Appeals) with direction to assess the same u/s.69 of the Act. 5. Being aggrieved, the assessee before us has filed the present appeal. 6. At the time of hearing, the Ld. Counsel for the assessee submitted that he is not pressing the original grounds of appeal in the appeal memo and he only pressed and argued the additional ground of appeal. Accordingly, original grounds of appeal listed at Ground Nos. 1 to 4 stands dismissed as not pressed. 6.1 The Ld. Counsel further submitted that while passing the consequential order of Ld. CIT(Appeals), the Assessing Officer had not given the benefit of set off loss against the income assessed under the head „income from other sources‟ u/s.115BBE of the Act. He also submitted that amendment of 4 IT(SS)A No. 18/PUN/2017 A.Y.2014-15 provision to Section 115BBE of the Act comes into effect or effective from 01.04.2017 as clarified vide CBDT Circular No.11 of 2019 dated 19.06.2019. 7. On the other hand, the Ld. CIT-DR relied on the orders of the Lower Authorities. 8. We have heard the rival submissions and perused the materials available on record. The issue raised in the additional ground of appeal does not emanate from the order of the Ld. CIT(Appeals) and on careful reading of the order of the Ld. CIT(Appeals), it would be clear that the Ld. CIT(Appeals) had only directed the Assessing Officer to assess the unaccounted /undisclosed stock, excess cash found at the time of search proceedings u/s.115BBE of the Act. The Ld. CIT(Appeals) had no occasion to deal with the issue of set off business loss against income assessed under the head „income from other sources‟. Therefore, while passing consequential order to order of the Ld. CIT(Appeals), if the Assessing Officer had travelled beyond the order of the Ld. CIT(Appeals) or nor passed the order in accordance with law, different remedy is available to the assessee i.e. a separate appeal lies against the consequential order before the Ld. CIT(Appeals) and no appeal lies before this Tribunal. Hence, additional ground raised in appeal by the assessee is dismissed. 9. In the result, appeal of the assessee is dismissed. Order pronounced on 08 th day of December, 2021. Sd/- Sd/- S.S. VISWANETHRA RAVI INTURI RAMA RAO JUDICIAL MEMBER ACCOUNTANT MEMBER पुणे / Pune; ददनांक / Dated : 08 th December, 2021 SB 5 IT(SS)A No. 18/PUN/2017 A.Y.2014-15 आदेश की प्रधतधलधप अग्रेधषत / Copy of the Order forwarded to : 1. अपीलाथी / The Appellant. 2. प्रत्यथी / The Respondent. 3. The CIT (Appeals)-12, Pune. 4. The Pr. CIT, Central, Nagpur. 5. धवभागीय प्रधतधनधध, आयकर अपीलीय अधधकरण, “बी” बेंच, पुणे / DR, ITAT, “B” Bench, Pune. 6. गार्ा फ़ाइल / Guard File. आदेशानुसार / BY ORDER, // True Copy // धनजी सधचव / Private Secretary आयकर अपीलीय अधधकरण, पुणे / ITAT, Pune. 6 IT(SS)A No. 18/PUN/2017 A.Y.2014-15 Date 1 Draft dictated on 23.11.2021 Sr.PS/PS 2 Draft placed before author 08.12.2021 Sr.PS/PS 3 Draft proposed and placed before the second Member JM/AM 4 Draft discussed/approved by second Member AM/JM 5 Approved draft comes to the Sr. PS/PS Sr.PS/PS 6 Kept for pronouncement on Sr.PS/PS 7 Date of uploading of order Sr.PS/PS 8 File sent to Bench Clerk Sr.PS/PS 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