M/s. Shree Venkatesh Agro Food Pvt. Ltd., Kolkata V. DCIT, Central Circle - V, Kolkata, Kolkata

ITSSA 54/KOL/2011

• Counselvise Citation: [2014] 122 COUNSELVISE.COM (IT) 0449 (ITAT-KOLKATA)
• Duration Of Justice: 3 year(s) 6 month(s) 4 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 17-10-2014
• Appeal Filed By: Assessee
• Bench Allotted: A
• Assessment Year: 2006-2007
• Appeal Filed On: 13-04-2011
• Court: TRIBUNAL
• Department Lawyers: DR SWETABH SUMAN
• Assessee Lawyers: S K TULSIYAN
• Keywords: Gift; Revision of order; Business expenditure; Search and seizure; Question of law; Deemed dividend; Revised return; Reassessment proceedings
• Section: 143(3); 153A; 139(5); 132; 139

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL KOLKATA BENCH A KOLKATA BEFORE SHRI MAHAVIR SINGH, JUDICIAL MEMBER AND SHRI SHAMIM YAHYA, ACCOUNTANT MEMBER IT(SS)A NO.54-56/KOL/2011 ASSESSMENT YEARS: 2006-07 TO 2008-09 M/S SHREE VENKATESH AGRO FOOD PVT. LTD., 174, C.R. AVENUE, KOLKATA 700 007 [ PAN NO.AAICS 6811 N ] / V/S . DY. COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE-V KOLKATA /APPELLANT .. /RESPONDENT IT(SS)A NO.66-69/KOL/2011 ASSESSMENT YEARS: 2002-03 TO 2005-06 DCIT, CENTRAL CIRCLE-V, 5 TH FLOOR, PODDAR COURT, 18, RABINDRA SARANI, KOLKATA 700 001 / V/S . SHREE VENKATTESH AGRO FOODS PVT. LTD., 174, C.R. AVENUE, KOLKAA 700 007 /APPELLANT .. /RESPONDENT /BY ASSESSEE SHRI S.K.TULSIYAN, ADVOCATE /BY REVENUE DR. SWETABH SUMAN, CIT-DR /DATE OF HEARING 27-08-2014 ! /DATE OF PRONOUNCEMENT 17-10-2014 ' ' ' ' /O R D E R PER BENCH:- OUT OF THESE SEVEN APPEALS THREE BY ASSESSEE AND FOUR BY REVENUE ARE ARISING OUT OF THE ORDER OF COMMISSIONER OF INCOME TAX (APP EALS), CENTRAL-I, KOLKATA IN APPEALS NO.369-375/CIT(A),C-I/CC-V/09-10 BY DIFFERE NT DATES 17-01-2011 AND 18- 01-2011. ASSESSMENT(S) WERE FRAMED BY DCIT, CC-V, K OLKATA U/S. 143(3), 153B(B), IT(SS)A NO.54-56 & 66-69/KOL/2011 A.YS.06-07 TO 08- 09 AND 02-03 TO 05-06 SHREE VENKATESH AGRO FOOD PVT. LTD. V. DCIT, CC-V , KOL P AGE 2 153A, 153D OF THE INCOME TAX ACT, 1961 (HEREINAFTER REFERRED TO AS THE ACT) VIDE HIS ORDERS DATES 31-12-2009 FOR ASSESSMENT YEARS 20 02-03 TO 2008-09 RESPECTIVELY. FIRST WE TAKE UP ASSESSEES APPEALS IN IT(SS)A NO.5 4-56/KOL/2011. 2. THE FIRST ISSUE IN IT(SS)A NO.54/KOL/2011 OF THE ASSESSEE IS AGAINST THE ORDER OF CIT(A) CONFIRMING AD HOC DISALLOWANCE @ 5% MADE BY THE ASSESSING OFFICER ON ACCOUNT OF VARIOUS GENERAL EXPENSES. FOR THIS, ASS ESSEE HAS RAISED FOLLOWING GROUND NO.2:- 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE, THE LEARNED CIT(A) ERRED IN UPHOLDING THE DISALLOWANCE OF RS.8,63,229/- MADE AT THE AD-HOC RATE OF 5% OF THE TOTAL EXPENSES CLAIMED UNDER DIFFERENT HEADS NEGLEC TING TO TAKE INTO CONSIDERATION THE FACT THAT THE ACCOUNTS OF THE APPELLANT COMPANY ARE FULLY AUDITED. 3. BRIEFLY STATED FACTS ARE THAT A SEARCH U/S 132 O F THE ACT WAS CONDUCTED ON THE BUSINESS AND RESIDENTIAL PREMISES OF THE ASSESSEE A ND ITS DIRECTOR ON 04-10-2007. DURING THE COURSE OF ASSESSMENT PROCEEDINGS, THE AO MADE DISALLOWANCE OF EXPENSES @5% OF THE FOLLOWING EXPENSES:- EXPENDITURE AMOUNT OF DISALLOWANCE 1) GENERATOR EXPENSES 1,36,89,672/- 6,83,483/- 2) LOADING UNLOADING CHARGES 15,54,514/- 77,725/ - 3) REPAIR & MAINTENANCE 8,19,090/- 40,954/- 4) LABORATORY EXPENSES 1,44,613/- 7,230/- 5) PACKING EXPENSES 10,18,878/- 50,943/- 6) TRAVELLING & CONVEYANCE 57,877/- 2,8 94/- 8,63,229/- THE AO NOTED THAT THE ASSESSEE FAILED TO FILE DETAI LS AND HENCE, HE ESTIMATED THE DISALLOWANCE @ 5% OF THE ABOVE DISALLOWANCE. AGGRIE VED, ASSESSEE PREFERRED APPEAL BEFORE CIT(A), WHO CONFIRMED ON SAME REASONING. 4. WE HAVE HEARD RIVAL CONTENTIONS AND GONE THROUGH THE FACTS AND CIRCUMSTANCES OF THE CASE. WE FIND THAT AO HAS MADE DISALLOWANCE ON AD HOC BASIS @ 5% AND THERE IS NO BASIS FOR MAKING DISALLOWANCE. WE ALSO OBSERV E THAT CIT(A) HAS SIMPLY IT(SS)A NO.54-56 & 66-69/KOL/2011 A.YS.06-07 TO 08- 09 AND 02-03 TO 05-06 SHREE VENKATESH AGRO FOOD PVT. LTD. V. DCIT, CC-V , KOL P AGE 3 CONFIRMED THE DISALLOWANCE. WHETHER THE DISALLOWAN CE BY RESTRICTING @ 5% ON ACCOUNT OF BUSINESS EXPENDITURE CAN BE MADE OR NOT IN THE ABSENCE OF ANY REASONING? THE DISALLOWANCE PURELY BY RESORTING TO AD HOC METH OD CANNOT BE MADE. THESE ARE BUSINESS EXPENDITURE, AND IN THE ABSENCE OF COGENT REASON, THE DISALLOWANCE SHOULD NOT HAVE BEEN MADE. WE HOLD THAT DISALLOWANCE MADE BY AO IS WITHOUT ANY BASIS AND HENCE DESERVES TO BE DELETED. ACCORDINGLY, WE DELET E THE DISALLOWANCE. THIS ISSUE OF ASSESSEES APPEAL IS ALLOWED. 5. THE NEXT COMMON ISSUE IN THESE THREE APPEALS OF ASSESSEE IN IT(SS)A NO. 54- 56/KOL/2011 IS AS REGARDS TO THE ORDER OF CIT(A) CO NFIRMING THE DISALLOWANCE OF EMPLOYEES CONTRIBUTION TO ESI & P.F. FOR THIS, ASS ESSEE HAS RAISED IDENTICAL WORDED GROUNDS EXCEPT THE AMOUNT. THE RELEVANT GROUND AS R AISED IN IT(SS)A NO.54/KOL/2011 FOR AY 2006-07 READS AS UNDER:- 3. ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LEARNED CIT(A) ERRED IN UPHOLDING THE DISALLOWANCE OF RS.9,330/- IN RESPECT OF THE EMPLOYEES CONTRIBUTIONS TO E.S.I. & P.F. 6. WE HAVE HEARD RIVAL CONTENTIONS AND GONE THOUGH THE FACTS AND CIRCUMSTANCES OF THE CASE. WE FIND THAT IN ALL THE THREE AYS, THE DATES ARE NOTED BY THE AO AND THE PAYMENTS ARE MADE WITHIN THE DUE DATE OF FILING OF RETURN OF INCOME U/S.139(1) OF THE ACT AS IS EVIDENT FROM THE ASSESSMENT ORDER. NOW, T HIS ISSUE STANDS COVERED IN FAVOUR OF ASSESSEE AND AGAINST THE REVENUE BY THE DECISION OF HONBLE JURISDICTIONAL HIGH COURT IN THE CASE OF CIT V. M/S VIJAY SHREE LIMITED VIDE ITAT NO.245 OF 2011 IN GA NO.2607 OF 2011 DATED 7 TH SEPTEMBER, 2011, WHEREIN IT HAS BEEN HELD AS UNDER :- AFTER HEARING MR. SINHA, LEARNED ADVOCATE, APPEARI NG ON BEHALF OF THE APPELLANT AND AFTER GOING THROUGH THE DECISION OF THE SUPREME COURT IN THE CASE OF COMMISSIONER OF INCOME TAX VS. ALOM EXTRUSION LTD. , WE FIND THAT THE SUPREME COURT IN THE AFORESAID CASE HAS HELD THAT THE AMEND MENT TO THE SECOND PROVISO TO THE SEC. 43(B) OF THE INCOME TAX ACT, AS INTRODUCED BY FINANCE ACT, 2003, WAS CURATIVE IN NATURE AND IS REQUIRED TO BE APPLIED RETROSPECTI VELY WITH EFFECT FROM 1 ST APRIL, 1988. SUCH BEING THE POSITION, THE DELETION OF THE AMOUNT PAID BY THE EMPLOYEES CONTRIBUTION BEYOND DUE DATE WAS DEDUCTIBLE BY INVO KING THE AFORESAID AMENDED PROVISIONS OF SECTION 43(B) OF THE ACT. WE, THEREFORE, FIND THAT NO SUBSTANTIAL QUESTION OF LAW IS INVOLVED IN THIS APPEAL AND CONSEQUENTLY, WE DISMISS THIS APPEAL. IT(SS)A NO.54-56 & 66-69/KOL/2011 A.YS.06-07 TO 08- 09 AND 02-03 TO 05-06 SHREE VENKATESH AGRO FOOD PVT. LTD. V. DCIT, CC-V , KOL P AGE 4 ONCE THIS POSITION, THE ISSUE IS SQUARELY COVERED I N FAVOUR OF ASSESSEE BY THE JURISDICTIONAL HIGH COURT IN THE CASE OF M/S VIJAY SHREE LIMITED (SUPRA). AS THE ISSUE IS COVERED, WE ALLOW THIS COMMON ISSUE IN THESE THR EE APPEALS OF ASSESSEE. COMING TO REVENUES APPEALS IN IT(SS)A NO.66-69/KOL /2011 (AYS 02-03 TO 05-06) 7. THE FIRST COMMON ISSUE IN IT(SS)A NO. 66 AND 67/ KOL/2011 IS AGAINST THE ORDER OF CIT(A) DELETING THE ADDITION MADE BY ASSES SING OFFICER ON ACCOUNT OF DEEMED DIVIDEND. FOR THIS, REVENUE HAS RAISED FOLLO WING GROUND NOS. 3 AND 4 IN IT(SS)A 66/KOL/2011 AND GROUND NO. 3 IN IT(SS)A NO. 67/KOL/2011:- IT(SS)A NO.66/KOL/2011 3) THAT THE LD. CIT(A), CENTRAL-I, KOLKATA IS ERRE D IN DELETING THE ADDITION ON ACCOUNT OF DEEMED DIVIDEND OF RS.8,44,353/- RELYIN G ON THE CASE LAW OF M/S. LMJ INTERNATIONAL 119 TTJ(KOL) 214. 4) THAT THE LD. CIT(A), CENTRAL-I, KOLKATA IS ERRED IN DELETING THE ADDITION ON ACCOUNT OF DEEMED DIVIDEND OF RS.16,48,980/- RELYI NG ON THE CASE LAW OF M/S LMJ INTERNATIONAL 119 TTJ (KOL) 214. IT(SS)A NO.67/KOL/2011 3) THAT THE LD. CIT(A), CENTRAL-I, KOLKATA IS ERRE D IN DELETING THE ADDITION ON ACCOUNT OF DEEMED DIVIDEND OF RS.6,02,944/- RELYIN G ON THE CASE LAW OF M/S. LMJ INTERNATIONAL 119 TTJ (KOL) 214. 8. BRIEFLY STATED FACTS ARE THAT THERE WAS A SEARCH AND SEIZURE OPERATION CARRIED OUT ON THE BUSINESS AND RESIDENTIAL PREMISES OF THE ASSESSEE ON 04-10-2007 ALONG WITH THE MEMANI GROUP OF CASES. ACCORDINGLY, NOTICE U/S 153A OF THE ACT WAS ISSUED AND IN RESPONSE TO THE SAME, ASSESSEE FILED RETURN OF INCOME. THE AO WHILE FRAMING THE ASSESSMENT MADE ADDITION OF DEEM DIVIDEND OF RS .16,48,950/- AND RS.8,44,353/- IN AY 2002-03 AND RS.6,02,944/- IN AY 2003-04. THE CONTENTION OF THE ASSESSEE WAS THAT THIS HAS ALREADY BEEN CONSIDERED IN THE ORIGIN AL ASSESSMENT FRAMED U/S 143(3) OF THE ACT AND NO NEW FACTS CAME TO THE KNOWLEDGE OF T HE REVENUE OR ANY INCRIMINATING MATERIAL WAS FOUND DURING THE COURSE OF SEARCH WHIC H SUGGESTS THAT ASSESSEE HAS NOT DISCLOSED THE INCOME. THE CIT(A) DELETED THE ADDITI ON BY HOLDING THAT SINCE THERE IS NO INCRIMINATING MATERIALS WERE FOUND DURING THE CO URSE OF SEARCH, THE ADDITION IT(SS)A NO.54-56 & 66-69/KOL/2011 A.YS.06-07 TO 08- 09 AND 02-03 TO 05-06 SHREE VENKATESH AGRO FOOD PVT. LTD. V. DCIT, CC-V , KOL P AGE 5 CANNOT BE SUBJECT-MATTER UNDER THE PROCEEDINGS INIT IATED U/S. 153A OF THE ACT. THE CIT(A) IN PARA-3.2 HAS OBSERVED AS UNDER:- 3.2 I HAVE CAREFULLY CONSIDERED THE SUBMISSION OF THE A.R. IN THE ASSESSEES CASE, AS ON THE DATE OF SEARCH, ASSESSMENT FOR THE YEAR UNDE R CONSIDERATION HAD ALREADY BEEN COMPLETED. AT THE TIME OF ORIGINAL ASSESSMENT, THE INCOME DECLARED HAD BEEN ACCEPTED BY THE AO. IN COURSE OF THE SEARCH ACTION IN THE GROUP CASE, NOTHING INCRIMINATING IN RESPECT OF SUCH ADDITION / DISALLO WANCE WERE FOUND. SINCE THE ABOVE CLAIMS HAD BEEN ACCEPTED IN COURSE OF NORMAL ASSESS MENTS, AND SINCE THERE IS NO CHANGE IN THE FACTS AND CIRCUMSTANCES COMPARED TO T HE PAST, THE AO WAS NOT JUSTIFIED IN REVIEWING THE COMPLETED ASSESSMENT OF THE SAID Y EAR MERELY BECAUSE A SEARCH ACTION HAS BEEN CARRIED OUT IN THE PREMISES OF COMP ANY. S. 153A DOES NOT AUTHORIZE THE MAKING OF A DE NOVO ASSESSMENT. WHILE UNDER THE 1 ST PROVISO, THE AO IS EMPOWERED TO FRAME ASSESSMENT FOR SIX YEARS, UNDER THE 2 ND PROVISO, ONLY THE ASSESSMENTS WHICH ARE PENDING ON THE DATE OF INITIA TION OF SEARCH ABATE. THE EFFECT IS THAT COMPLETED ASSESSMENTS DO NOT ABATE. SINCE,, AD DITION ON ACCOUNT OF DEEMED DIVIDEND DOESNT EMANATE FROM INCRIMINATING MATERIA L FOUND DURING THE COURSE OF SEARCH, HENCE THE SAME CANNOT BE THE SUBJECT MATTER OF CONSIDERATION UNDER THE PROCEEDING UNDER SECTION 153A. HENCE I MUST FOLLOW THE DECISION OF LMJ INTERNATIONAL VS DCIT (2008) 119 TTJ (KOL) 214 TO MAINTAIN THE JUDICIAL DISCIPLINE, WHERE IT HAS BEEN HELD THAT WHERE NOTHING INCRIMINA TING IS FOUND IN THE COURSE OF SEARCH PROCEEDING RELATING TO ANY ASSESSMENT YEARS, THE COMPLETED ASSESSMENT FOR SUCH YEARS CANNOT BE DISTURBED ACCORDINGLY THE DISA LLOWANCE OF RS.4575/- AND ADDITION OF RS.24,93,333/- (RS.16,48,950/- + RS.8,4 4,353) ON ACCOUNT OF DEEMED DIVIDEND MADE BY THE A.O IS DELETED. ACCORDINGLY TH E GROUND NO 2 TO 5 TAKEN BY THE APPELLANT IS ALLOWED. WE FIND THAT THIS ISSUE IS NOW SQUARELY COVERED IN FAVOUR OF ASSESSEE AND AGAINST REVENUE BY THE DECISION OF HONBLE RAJASTHAN HIGH C OURT IN THE CASE OF JAI STEEL (INDIA) VS. ACIT REPORTED IN (2013) 88 DTR (RAJ) 1, WHEREIN IT IS HELD AS UNDER:- THE PROVISIONS OF SECTIONS 153A TO 153C CANNOT BE INTERPRETED TO BE A FURTHER INNINGS FOR THE AO AND/OR ASSESSEE BEYOND PROVISION S OF SECTIONS 139 (RETURN OF INCOME), 139(5) (REVISED RETURN OF INCOME), 147 (IN COME ESCAPING ASSESSMENT) AND 263 (REVISION OF ORDERS) OF THE ACT. THE PLEA RAISED ON BEHALF OF THE ASSESSEE THAT AS T HE FIRST PROVISO PROVIDES FOR ASSESSMENT OR REASSESSMENT OF THE TOTAL INCOME IN R ESPECT OF EACH ASSESSMENT YEAR FALLING WITHIN THE SIX ASSESSMENT YEARS, IS ME RELY READING THE SAID PROVISION IN ISOLATION AND NOT IN THE CONTEXT OF TH E ENTIRE SECTION. THE WORDS 'ASSESS' OR 'REASSESS' HAVE BEEN USED AT MORE THAN ONE PLACE IN THE SECTION AND A HARMONIOUS CONSTRUCTION OF THE ENTIRE PROVISION WOU LD LEAD TO AN IRRESISTIBLE CONCLUSION THAT THE WORD 'ASSESS' HAS BEEN USED IN THE CONTEXT OF AN ABATED PROCEEDINGS AND REASSESS HAS BEEN USED FOR COMPLETE D ASSESSMENT PROCEEDINGS, WHICH WOULD NOT ABATE AS THEY ARE NOT PENDING ON TH E DATE OF INITIATION OF THE SEARCH OR MAKING OF REQUISITION AND WHICH WOULD ALS O NECESSARILY SUPPORT THE INTERPRETATION THAT FOR THE COMPLETED ASSESSMENTS, THE SAME CAN BE TINKERED ONLY IT(SS)A NO.54-56 & 66-69/KOL/2011 A.YS.06-07 TO 08- 09 AND 02-03 TO 05-06 SHREE VENKATESH AGRO FOOD PVT. LTD. V. DCIT, CC-V , KOL P AGE 6 BASED ON THE INCRIMINATING MATERIAL FOUND DURING TH E COURSE OF SEARCH OR REQUISITION OF DOCUMENTS. THE ALLAHABAD HIGH COURT IN COMMISSIONER OF INCOME- TAX (CENTRAL, KANPUR V. SMT. SHAILA AGARWAL (SUPRA) HAS HELD AS UNDER:- 19. THE SECOND PROVISO TO SECTION 153A OF THE ACT, REFERS TO ABATEMENT OF THE PENDING ASSESSMENT OR REASSESSMENT PROCEEDINGS. THE WORD 'PENDING' DOES NOT OPERATE ANY SUCH INTERPRETATION, THAT WHEREVER THE APPEAL AGAINST SUCH ASSESSMENT OR REASSESSMENT IS PENDING, THE SAME ALO NGWITH ASSESSMENT OR REASSESSMENT PROCEEDINGS IS LIABLE TO BE ABATED. TH E PRINCIPLES OF INTERPRETATION OF TAXING STATUTES DO NOT PERMIT THE COURT TO INTER PRET THE SECOND PROVISO TO SECTION 153A IN A MANNER THAT WHERE THE ASSESSMENT OR REASSESSMENT PROCEEDINGS ARE COMPLETE, AND THE MATTER IS PENDING IN APPEAL IN THE TRIBUNAL, THE ENTIRE PROCEEDINGS WILL ABATE. 20. THERE IS ANOTHER ASPECT TO THE MATTER, NAMELY T HAT THE ABATEMENT OF ANY PROCEEDINGS HAS SERIOUS CAUSES AND EFFECT IN AS MUC H AS THE ABATEMENT OF THE PROCEEDINGS, TAKES AWAY ALL THE CONSEQUENCES THAT A RISE THEREAFTER. IN THE PRESENT CASE AFTER DEDUCTING BOGUS GIFTS IN THE REG ULAR ASSESSMENT PROCEEDINGS, THE PROCEEDINGS FOR PENALTY WERE DRAWN UNDER SECTIO N 271 (1)(C) OF THE ACT. THE MATERIAL FOUND IN THE SEARCH MAY BE A GROUND FOR NO TICE AND ASSESSMENT UNDER SECTION 153A OF THE ACT BUT THAT WOULD NOT EFFACE O R TERMINATE ALL THE CONSEQUENCE, WHICH HAS ARISEN OUT OF THE REGULAR AS SESSMENT OR REASSESSMENT RESULTING INTO THE DEMAND OR PROCEEDINGS OF PENALTY . (EMPHASIS SUPPLIED) THE SAID JUDGMENT WHICH ESSENTIALLY DEALS WITH SECO ND PROVISO TO SECTION 153A OF THE ACT ALSO SUPPORTS THE CONCLUSION, WHICH WE H AVE REACHED HEREINBEFORE. IT HAS BEEN OBSERVED BY THE HON'BLE SUPREME COURT IN K.P. VARGHESE V. INCOME TAX OFFICER : (1981) 131 ITR 597 THAT IT IS WELL R ECOGNIZED RULE OF CONSTRUCTION THAT A STATUTORY PROVISION MUST BE SO CONSTRUED, IF POSSIBLE THAT ABSURDITY AND MISCHIEF MAY BE AVOIDED. THE ARGUMENT OF THE COUNSEL FOR THE APPELLANT IF TA KEN TO ITS LOGICAL END WOULD MEAN THAT EVEN IN CASES WHERE THE APPEAL ARISING OU T OF THE COMPLETED ASSESSMENT HAS BEEN DECIDED BY THE CIT(A), ITAT AND THE HIGH COURT, ON A NOTICE ISSUED UNDER SECTION 153A OF THE ACT, THE AO WOULD HAVE POWER TO UNDO WHAT HAS BEEN CONCLUDED UPTO THE HIGH COURT. ANY IN TERPRETATION WHICH LEADS TO SUCH CONCLUSION HAS TO BE REPELLED AND/OR AVOIDE D AS HELD BY THE HON'BLE SUPREME COURT IN THE CASE OF K.P. VARGHESE (SUPRA). CONSEQUENTLY, IT IS HELD THAT IT IS NOT OPEN FOR TH E ASSESSEE TO SEEK DEDUCTION OR CLAIM EXPENDITURE WHICH HAS NOT BEEN CLAIMED IN THE ORIGINAL ASSESSMENT, WHICH ASSESSMENT ALREADY STANDS COMPLETED, ONLY BECAUSE A ASSESSMENT UNDER SECTION 153A OF THE ACT IN PURSUANCE OF SEARCH OR REQUISITI ON IS REQUIRED TO BE MADE. IN VIEW OF THE ABOVE DISCUSSION, THE ANSWER TO THE SUBSTANTIAL QUESTION OF LAW (IV) ABOVE IS IN THE POSITIVE AND AGAINST THE APPEL LANT ASSESSEE, THE OTHER THREE IT(SS)A NO.54-56 & 66-69/KOL/2011 A.YS.06-07 TO 08- 09 AND 02-03 TO 05-06 SHREE VENKATESH AGRO FOOD PVT. LTD. V. DCIT, CC-V , KOL P AGE 7 QUESTIONS CONSEQUENTLY DO NOT ARISE, AND, AS SUCH, THE APPEAL FAILS AND IS, THEREFORE, DISMISSED. NO COSTS. REGISTRY IS DIRECTED TO PLACE A COPY OF THIS JUDGME NT ON RECORD IN EACH CONNECTED FILE. ADMITTEDLY, THERE IS NO SEIZED INCRIMINATING MATERI ALS FOUND DURING THE COURSE OF SEARCH IN THIS CASE, AND WITHOUT ANY EVIDENCE THE A O HAS MADE ADDITION OF DEEMED DIVIDEND. THE ISSUE IS SQUARELY COVERED IN FAVOUR O F ASSESSEE AND AGAINST THE REVENUE BY THE DECISION OF SPECIAL BENCH IN THE CASE OF ALL CARGO GLOBAL LOGISTICS LTD., V. DCIT (2012) 181 ITR (TRIB) 106 (MUM) (SB) AS WELL AS BY THE DECISION OF HONBLE RAJASTHAN HIGH COURT IN THE CASE OF JAI STEEL (INDI A) SUPRA. AS THE ISSUE IS COVERED IN FAVOUR OF ASSESSEE, WE CONFIRM THE ORDER OF CIT(A) DELETING THE ADDITION. THIS COMMON ISSUE OF REVENUES APPEALS IS DISMISSED. 9. THE NEXT COMMON ISSUE OF REVENUES APPEALS IN IT (SS)A NO.66-67/KOL/2011 IS AS REGARDS TO DELETING THE DISALLOWANCE OF LOSS INCURRED ON ACCOUNT OF EXPENSES OF RS.4,575/- FOR A.Y. 2002-03 AND RS.6,950/- FOR A.Y 2003-04. THESE COMMON ISSUES ARE EXACTLY COVERED BY THE FACTS AS DISCUSSED IN EA RLIER GROUND ABOVE. AS THE ISSUE IS EXACTLY IDENTICAL AND NO INCRIMINATING MATERIALS WE RE FOUND DURING THE COURSE OF SEARCH AS NOTED BY CIT(A), WE CONFIRM THE ORDER OF CIT(A) IN DELETING THE ADDITION. THIS COMMON ISSUE OF REVENUES APPEALS IS DISMISSED . 10. THE NEXT COMMON ISSUE IN IT(SS)A NO. 68 AND 69/ KOL/2011 IS AGAINST THE ORDER OF CIT(A) DELETING THE DISALLOWANCE OF EXPENS ES MADE BY ASSESSING OFFICER. FOR THIS, REVENUE HAS RAISED IN IT(SS)A 68/KOL/2011 GROUND NO. 3 & 4 AND IT(SS)A NO.69/KOL/2011 GROUNDS NO. 3, 4 & 5:- IT(SS)A NO.68/KOL/2011 (A.Y.04-05) 3) THAT THE LD. CIT(A), CENTRAL-I, KOLKATA IS ERRE D IN DELETING THE DISALLOWANCE OF EXPENSES OF RS.2,11,220/- RELYING ON THE CASE LAW O F M/S. LMJ INTERNATIONAL 11( TTJ (KOL) 214. 4) THAT THE LD. CIT(A), CENTRAL-I, KOLKATA IS ERRED IN DELETING DISALLOWANCE OF FEES PAID TO R.O. C OF RS.66,200/- RELYING ON THE CASE L AW OF M/S. LMJ INTERNATIONAL 119 TTJ (KOL) 214. IT(SS)A NO.54-56 & 66-69/KOL/2011 A.YS.06-07 TO 08- 09 AND 02-03 TO 05-06 SHREE VENKATESH AGRO FOOD PVT. LTD. V. DCIT, CC-V , KOL P AGE 8 IT(SS)A NO69/KOL/2011 (A.Y.05-06) 3) THAT THE LD. CIT(A), CENTRAL-I, KOLKATA IS ERRE D IN DELETING THE DISALLOWANCE OF EXPENSES OF RS.7,29,769/- RELYING ON THE CASE LAW O F M/S. LMJ INTERNATIONAL 119 TTJ (KOL) 214. 4) THAT THE LD. CIT(A), CENTRAL-I, KOLKATA IS ERRED IN DELETING THE DISALLOWANCE OF FEES PAID TO R.O.C OF RS.66,200/- RELYING ON THE CA SE LAW OF M/S LMJ INTERNATIONAL 119 TTJ (KOL) 214. 11. WE HAVE HEARD RIVAL SUBMISSIONS AND GONE THROUG H FACTS AND CIRCUMSTANCES OF THE CASE. BRIEFLY STATED FACTS ARE THAT THERE WAS A SEARCH AND SEIZURE OPERATION CARRIED OUT ON THE BUSINESS AND RESIDENTIAL PREMISES OF THE ASSESSEE ON 04-10-2007 ALONG WITH THE MEMANI GROUP OF CASES. ACCORDINGLY, NOTICE U/S 153A OF THE ACT WAS ISSUED AND IN RESPONSE TO THE SAME, ASSESSEE FILED RETURN OF INCOME. THE AO WHILE FRAMING THE ASSESSMENT MADE ADDITIONS OF ABOVE NOTED EXPENS ES. THE CONTENTION OF THE ASSESSEE WAS THAT THIS HAS ALREADY BEEN CONSIDERED IN THE ORIGINAL ASSESSMENT FRAMED U/S 143(3) OF THE ACT AND NO NEW FACTS CAME TO THE KNOWLEDGE OF THE REVENUE OR ANY INCRIMINATING MATERIAL WAS FOUND DURING THE COURSE OF SEARCH WHICH SUGGESTS THAT ASSESSEE HAS NOT DISCLOSED THE INCOME. THE CIT(A) D ELETED THE ADDITION BY HOLDING THAT SINCE THERE IS NO INCRIMINATING MATERIALS WERE FOUND DURING THE COURSE OF SEARCH, THE ADDITION CANNOT BE SUBJECT-MATTER UNDER THE PRO CEEDINGS INITIATED U/S. 153A OF THE ACT. AGGRIEVED, NOW REVENUE CAME IN APPEALS BEFORE TRIBUNAL ON THE ABOVE ISSUES. 12. ADMITTEDLY, THERE IS NO SEIZED INCRIMINATING MA TERIALS FOUND DURING THE COURSE OF SEARCH IN THIS CASE, AND WITHOUT ANY EVIDENCE TH E AO HAS MADE ADDITIONS OF THE ABOVE EXPENSES. THE ISSUE IS SQUARELY COVERED IN FA VOUR OF ASSESSEE AND AGAINST THE REVENUE BY THE DECISION OF SPECIAL BENCH IN THE CAS E OF ALL CARGO GLOBAL LOGISTICS LTD., V. DCIT (2012) 181 ITR (TRIB) 106 (MUM) (SB) AS WELL AS BY THE DECISION OF HONBLE RAJASTHAN HIGH COURT IN THE CASE OF JAI STE EL (INDIA) SUPRA. AS THE ISSUE IS COVERED IN FAVOUR OF ASSESSEE, WE CONFIRM THE ORDER OF CIT(A) DELETING THE ADDITION. THIS COMMON ISSUE OF REVENUES APPEALS IS DISMISSED . 13. THE NEXT ISSUE IN IT(SS)A NO. 69/KOL/2011 OF RE VENUES APPEAL IS AS REGARDS TO THE ORDER OF CIT(A) CONFIRMING THE DISALLOWANCE OF EMPLOYEES CONTRIBUTION TO IT(SS)A NO.54-56 & 66-69/KOL/2011 A.YS.06-07 TO 08- 09 AND 02-03 TO 05-06 SHREE VENKATESH AGRO FOOD PVT. LTD. V. DCIT, CC-V , KOL P AGE 9 ESI & P.F. THE RELEVANT GROUND AS RAISED IN IT(SS)A NO.69/KOL/2011 FOR AY 2005- 06 READS AS UNDER:- 5) THAT THE LD. CIT(A), CENTRAL-I, KOLKATA IS ERRED IN DELETING THE DISALLOWANCE OF LATE PAYMENT OF EMPLOYEES CONTRIBUTION TO P.F. RS. 2,438/- RELYING ON THE CASE LAW OF M/S. LMJ INTERNATIONAL 119 TTJ (KOL) 214. 14. AS WE HAVE ALREADY DELIBERATED THIS ISSUE IN FA VOUR OF THE ASSESSEE AND WHICH IS COVERED BY JURISDICTIONAL HIGH COURT DECISION IN THE CASE OF M/S VIJAY SHREE LIMITED , SUPRA, WE CONFIRM THE ORDER OF CIT(A). THIS ISSU E OF REVENUES APPEAL IS DISMISSED. 15. IN THE RESULT, ALL APPEALS OF ASSESSEE ARE ALLO WED AND THAT OF REVENUE ARE DISMISSED. ORDER PRONOUNCED IN OPEN COURT ON 17/10/2014 SD/- SD/- (SHAMIM YAHYA) (MAHAVIR SINGH) ACCOUNTANT MEMBER JUDICIAL MEMBER KOLKATA, *DKP #$% - 17/10/2014 ' ' ' ' &&' &&' &&' &&' (' (' (' (' / COPY OF ORDER FORWARDED TO:- 1. / ASSESSEE M/S SHREE VENKATESH AGRO FOOD PVT. LT D. 174, CR AVENUE KOLKATA-700 07 2. / REVENUE DCIT, C.C.V, KOLKATA 3. $$&) * / CONCERNED CIT 4. * - / CIT (A) 5. '+, &&&) , &)! / DR, ITAT, KOLKATA 6. ,-. /0 / GUARD FILE. BY ORD ER/ ' , 1/3 $ &)!,