M/s. Ganesh Wheat Products Pvt. Ltd., Kolkata V. DCIT, Central Circle - V, Kolkata, Kolkata

ITSSA 63/KOL/2011

• Counselvise Citation: [2014] 122 COUNSELVISE.COM (IT) 0448 (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: Unexplained cash credit; Gift; Revision of order; Search and seizure; Question of law; Non-deduction of tax; Deemed dividend; Revised return; Reassessment proceedings
• Section: 143(3); 153A; 139(5); 27; 6; 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 NOS.63 TO 65/KOL/2011 ASSESSMENT YEARS: 2006-07 TO 2008-09 M/S GANESH WHEAT PRODUCTS PVT. LTD., 174, C.R. AVENUE, KOLKATA 700 007 [ PAN NO.AABCG8539N ] / V/S . DY. COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE-V KOLKATA /APPELLANT .. /RESPONDENT IT(SS)A NOS.77 TO 80/KOL/2011 ASSESSMENT YEARS: 2002-03,2004-05, 2005-06 & 2008-09 DCIT, CENTRAL CIRCLE-V, 5 TH FLOOR, PODDAR COURT, 18, RABINDRA SARANI, KOLKATA 700 001 / V/S . GANESH WHEAT PRODUCTS PVT. LTD. /APPELLANT .. /RESPONDENT IT(SS)A NO.81/KOL/2011 ASSESSMENT YEAR: 2005-06 DCIT, CENTRAL CIRCLE-V, 5 TH FLOOR, PODDAR COURT, 18, RABINDRA SARANI, KOLKATA 700 001 / V/S . GANESH WHEAT PRODUCTS PVT. LTD. (AMALGAMATION GFM AGRO PRODUCTS PVT. LTD.) /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 IT(SS)A NO.63-65 & 77-81/KOL/2011 A.YS.06-07 TO 08- 09 AND 02-03, 04-05 05-06 & 08-09 SHREEGANESH WHEAT PRODUCTS PVT. LTD. V. DCIT, CC-V, KOL PAGE 2 ' ' ' ' /O R D E R PER BENCH:- ALL THESE THREE APPEALS BY ASSESSEE ARE ARISING OU T OF SEPARATE ORDERS OF COMMISSIONER OF INCOME TAX (APPEALS), CENTRAL-I, KO LKATA IN APPEALS NOS.383- 385/CIT(A),C-I/CC-V/09-10 BY DIFFERENT DATES I.E. 1 3-01-2011, 14.01.2011 AND 18-01- 2011. ALL THESE FIVE APPEALS BY REVENUE ARE ARISING OUT OF SEPARATE ORDERS OF COMMISSIONER OF INCOME TAX (APPEALS), CENTRAL-I, KO LKATA IN APPEALS NOS.380-382 & 385 &386/CIT(A),C-I/CC-V/09-10 BY DIFFERENT DATES I .E. 13-01-2011, 14.01.2011 AND 18-01-2011. ASSESSMENT(S) WERE FRAMED BY DCIT, CC-V , KOLKATA U/S. 143(3)/153A OF THE INCOME TAX ACT, 1961 (HEREINAFTER REFERRED TO A S THE ACT) VIDE HIS ORDERS DATES 31-12-2009 RESPECTIVELY. FIRST WE TAKE UP ASSESSEES APPEALS IN IT(SS)A NOS. 63-65/KOL/2011. 2. THE FIRST COMMON ISSUE IN THESE THREE APPEALS OF ASSESSEE IS AS REGARDS TO THE ORDER OF CIT(A) CONFIRMING THE DISALLOWANCE OF EMPL OYEES CONTRIBUTION TO ESI & P.F. FOR THIS, ASSESSEE HAS RAISED IDENTICAL WORDED GROU NDS EXCEPT THE AMOUNT. THE RELEVANT GROUND AS RAISED IN IT(SS)A NO.63/KOL/2011 FOR AY 2 006-07 READS AS UNDER:- ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LE ARNED CIT(A) ERRED IN UPHOLDING THE DISALLOWANCE OF RS.40,505/- IN RESPECT OF THE E MPLOYEES CONTRIBUTIONS TO E.S.I. & P.F. 3. 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 COU RT 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 AMENDMENT TO THE SECOND PROV ISO 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 RETROSPECTIVELY WITH EFFECT FROM 1 ST APRIL, 1988. IT(SS)A NO.63-65 & 77-81/KOL/2011 A.YS.06-07 TO 08- 09 AND 02-03, 04-05 05-06 & 08-09 SHREEGANESH WHEAT PRODUCTS PVT. LTD. V. DCIT, CC-V, KOL PAGE 3 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. 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 THREE APPEALS OF ASSESSEE. 4. THE NEXT COMMON ISSUE I.E. FOR INITIATING PENALT Y PROCEEDINGS U/S. 271AAA OF THE ACT VIDE GROUND NO. 3 FOR AY 2007-08 AND GROUND NO. 4 AY 2008-09 OF ASSESSEE IS AGAINST THE ORDER OF CIT(A) IN TREATING AN AMOUNT OF RS.2,04,89,911.41 (FOR AY 2007- 08) AND RS.94,09,546/- (FOR AY 08-09) AS UNDISCLOSE D SALE. FOR THIS ASSESSEE HAS RAISED IDENTICALLY WORDED GROUNDS, EXCEPT VARIANCE IN AMOUNT, AND FOR THE SAKE OF CONVENIENCE, WE REPRODUCE GROUND NO. 3 OF AY 2007-0 8 AS UNDER: 3. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE, THE LD.CIT(A) ERRED IN NOT DELIBERATING UPON THE OBJECTION OF THE APPELLANT AGAINST ACTIONS OF THE AO IN TREATING AN AMOUNT OF RS.3,04, 89,911.41 AS UNDISCLOSED SALE OF THE APPELLANT AND AGAINST INITI ATING PENALTY PROCEEDING U/S. 271AAA OF THE INCOME-TAX ACT, 1961 ON THAT ISSUE. 5. WE ARE OF THE VIEW THAT CHALLENGE TO INITIATE TH E PENALTY PROCEEDING U/S. 271AAA OF THE ACT IS PREMATURE AND HENCE DISMISSED. 6. THE NEXT ISSUE IN IT(SS)A NO.65/K/2011 OF ASSESS EE IS AGAINST THE ORDER OF CIT(A) UPHOLDING THE DISALLOWANCES U/S. 40(A)(IA) O F THE ACT IN RESPECT OF PAYMENTS PACKING INDIA LTD. AND CONTAINER CORPORATION OF IND IA. FOR THIS, ASSESSEE HAS RAISED FOLLOWING GROUND NO. 3: 3. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE, THE LD. CIT(A) ERRED IN UPHOLDING THE DISALLOWANCES U/S. 40(A)(IA) OF THE I NCOME TAX ACT, 1961, IN RESPECT OF PAYMENTS OF RS.62,992/- TO PACKING INDIA LTD. AND OF RS.1,41,455/- TO CONTAINER CORPORATION OF INDIA. 7. WE HAVE HEARD RIVAL SUBMISSIONS AND GONE THROUGH FACTS AND CIRCUMSTANCES OF THE CASE. WE FIND THAT THE AO MADE DISALLOWANCE OF TRANSPORTATION CHARGES FOR NON- IT(SS)A NO.63-65 & 77-81/KOL/2011 A.YS.06-07 TO 08- 09 AND 02-03, 04-05 05-06 & 08-09 SHREEGANESH WHEAT PRODUCTS PVT. LTD. V. DCIT, CC-V, KOL PAGE 4 DEDUCTION OF TDS BY INVOKING THE PROVISIONS OF SECT ION 40(A)(IA) OF THE ACT. ACCORDINGLY, THE AO MADE DISALLOWANCE OF TRANSPORTA TION CHARGES AT RS.62,992/- PAID TO PACKAGING INDIA LTD. AND RS.1,41,455/- TO CONTAI NER CORPORATION OF INDIA. THE ASSESSEES CONTENTION WAS THAT THESE PAYMENTS ARE M ADE TO GOVERNMENT AND HENCE, NO TDS IS TO BE DEDUCTED IN TERMS OF SECTION 196 OF TH E ACT BUT THE AO MADE A DISALLOWANCE. AGGRIEVED, ASSESSEE PREFERRED APPEAL BEFORE CIT(A), WHO ALSO CONFIRMED THE ACTION OF AO. AGGRIEVED, NOW ASSESSE E CAME IN APPEAL BEFORE US. 8. AT THE OUTSET, THE LD. COUNSEL FOR THE ASSESSEE HAS NOT SERIOUSLY CONTESTED THIS ISSUE AND HENCE, THE SAME IS DISMISSED. 9. THE NEXT COMMON ISSUE IN IT(SS)A NOS. 77 TO 79/K OL/2011 BY REVENUE IS AGAINST THE ORDER OF CIT(A) DELETING THE ADDITION M ADE BY ASSESSING OFFICER ON ACCOUNT OF DEEMED DIVIDEND. FOR THIS, REVENUE HAS RAISED SIMILAR GROUNDS IN ALL THE THREE APPEALS, EXCEPT VARIANCE IN AMOUNT. FOR THE SAKE OF CONVENIENCE, WE REPRODUCE GROUND NO. 3 IN IT(SS)A 77/KOL/2011, WHICH READS AS UNDER:- 3) THAT THE LD. CIT(A), CENTRAL-I, KOLKATA IS ERRE D IN DELETING THE ADDITION ON ACCOUNT OF DEEMED DIVIDEND OF RS.42,246/- RELYING ON THE CASE LAW OF M/S. LMJ INTERNATIONAL 119 TTJ(KOL) 214. 10. BRIEFLY STATED FACTS ARE THAT THERE WAS A SEARC H AND SEIZURE OPERATION CARRIED OUT ON THE BUSINESS AND RESIDENTIAL PREMISES OF THE ASS ESSEE 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 INCO ME. THE AO WHILE FRAMING THE ASSESSMENT MADE ADDITION OF DEEMED DIVIDEND OF RS.4 2,246/-, RS.15,344/- AND RS.11,709/- IN AY 2002-03, 2004-05 AND 2005-06 RESP ECTIVELY. 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 FOUN D DURING THE COURSE OF SEARCH, THE ADDITION CANNOT BE SUBJECT-MATTER UNDER THE PROCEED INGS INITIATED U/S. 153A OF THE ACT. THE CIT(A) IN PARA-3.2 OF HIS ORDER PASSED IN AY 2002-03 HAS OBSERVED AS UNDER:- IT(SS)A NO.63-65 & 77-81/KOL/2011 A.YS.06-07 TO 08- 09 AND 02-03, 04-05 05-06 & 08-09 SHREEGANESH WHEAT PRODUCTS PVT. LTD. V. DCIT, CC-V, KOL PAGE 5 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 GR OUP CASE, NOTHING INCRIMINATING IN RESPECT OF SUCH ADDITION / DISALLOWANCE WERE FOUND. SINCE THE ABOVE CLAIMS HAD BEEN ACCEPTED IN COURSE OF NORMAL ASSESSMENTS, AND SINCE THERE IS NO CHANGE IN THE FACTS AND CIRCUMSTANCES COMPARED TO THE PAST, THE AO WAS NOT JUSTIFIED IN REVIEWING THE COMPLETED ASSESSMENT OF THE SAID YEAR MERELY BECAUS E A SEARCH ACTION HAS BEEN CARRIED OUT IN THE PREMISES OF COMPANY. S. 153A DOE S 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 INITIATION OF SEARCH ABATE. THE EFFECT IS THAT COMPLETED ASSESSMENTS DO NOT ABATE. SINCE,, ADDITION ON ACCOU NT OF DEEMED DIVIDEND DOESNT EMANATE FROM INCRIMINATING MATERIAL FOUND DURING TH E 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 L MJ INTERNATIONAL VS DCIT (2008) 119 TTJ (KOL) 214 TO MAINTAIN THE JUDICIAL DISCIPLINE, WHERE IT HAS BEEN HELD THAT WHERE NOTHING INCRIMINATING IS FOUND IN THE COURSE OF SEARCH PROCEEDING RELATING TO ANY ASSESSMENT YEARS, THE COMPLETED ASSESSMENT FOR SUCH YEARS CANNOT BE DISTURBED ACCORDINGLY THE DISALLOWANCE OF RS.42246/- MADE BY THE A.O IS DELETED. ACCORDINGLY THE GROUND NO 2 AND 3 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 THE ENTIRE S ECTION. 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 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:- IT(SS)A NO.63-65 & 77-81/KOL/2011 A.YS.06-07 TO 08- 09 AND 02-03, 04-05 05-06 & 08-09 SHREEGANESH WHEAT PRODUCTS PVT. LTD. V. DCIT, CC-V, KOL PAGE 6 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 REGULAR ASS ESSMENT PROCEEDINGS, THE PROCEEDINGS FOR PENALTY WERE DRAWN UNDER SECTION 27 1 (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 HAVE 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 C OURT, ON A NOTICE ISSUED UNDER SECTION 153A OF THE ACT, THE AO WOULD HAVE PO WER TO UNDO WHAT HAS BEEN CONCLUDED UPTO THE HIGH COURT. ANY INTERPRETATION W HICH LEADS TO SUCH CONCLUSION HAS TO BE REPELLED AND/OR AVOIDED AS HEL D 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 APPELLANT ASSESSEE, THE OTHER THREE 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. IT(SS)A NO.63-65 & 77-81/KOL/2011 A.YS.06-07 TO 08- 09 AND 02-03, 04-05 05-06 & 08-09 SHREEGANESH WHEAT PRODUCTS PVT. LTD. V. DCIT, CC-V, KOL PAGE 7 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. 11. THE NEXT ISSUE IN IT(SS)A NO. 79/K/2011 OF THE REVENUE IS AGAINST THE ORDER OF CIT(A) DELETING THE ADDITION UNDER THE HEAD CAPITAL GAIN. FOR THIS, REVENUE HAS RAISED FOLLOWING GROUND NO. 4: 4. THAT THE LD. CIT(A), CENTRAL-1, KOLKATA IS ERRE D IN DELETING THE ADDITION UNDER THE HEAD CAPITAL GAIN AT RS.5,91,275/- RELYIN G ON THE CASE LAW OF M/S. LMJ INTERNATIONAL 119 TTJ(KOL) 214. 12. BRIEFLY STATED FACTS ARE THAT THERE WAS A SEARC H AND SEIZURE OPERATION CARRIED OUT ON THE BUSINESS AND RESIDENTIAL PREMISES OF THE ASS ESSEE 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 INCO ME. THE AO WHILE FRAMING THE ASSESSMENT MADE ADDITION OF CAPITAL GAINS AT RS.5,9 1,275/-. 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 FOUN D DURING THE COURSE OF SEARCH, THE ADDITION CANNOT BE SUBJECT-MATTER UNDER THE PROCEED INGS INITIATED U/S. 153A OF THE ACT. 13. 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 ADDITION OF CAPITAL GAINS. THE ISSUE IS SQUARELY COVERED IN FAVOUR OF A SSESSEE AND AGAINST THE REVENUE BY THE DECISION OF SPECIAL BENCH IN THE CASE OF ALL CARGO GLOBAL LOGISTICS LTD., V. IT(SS)A NO.63-65 & 77-81/KOL/2011 A.YS.06-07 TO 08- 09 AND 02-03, 04-05 05-06 & 08-09 SHREEGANESH WHEAT PRODUCTS PVT. LTD. V. DCIT, CC-V, KOL PAGE 8 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 ISSUE OF REVENUES APPEAL IS DISMISSED. 14. THE NEXT ISSUE IN IT(SS)A NO.80/K/2011 OF REVEN UE IS AGAINST THE ORDER OF CIT(A) DELETING THE DISALLOWANCES MADE BY AO U/S. 4 0(A)(IA) OF THE ACT FOR NON- DEDUCTION OF TDS ON PAYMENT OF HIRE CHARGES TO M/S. SHIVAM TRADERS. FOR THIS, ASSESSEE HAS RAISED FOLLOWING GROUND NOS. 1 AND 2: 1. THAT THE LD. CIT(A), CENTRAL-1, KOLKATA IS ERRE D IN DELETING THE DISALLOWANCE MADE BY THE AO U/S. 40(A)(IA) OF RS.1, 26,108/- FOR NON-DEDUCTION OF TAX AT SOURCE ON PAYMENT OF HIRE CHARGES TO M/S. SHIVAM TRADERS. 2. THAT TAX IS DEDUCTIBLE AT SOURCE AT THE TIME OF PAYMENT. THEREFORE, LD. CIT(A) IS NOT JUSTIFIED TO SAY THAT SEC. 40(A)(IA) APPLIES TO CASES IN WHICH THE HIRE CHARGES ARE PAYABLE AND IT IS NOT APPLICABLE T O AMOUNTS WHICH HAVE ALREADY BEEN PAID. 15. BRIEFLY STATED FACTS ARE THAT THE AO MADE DISAL LOWANCE OF TRANSPORT CHARGES OF SHIVAM TRADERS OF RS.1,26,108/- FOR THE REASON THAT THE ASSESSEE HAS FAILED TO DEDUCT TDS ON THE ABOVE TRANSPORTATION CHARGES AND HENCE, HE INVOKED THE PROVISIONS OF SECTION 40(A)(IA) OF THE ACT AND MADE DISALLOWANCE. AGGRIEVED, ASSESSEE PREFERRED APPEAL BEFORE CIT(A), WHO DELETED THE ADDITION ON T HE PREMISE THAT THE ISSUE IS COVERED BY THE DECISION OF HYDERABAD BENCH OF THIS ITAT IN THE CASE OF K. SRINIVAS NAIDU VS. ACIT (2010) TTJ 17 (HYD) WHEREIN IT IS HE LD THAT THE PROVISIONS OF SECTION 40(A)(IA) OF THE ACT IS APPLICABLE TO PAYABLE AMOUN TS AND NOT TO PAID AMOUNTS. AGGRIEVED, REVENUE CAME IN APPEAL BEFORE TRIBUNAL. 16. WE HAVE HEARD RIVAL SUBMISSIONS AND GONE THROUG H FACTS AND CIRCUMSTANCES OF THE CASE. AT THE OUTSET, IT IS TO BE STATED THAT T HIS ISSUE IS SQUARELY COVERED IN FAVOUR OF REVENUE AND AGAINST ASSESSEE BY THE DECISION OF JUR ISDICTIONAL HIGH COURT IN THE CASE OF CIT VS. CRESCENT EXPORT SYNDICATE IN ITAT NO. 20 OF 2013 IN GA 190 OF 2013 DATED 3 RD APRIL, 2013, WHEREIN DECISION OF SPECIAL BENCH OF THIS TRIBUNAL IN THE CASE OF MERILYN SHIPPING & TRANSPORT LTD. VS. ACIT, ITA NO. 477/VIZAG/2008, IT(SS)A NO.63-65 & 77-81/KOL/2011 A.YS.06-07 TO 08- 09 AND 02-03, 04-05 05-06 & 08-09 SHREEGANESH WHEAT PRODUCTS PVT. LTD. V. DCIT, CC-V, KOL PAGE 9 VISHAKHAPATNAM BENCH OF ITAT IS REVERSED. NOW THE I SSUE OF PAID AND PAYABLE IN RESPECT TO THE PROVISIONS OF SECTION 40(A)(IA) OF T HE ACT IS COVERED AGAINST ASSESSEE AND IN FAVOUR OF REVENUE BY THE DECISION OF HONBLE JUR ISDICTIONAL HIGH COURT. NO OTHER ARGUMENT WAS MADE BY THE ASSESSEES COUNSEL. HENCE, THIS ISSUE OF REVENUES APPEAL IS ALLOWED. 17. THE NEXT ISSUE IN IT(SS)A NO. 80/KOL/2011 OF RE VENUES APPEAL IS AS REGARDS TO THE ORDER OF CIT(A) DELETING THE DISALLOWANCE OF EM PLOYEES CONTRIBUTION TO ESI & P.F. FOR THIS, REVENUE HAS RAISED FOLLOWING GROUND NOS. 3 AND 4: 3. THAT THE LD. CIT(A), CENTRAL-1, KOLKATA IS ERRE D IN DELETING THE DISALLOWANCE MADE BY THE AO UNDER SEC. 36(VA) ON ACCOUNT OF DELA YED PAYMENT OF EMPLOYEES CONTRIBUTION TOWARDS ESI & PF AMOUNTING TO RS.36,27 0/-. 4. THAT THE WORDS BEFORE THE DUE DATE OF PROVISIO N OF SEC. 36(1)(VA) CLEARLY MEANS THE DUE DATE OF PAYMENT AS PER RELATING ACTS. 18. AS WE HAVE ALREADY DELIBERATED THIS ISSUE IN FA VOUR OF THE ASSESSEE AND WHICH IS COVERED BY JURISDICTIONAL HIGH COURT DECISION IN TH E CASE OF M/S VIJAY SHREE LIMITED , SUPRA, WE CONFIRM THE ORDER OF CIT(A). THIS ISSUE OF REVENUES APPEAL IS DISMISSED. 19. THE NEXT ISSUE IN IT(SS)A NO.81/K/2011 OF REVEN UE IS AGAINST THE ORDER OF CIT(A) DELETING THE ADDITION OF CASH CREDIT RS.45,0 00/-. FOR THIS, REVENUE HAS RAISED FOLLOWING GROUND NO. 3: 3. THAT THE LD. CIT(A), CENTRAL-1, KOLKATA IS ERRE D IN DELETING THE ADDITION OF CASH CREDIT RS.45,000/- RELYING ON THE CASE LAW OF M/S. LMJ INTERNATIONAL 119 TTJ (KOL) 214. 20. 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 I NCOME. THE AO WHILE FRAMING THE ASSESSMENT MADE ADDITIONS OF ABOVE NOTED UNEXPLAINE D CASH CREDIT OF RS.45,000/-. THE CONTENTION OF THE ASSESSEE WAS THAT THIS HAS ALREAD Y BEEN CONSIDERED IN THE ORIGINAL ASSESSMENT AND NO NEW FACTS CAME TO THE KNOWLEDGE O F THE REVENUE OR ANY IT(SS)A NO.63-65 & 77-81/KOL/2011 A.YS.06-07 TO 08- 09 AND 02-03, 04-05 05-06 & 08-09 SHREEGANESH WHEAT PRODUCTS PVT. LTD. V. DCIT, CC-V, KOL PAGE 10 INCRIMINATING MATERIAL WAS FOUND DURING THE COURSE OF SEARCH WHICH SUGGESTS THAT ASSESSEE HAS NOT DISCLOSED THE INCOME. NO PROCEEDI NGS WERE PENDING WHATSOEVER PERTAINING TO THIS ASSESSMENT YEAR. THE CIT(A) DELE TED THE ADDITION BY HOLDING THAT SINCE THERE IS NO INCRIMINATING MATERIALS WERE FOUN D DURING THE COURSE OF SEARCH, THE ADDITION CANNOT BE SUBJECT-MATTER UNDER THE PROCEED INGS INITIATED U/S. 153A OF THE ACT. AGGRIEVED, NOW REVENUE CAME IN APPEAL BEFORE TRIBUN AL ON THE ABOVE ISSUE. 21. 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 UNEXPLAINED CASH CREDIT. THE ISSUE IS SQUAREL Y COVERED IN FAVOUR OF ASSESSEE AND AGAINST THE REVENUE BY THE DECISION OF SPECIAL BENC H 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 CAS E OF JAI STEEL (INDIA) SUPRA. AS THE ISSUE IS COVERED IN FAVOUR OF ASSESSEE, WE CONFIRM THE ORDER OF CIT(A) DELETING THE ADDITION. THIS ISSUE OF REVENUES APPEAL IS DISMISS ED. 22. THE NEXT ISSUE IN IT(SS)A NO. 81/KOL/2011 OF RE VENUE IS AGAINST THE ORDER OF CIT(A) DELETING THE DISALLOWANCE OF EXPENSES MADE B Y ASSESSING OFFICER. FOR THIS, REVENUE HAS RAISED FOLLOWING GROUND NO. 4: 4) THAT THE LD. CIT(A), CENTRAL-I, KOLKATA IS ERRE D IN DELETING THE DISALLOWANCE OF EXPENSES OF RS.80,801/- RELYING ON THE CASE LAW OF M/S. LMJ INTERNATIONAL 11( TTJ (KOL) 214. 23. 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 I NCOME. THE AO WHILE FRAMING THE ASSESSMENT MADE ADDITIONS OF ABOVE NOTED EXPENSES. THE CONTENTION OF THE ASSESSEE WAS THAT THIS HAS ALREADY BEEN CONSIDERED IN THE OR IGINAL ASSESSMENT FRAMED U/S 143(3) OF THE ACT AND NO NEW FACTS CAME TO THE KNOWLEDGE O F THE 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 IT(SS)A NO.63-65 & 77-81/KOL/2011 A.YS.06-07 TO 08- 09 AND 02-03, 04-05 05-06 & 08-09 SHREEGANESH WHEAT PRODUCTS PVT. LTD. V. DCIT, CC-V, KOL PAGE 11 INCRIMINATING MATERIALS WERE FOUND DURING THE COURS E OF SEARCH, THE ADDITION CANNOT BE SUBJECT-MATTER UNDER THE PROCEEDINGS INITIATED U/S. 153A OF THE ACT. AGGRIEVED, NOW REVENUE CAME IN APPEAL BEFORE TRIBUNAL ON THE ABOVE ISSUE. 24. 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 ISSUE OF REVENUES APPEAL IS DISMISSED. 25. IN THE RESULT, ALL APPEALS OF ASSESSEE ARE ALLO WED AND THAT OF REVENUE ARE DISMISSED EXCEPT IT(SS)A NO. 80/K/2011 IS PARTLY AL LOWED. 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 GANESH WHEAT PRODUCTS PVT. LTD. 1 74, 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. B Y ORDER/ ' , 1/3 $ &)!,