2012 (11) TMI 709 - AT - Income Tax

Tribunal upholds AO's additions, dismisses assessee's appeals, confirms CIT(A)'s decisions, and remands penalty issue.

The Tribunal upheld most additions made by the Assessing Officer, dismissed the assessee's appeals on various grounds, confirmed the CIT(A)'s decisions on ... Addition on account of cash found at the time of search – Held that:- Assessing Officer after giving credit of business cash of Rs.44,213/- as determined by him on page-9 of the assessment order made an addition of Rs.4,49,558/- as undisclosed income of the assessee-company being unexplained cash - explanation of the assessee that the cash found for which the additions have been made was cash-in-hand available with other family members is without any cogent explanation or any evidence – addition upheld – In favor of revenue Addition - unaccounted sales – Held that:- Assessee has already debited all the purchases and expenses in the regular books of account. Thus sales found outside the books of account are nothing but undisclosed income of the assessee and therefore cannot be given the credit for purchases and the expenses and therefore gross profit addition cannot be made – against assessee Addition - unaccounted sales – Held that:- Sales shown by the assessee in the regular books of account tallies with the sales determined by the Sales Tax Department in the sales tax assessment order. The sales declared in the books of account are higher than sales found noted in loose paper – addition deleted – in favor of assessee Addition - unaccounted sales to customers - addition has been made by the Assessing Officer on the basis of notings in various loose papers – Held that:- Assessee has not issued any bill for cash sales and no record except the total amount of sales made during the day is kept and that the bills are issued only for credit sales and the sales made to franchises - in the absence of any expenditure brought on record outside the books by the assessee, the assessee cannot be given the benefit for application of gross profit – In favor of revenue Unaccounted Investment in valuables – alleged that assets are in the name of Shri Meenu M Agarwal and have not attempted to verify the source of the income from which the investment have been made. It is also a fact that Shri Manoj D Agarwal has made a disclosure of Rs.90,000/- as household goods and valuables under VDIS filed by him – Held that:- Source of income in case of the Director is not in his individual capacity but the income shown by the assessee-company and accordingly keeping in view the totality of such circumstances - source of investment in the said assets would logically be the undisclosed income of the assessee-company - AO was directed to treat the investment in question of Rs.60,000/- as made out of undisclosed income of the assessee company and no separate addition was directed to be made – in favor of revenue Addition on account of expenditure incurred in cash – alleged that Shri Kumbharam Jhat could not properly explain how the papers on which details regarding cash payment are made in his handwriting were found and seized from the residential premises of the Director at Rasranjan Complex – Held that:- Shri Kumbharam Jhat in his statement given the name of the parties to whom he has supplied the labour to which the said notings are pertaining, addition cannot be made in the hands of the assessee-company as unaccounted expenditure. The Director of the assessee-company has also explained as to how by mistake the said loose paper has been carried to his residence from factory and as a result, it was found from his residence – addition deleted – In favor of assessee Addition - unaccounted salary to Shri Kiritkumar S Shah – Held that:- In the absence of any incriminating documents found during the course of search and also the Assessing Officer having not given any opportunity to the assessee for cross examination of the person concerned – addition deleted- in favor of assessee Interest u/s.158BFA(1) - assessee contended that Xerox copies of loose papers were made available to the assessee at a very later stage during the assessment proceedings and therefore there was a delay in filing of the return of income – Held that:- Provisos attached to Section 158BFA(2) of the Act have not been considered by the authorities - relief has been granted at the two stages of appeal, hence, that effect ought to have been given while redetermining the quantum of penalty u/s 158BFA(2) of the Act considering the applicable provisions of the said section involved - appeal of assessee is allowed for statistical purposes Refund of the penalty paid – penalty set aside – Held that:- In the case of penalties the burden to show that the penalty has been passed on to another person is on the department and not on the assessee as in the case of duty - penal liability can never be passed on to another person who has not committed the offence - department has to prove that unjust enrichment would mean that some extra effort is required in addition to merely looking at the balance sheet or profit & loss account on the part of the department – In favor of assessee Issues Involved:1. Addition of cash found during search.2. Addition of amount advanced to Mangilal.3. Taxation of interest on the amount advanced to Mangilal.4. Addition as undisclosed investment.5. Addition of unaccounted sales.6. Addition of unaccounted expenditure.7. Addition of unaccounted salary.8. Set-off of unaccounted expenditure/investment against unaccounted income.9. Charging of interest under Section 158BFA(1).10. Penalty under Section 158BFA(2).Issue-wise Detailed Analysis:1. Addition of Cash Found During Search:The Assessing Officer (AO) added Rs. 4,49,558/- as unexplained cash found during the search. The assessee argued that only Rs. 2,89,105/- should be considered as excess cash. The Tribunal found no cogent explanation from the assessee regarding the cash found and upheld the addition made by the AO, dismissing the assessee's ground.2. Addition of Amount Advanced to Mangilal:The AO added Rs. 2,00,000/- based on notings in seized material. The assessee contended that the amount was only Rs. 20,000/-. The Tribunal upheld the AO's addition, agreeing with the logic of coded figures. However, the Tribunal found no evidence of interest received and upheld the deletion of Rs. 1,40,400/- by the CIT(A).3. Taxation of Interest on Amount Advanced to Mangilal:The AO added Rs. 1,40,400/- as interest on the amount advanced. The CIT(A) deleted this addition due to lack of evidence of interest receipt. The Tribunal upheld this deletion, agreeing with the CIT(A).4. Addition as Undisclosed Investment:The AO added Rs. 4,31,957/- as undisclosed investment based on notings in seized documents. The CIT(A) confirmed the addition. The Tribunal upheld the CIT(A)'s decision, finding no evidence to support the assessee's claim that the advances were received back.5. Addition of Unaccounted Sales:The AO added Rs. 11,78,245/- as unaccounted sales based on seized books of account. The CIT(A) confirmed this addition. The Tribunal found that the sales belonged to the assessee and upheld the addition, dismissing the assessee's argument for considering only gross profit.6. Addition of Unaccounted Expenditure:The AO added Rs. 2,77,298/- based on notings in seized documents. The CIT(A) deleted this addition, citing lack of evidence against the assessee. The Tribunal upheld the CIT(A)'s decision, agreeing that the assessee had discharged its onus.7. Addition of Unaccounted Salary:The AO added Rs. 1,55,000/- as unaccounted salary to an employee, based on seized documents. The CIT(A) deleted this addition, noting the lack of opportunity for cross-examination. The Tribunal upheld the CIT(A)'s decision, agreeing with the need for cross-examination.8. Set-off of Unaccounted Expenditure/Investment Against Unaccounted Income:The CIT(A) allowed set-off of unaccounted expenditure against unaccounted income. The Tribunal directed the AO to allow telescoping benefit after affording an opportunity of being heard to the assessee.9. Charging of Interest Under Section 158BFA(1):The assessee argued against the interest charged under Section 158BFA(1), citing delay in receiving Xerox copies of loose papers. The CIT(A) confirmed the interest. The Tribunal upheld the CIT(A)'s decision, finding no evidence of delay attributable to the Department.10. Penalty Under Section 158BFA(2):The AO imposed a penalty of Rs. 9,22,917/- under Section 158BFA(2) for concealment of income. The CIT(A) confirmed the penalty. The Tribunal found merit in the Revenue's argument and remanded the issue back to the AO for reconsideration, directing the AO to consider the appeals decided and the applicable provisions of the section.Conclusion:The Tribunal dismissed the assessee's appeals on most grounds, upheld the CIT(A)'s decisions on several issues, and remanded the penalty issue back to the AO for reconsideration. The Revenue's appeal was partly allowed for statistical purposes.