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2013 (5) TMI 471

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....pellate stage, as relevant evidence, without referring the same to AO for verification and comment, thereby violating the provisions of Rule 46A of the IT Rule 1962. 2. On the facts and in the circumstances of the case and law, the learned CIT (A) erred in deleting the addition without giving due weightage to the fact that AO confronted assessee with the gross octroi at Rs.38,90,67,651 and going by the evidences gathered, adopted commission on the same at 2% and that assessee has never objected to the same in the course of assessment proceedings. 3. On the facts and in the circumstances of the case and law, the learned CIT (A) erred in deleting the saidaddition without appreciating the fact that assessee was not forthcoming, either in the....

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....uiries from various parties to confirm the payment of commission and AO was wrong in considering both receipts and payments as income of assessee and estimating the commission thereon. The learned CIT (A) after considering the facts and arguments of assessee decided the issue as under: "7.2 I have considered the finding of AO, rival submission of the appellant and perused the evidence on record, carefully. I find that the learned AO has made this addition on wrong presumption that appellant has collected octroi on its own and also through authorized agent totaling to Rs.38,90,67,651. Contrary to the presumption of learned AO there is a visible fact on record that appellant has collected only an amount of Rs.19,46,02,023 as octroi from 4 pa....

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....lant has categorically submitted before AO that appellant has paid octroi to BMC through other agent on behalf of its client only of Rs.19,46,02,023. Therefore, unless contrary evidence is unearthed from the investigation either from the checknaka/octroi check post or from BMC, no such baseless presumption can be made that appellant has collected octroi through authorized agent and by own to the extent of Rs.38,90,67,651 and not of Rs.19,46,02,023. However, it is evident from the facts of the case that the learned AO has misunderstood the receipt and deposit of octroi. As such, considering the facts of the case, it is found beyond doubt that addition of Rs.26,21,118 has been made merely on the basis of presumption without any corroborative ....