TaxTMI 
TaxTMI 
2015 (6) TMI 6
X X X X Extracts X X X X
X X X X Extracts X X X X
....d had no prejudice or bias whatsoever against the assessee or his counsel, his MA was properly heard and expeditiously disposed of by an oral order fixing 4-3-15 as next date of final hearing . 2.1 As scheduled the appeal came up for hearing on 4-03-2015. During the course of hearing, ld. Counsel for the assessee Shri K.C. Moondra advanced a seemingly improbable proposition that an anonymous letter was received by him from benami employee of the Income Tax Department mentioning that some conspiracy was hatched by some income tax officers against the assessee. During the course of hearing of appeal bench found that these facts were not emerging from the record, consequently his contentions based thereon were not permissible u/r 10 of ITAT rules . Unaware of this rule Ld. Counsel's attention was drawn to Rule 10 of Income Tax Rules which reads as under:- Filing of affidavit ''1-. Where a fact which cannot be borne out by, or his contrary to, the record is alleged, it shall be stated clearly and concisely and supported by a duly sworn affidavit.'' 2.3 It was pointed out to him that his contentions and allegations against income tax department are not emerging from record i....
X X X X Extracts X X X X
X X X X Extracts X X X X
....sy excuse will amount to mockery of our own judicial order which was not in conformity with canons of judicial discipline. Shri Mukul Moondra was intimated that earlier hearing was ordered as final chance, therefore, his request for adjournment cannot be acceded. Consequently the adjournment application was rejected by following judicial order: ''Assessee had taken this date voluntarily. Now a prefixed marriage is pleaded to avoid final chance. Rejected. Sd/- Sd/- (T.R, Meena) AM (R.P. Tolani) JM 2.7 Since adjournment application was rejected, bench proceeded with the hearing, Shri Mukul Moondra neither filed the requisite affidavit nor advanced any arguments, consequently ld. DR Shri Rajesh Ojha was heard and record was perused, accordingly the appeal was taken as heard and reserved for orders. 2.8 When the Bench rose after finishing the board, Shri Mukul Mundra endeavored to raise an altercation with bench about giving adjournments to others and rejecting his application. He was politely told this being final chance in his appeal, adjournment request could not be acceded which was dismissed, the appeal was heard and will be decided on merits, they should wait for t....
X X X X Extracts X X X X
X X X X Extracts X X X X
....nt judgment process for petty professional ends. 3.1 It shall be noteworthy that till 28-4-15 these professionals had no objection with the bench as no grievance whatsoever was raised. The casual way of adjournment against final chance shows their casual attitude of taking the judicial process for granted. The emphatic demand that - if other matters were adjourned, our appeal should also have been adjourned; amounts to dictating the terms to the court. It reflects their inaptitude in failing to appreciate the vital fact that thus adjournment was granted as a final chance which was agreed by them. "They keep 'holier than thou attitude'; if I commit wrong or disobey there is nothing wrong in it but if the bench doesn't conduct itself in my desired way then bench is by default wrong and I raise scandalous tirade against bench." To show their might they shoot frivolous complaints, file litany of motivated RTIs proclaiming to be RTI activist. These brazenly scandalous acts have been unleashed by them with swagger of impunity and recklessness without realizing that when the appeal is pending orders such threats construe contempt of court. 3.2 The bench has no objection on sending a....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ficers, he deliberately filed various RTI applications asking for about 81 queries in respect of number of personal details about the judicial officers including their leave, HQ leaving permission, use of car, attendance in office, timings of holding courts, in whose case adjournments were granted or not granted, when officers go to Delhi, whom do they meet etc. etc. The above facts prove that RTI attack is not for any public purposes but to intimidate judicial officers, seized with his judicial matter. A trick to masquerade his blackmailing tactics for mean professional interest, to extract desired result in a sub-judice appeal. The RTI fiat unfolded by Mr. Moondra is an apparent colorable device, an attempt to influence/obstruct independent judicial process. The attempt amounts to a total misuse of professional position for dubious gains. 3.7 These acts amount to interfering and obstructing judicial process which apart from awarding of cost u/r 32A of ITAT rules is liable for appropriate contempt of court proceedings as well. Such attempts need to be seriously deplored, firmly tackled and suitably dealt with to send a message in professionals fraternity to behave properly and ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....artered Accountants of India to take appropriate disciplinary action against them in terms of ICAI rules and guidelines. The progress may be communicated to bench through registry. Now we proceed to decide the main appeal No 401/JP/12 5. Assessee has raised following grounds of appeal: "1. Entire alleged survey proceedings against the appellant was totally unlawful, arbitrary, hypothetical, fabricated, unfair, unreliable and with full of pressure & harassment tactics and therefore, entire survey proceedings, assessment and additions based on alleged survey proceedings are unlawful, arbitrary, hypothetical, fabricated, unfair and unreliable and therefore, liable to be quashed. 2. Ld. Commissioner of Income Tax (Appeals) erred in law in confirming following incorrect facts as mentioned by ITO in order U/s 143(3):- A. Para (a) at page No. 5-'total amount of the stock found on the date of survey was 226167 kgs amounting to Rs. 1`,41,16,603/- (value calculated by the assessee)' B. Para (b) at page No. 5-'calculated at the rate of Rs. 50.66 (average) declared by the assessee during submission'. C. Page No. 10- 'Stock as per computer books generated have been changed wit....
X X X X Extracts X X X X
X X X X Extracts X X X X
....s (work in progress) and stock on consignment are not at all recorded in that register. In fact, that register was not for accounting purpose but it was just for sake of convenience of production section of appellant' factory. Each and every transaction recorded in this register in this register was verified with the computerized stock records by the inspector as well as by A.O. himself. 7. Ld. Commissioner of Income Tax (Appeals) erred in law in confirming the validity of the order passed u/s 143(3) of the Income tax Act, 1961 even without confirming the service of any notice u/s 143(2) for initiating the proceeding for assessment and therefore, order so passed u/s 143(3) is unlawful and invalid. 8. The appellant requests to add, alter, amend, delete, substitute, withdraw or modify any of the grounds of appeal on or before hearing of the appeal." 5.1 All the grounds raised by the assessee are against the survey proceedings conducted U/s 133A by the Assessing Officer and making addition on the basis of survey material, confirming rejection of books of account U/s 145(3) and confirming the trading addition of Rs. 16,53,869/- . The ld Assessing Officer observed that the asse....
X X X X Extracts X X X X
X X X X Extracts X X X X
....Not pertain to relevant F.Y. 9. Case file M/s Jyoti International, Varanasi ----- Pertains to year 1998 bills 10. Rokar Bahi 2006-07 Not pertain to relevant F.Y. 11. Consignment register 2006-07 Not pertain to relevant F.Y. 12. L.C. Payment Register 2007-08 Checked and Verified 13. Consignment Register 2007-08 Checked and Verified 14. Nakal Bahi 2006-07 Not pertain to relevant F.Y. 15. File to M/s Live House 2007-08 Checked and verified 16. File of M/s Khifaf trading Co. Damman 2007-08 Checked and verified 17. File to M/s Maher Daliwati, Syria 2006-07 Not pertain to relevant F.Y. 18. File of M/s Al Hezam Intl trading & Contracting, Shuwaikh 2007-08 Checked and verified 19. File of M/s Al-Tayyor Establishment for trading & contracting, Saudi Arabia 2007-08 Checked and verified 20. File of M/s New Zealand Wool Service International Ltd., New Zealand 2007-08 Checked and verified 21. File of M/s Friendrich Sturm GMBH & Co. Kg Germany 2007-08 Checked and verified 22. File of M/s Altayyar Est. for trading and contracting, Saudi Arabia 2007-08 Checked and verified 23. File of M/s Altayyor Est. for tr....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... of and held lien to SBBJ Kekri 1998 to 2006 Not pertain to relevant F.Y. 49 File named Bhadoi file 2005-06 Not pertain to relevant F.Y. 50 File named Deluxe shipping Agency correspondence 2002-04 Not pertain to relevant F.Y. 51 Loose papers file named letter received file ---- Pertain to F.Y. 2005-06 & 2006-07 5.2 The Assessing Officer further observed that the above register/loose papers and files had been verified from books of accounts of the assessee, no discrepancy has been found except stock register mentioned at S.No. 2 pertaining to F.Y. 2007-08. The Assessing Officer further observed as under:- (a) During the survey operation stock was also physically taken having inventory of S.No. 1 to 97 out of which inventory of S.No. 10,12,13,17,19,22 and 23 of items pertain to M/s Mundra & Co. as reported by survey team (on record). The photocopy of above inventory had already been taken by the assessee and during the course of assessment proceedings after applying the rate and calculating the value of the items the value of total inventory produced before the undersigned having the total amount of the stock found on the date of survey was 2,26,167 ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....loyee of the company. In the statement, a question was asked regarding stock to the Director Shri Shivratan Mundra and before completing the statement the statement Shri Shivratan Mundra left the business premises that is why the question regarding conclusion of inventory of stock was not asked. The ld Assessing Officer had reproduced the statement U/s 133A of the Act as under:-- The Assessing Officer held that during the course of survey, statement of Shri Shivratan Mundra was recorded and signed by him. Copy of statement was provided vide ordersheet entry dated 22/10/2007 and 25/10/2007. The ordersheet entry was as under:- 22/10/2007 Sh. Shivratan Mundra Director of the company alongwith Sh. K.C. Mundra FCA/AR present inspection of the documents allowed and copy of documents/statements given as desire. Inspection done and Sd/- Copies as stated above (Ramesh Singhal) Received Signature of ITO Sd/- Signature of assessee Sh. Shivratan Mundra 25/10/2007 Photocopy of all impounded registers/files/books as in order of impounding dated 20/10/2007 has been provided/supplied. Sd/- (Ramesh Singhal) Signature of ITO Sd/- Aashutosh 25-10-2007 5....
X X X X Extracts X X X X
X X X X Extracts X X X X
....46,187/- and same was added in the total income of the assessee and penalty proceeding U/s 271(1)(c) of the Act had been initiated for furnishing inaccurate particulars of income. The Assessing Officer further observed that the assessee was running business of purchase and sale of woolen Yarn raw wool, woolen yarn and manufacturing of carpet woolen yarn. The assessee has disclosed the comparison of GP ratio of 3 years are as under:- Particulars /A.Y. 2006-07 2007-08 2008-09 Sales 70468340 85479801 76823116 Gross profit 11388197 13871684 10806840 % of G.P. 16.16% 16.22% 14.08% There was decline in G.P. rate, the assessee's explanation was not found tenable to the Assessing Officer, accordingly, he rejected the books U/s 145(3) of the Act. The Assessing Officer applied the G.P. rate of preceding year i.e. 16.22% on declared sale at Rs. 7,68,23,116/-, which gives G.P. at Rs. 1,24,60,709/- after reducing the gross profit declared by the assessee in return at Rs. 1,08,06,840/-. The net difference of Rs. 16,53,869/- had been added to the total income declared by the assessee for which Section 271(1)(c) penalty were also initiated for non disclosing of....
X X X X Extracts X X X X
X X X X Extracts X X X X
....n Mundra or one of his employees. This also proves that the inventory was prepared by survey team only with the help of appellant and his people. e. No evidence has been produced before the undersigned by appellant that signature of Shri S.R. Mundra on the stock inventory is forged. This allegation of appellant is absurd and deserves rejection on the face of it. Similarly the allegation that his signature was obtained in hospital in semi conscious state is also absurd. Shri Shiv Ratan Mundra refused to sign the statement and the statement was concluded without his signature. If survey team had to obtain his signature on stock inventory in semi conscious state, there is no reason as to why his signature on statement was also not obtained. Moreover medically it is not possible for a person to put his signature in semi conscious state. f. I, therefore, hold that stock inventory was prepared by the survey team in a systematic and elaborate manner and the same was duly signed by Shri Shiv Ratan Mundra. The wild allegations leveled by appellant against the survey team are absurd. Similarly, his allegation that the A.O. prepared stock inventory on his own deserves rejection on the f....
X X X X Extracts X X X X
X X X X Extracts X X X X
....671 (Bom) g. Ratanlal Omprakash Vs. CIT (1981) 132 ITR 640 (Ori) h. Bharat Milk Products Vs. CIT (1981) 128 ITR 682 (All) i. CIT Vs Pareek Bros 167 ITR 344 (Pat). 6.3 The estimation of income by applying GP rate of 16.22% on total sales by A.O. is also justified on the basis of GP declared by appellant itself in the earlier year. No satisfactory reasons were given either before the A.O. or the undersigned for fall in GP during the year. Therefore, estimation of income by applying GP rate of 16.22% by A.O. is found to be in order. His action is confirmed. Trading addition of Rs. 16,53,869/- is confirmed. Ground No. 4 and 5 of the appeal are thus dismissed." For service of notice U/s 143(2) of the Act, the ld CIT(A) has held as under:- "8.2 From the perusal of records it is found that notice U/s 143(2) was duly issued in this case by the A.O. on 13.08.2009 and the same was dispatched by speed post on 18.08.2009. Therefore, allegation of appellant that notice U/s 143(2) was fabricated by A.O. is baseless and not acceptable. 8.3 When two versions of an instance are given, one of them is by a responsible Government officer and other is by an anonymous person who ref....
X X X X Extracts X X X X
X X X X Extracts X X X X
.....09.2007. The authorized officer started recording statement of Shri Shiv Ratan Mundra, but he left the premises in night without completing the statement. On next day i.e. 19.09.2007 Shri Shiv Ratan Mundra came at around 11.30 A.M. and again left on the pretext that he will arrange labour for stock taking. He came back in the afternoon with four labour and thereafter stock taking was started. Again he left in the night without completing his statement. On the third day i.e. 20.09.2007 he came back and stock taking was resumed which continued till the evening. During all this period Shri Shiv Ratan Mundra kept misbehaving with survey team. He used abusive and threatening language and also called his German Shepherd dog for harassment of survey team. At the time of survey books of accounts were incomplete and therefore stock as per books could not ascertained. However, physical inventory of stock was prepared and the same was signed by Shri Shiv Ratan Mundra. The statement of Shri Shiv Ratan Mundra could not be completed. The authorized officer asked question No. 19 regarding stock inventory of appellant company as on 31/3/2007. Thereafter it is mentioned by authorized officer that:....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ee himself. It is found that assessee was non cooperative with the survey team as he has not given statement U/s 133A and also not signed on it. From the record, it is fact that a survey took three days to complete the survey proceeding which shows that there was non-cooperation from the Director of the company. As per assessment order also, there was non-cooperation and the survey team had impounded 51 books of account, which were relevant to various assessment years, which has been reproduced by the Assessing Officer on page 2 to 4 of the assessment order but no adverse inference has been drawn by the Assessing Officer. Only discrepancy was found in the stock position on the date of survey which has been calculated by both the authorities judiciously. Therefore, we do not find any reason to intervene in the order of the ld CIT(A). According we uphold the order of the ld CIT(A). This ground of assessee's appeal is dismissed. 10. Grounds No. 2,3,4, and 6 of the appeal are against discrepancies in stock valuation and making trading addition of Rs. 18,46,187/-. The ld CIT(A) held that this non-cooperative attitude of the appellant and his CA Shri K.C. Mundra continued during the a....
X X X X Extracts X X X X
X X X X Extracts X X X X
....tion No. 5 of the statement Shri Shiv Ratan Mundra was taken during the course of survey operation. The statement regarding stock is reproduced as under:- 10.2 This statement was duly signed by the Director of the company Shri Shiv Ratan Mundra. Ld. AR claimed that no copy of inventory was supplied by the survey team to the assessee but the ld CIT(A) held that as per ordersheet of Assessing Officer dated 22/10/2007 and 25/10/2007 revealed that Shri Shiv Ratan Mundra Director of the company alongwith Shri KC Mundra, CA/AR present, inspection of documents allowed and copy of documents/statement given as desired, which was signed by Shri Ramesh Singhal, who received the copy of documents, which was also signed by Shri Shiv Ratan Mundra, director of the company. On 25/10/2007, photo copy of all impounded register/file/books as in order of impounding dated 20/10/2007 had been provided/supplied by the Assessing Officer, which has been signed by Shri Ramesh Singhal and Shri Aashutosh. The assessee vide reply dated 06/12/2010 submitted that regarding discrepancy found in the stock, the stock summary as on 17/09/2007 of Rs. 2,54,98,772.93 duly signed by the AR of the assessee during the ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ignature of director, therefore, this list was prepared by the IT official manually with the help of staff of assessee. The assessee submitted a list of closing stock during the assessment proceedings at Rs. 2,54,98,772.93 and physical stock during the course of survey was found at Rs. 1,41,16,603/-. There was a shortage in stock at Rs. 1,13,82,169/-. The assessee has shown G.P. rate in immediate preceding year @ 16.22% on the basis of this GP rate, the total GP addition was made by the Assessing Officer and confirmed by the ld CIT(A) had Rs. 18,46,187/- is justified. There was a discrepancy during the course of survey on the basis of stock inventory prepared physically as well as stock position on the basis of books of account. Therefore, the Assessing Officer rightly rejected the book result U/s 145(3) of the Act. We do not find any reason to interfere with the order of the ld CIT(A). Accordingly, grounds No. 2,3,4 and 6 of the appeal are dismissed. 11. Ground No. 5 of the assessee's appeal is against confirming the trading addition of Rs. 16,53,869/-. The Assessing Officer observed that during the year, the assessee's G.P. had gone down compared to immediate two preceding yea....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... and his own words admitted that- 13.1 The ld CIT(A) found that 143(2) notice was dispatched through speed post on 18/8/2009. Therefore, he found that allegation of the appellant that notice U/s 143(2) of the Act was fabricated by the Assessing Officer is baseless and not acceptable. The appellant also had not brought any evidence regarding fabrication of notice as well as allegation made in anonymous letter. Therefore he dismissed the assessee's ground of appeal. 13.2 We have gone through the order of lower authorities. The assessee had not brought on record any evidence against the notices issued by the Assessing Officer even his objection has been considered by the Assessing Officer. The alleged anonymous complaint had no relevance with reference to service of notice U/s 143(2) of the Act in absence of evidence. The assessee alongwith his authorized representative appeared before the Assessing Officer and had cooperated in assessment proceedings, therefore, as per Section 292BB of the Act where as assessee has appeared in any proceeding or cooperated in any enquiry relating to an assessment or reassessment, it shall be deemed that any notice under any provisions of this Ac....
X X X X Extracts X X X X
X X X X Extracts X X X X
....¥à¤µà¤¾à¤°à¤¾ सही सà¥à¤¥à¤¿à¤¤à¤¿ बनवा रहा हूठजो आपको कà¥à¤› देरी में पà¥à¤°à¤¸à¥à¤¤à¥à¤¤ कर दूंगा। Document 2 इमà¥à¤ªà¤¾à¤‰à¤Ÿà¥€à¤‚ग आरà¥à¤¡à¤° के उनिकà¥à¤œà¤° B-1 में वरà¥à¤£à¤¿à¤¤ डाकà¥à¤¯à¥‚मेंट फाइल, लेखाबही इतà¥à¤¯à¤¾à¤¦à¤¿ कà¥à¤°à¤® संखà¥à¤¯à¤¾ 1 से 51 तक की फोटो कापी पà¥à¤°à¤¾à¤ªà¥à¤¤ की | Document 3 "मैं अपनी औकात को जानते हà¥à¤ आपको à¤....
X X X X Extracts X X X X
X X X X Extracts X X X X
....या। हमारी बहà¥à¤¤ समà¤à¤¾à¤¨à¥‡ के बावजूद उसने हमारी à¤à¤• नहीं सà¥à¤¨à¥€à¥¤ जब जब उसकी गडबड़िया नजर आती व उस संबंध में जब उससे पà¥à¤°à¤¶à¥à¤¨ करते तो वह हमसे बहà¥à¤¤ ही बदतमीजी समे बात करता à¤à¤µà¤‚ डराने धमकाने की कोशिश करता। सही पà¥à¤°à¤•à¤¾à¤° समे सà¥à¤Ÿà¤¾à¤• टेकिंग à¤à¥€ नहीं ....