TaxTMI 
TaxTMI 
2017 (8) TMI 177
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....essee representing unsecured loans of Rs. 29,07,958/- whereas the facts clearly indicates that the assessee has not produced evidences in support of the same. 4. That the appellant craves to be allowed to add any fresh grounds of appeal and/or delete or amend any of the grounds of appeal." (B). this appeal filed by Revenue is late by three days. The assessing officer (AO), vide letter dated 15.09.2011 requested for condonation of delay. The relevant portion of the letter of the AO is reproduced as under:- "In this regard, it is submitted that an appeal in the case is being filed separately. The order of Ld.CIT(A) was received on 14.07.2011 and hence the limitation to file further appeal was by 12.09.2011. Due to unavoidable circumstances such as incumbent being new in the Ward; change in procedure in submitting Central Scrutiny Report and bad weather; the authorization for filing appeal could be signed on 14.09.2011 and the same was received by the undersigned on 15.09.2011. Therefore, it is requested that the nominal delay in filing of appeal may please be condoned." (B.1). On perusal of record, we find that the assessee has not filed any objection to condonation of delay....
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....ces which were sent by Ld. CIT(A) to the AO. In his report, the AO objected to the admission of additional evidence and also made submissions on merits of the additions. The Ld.CIT(A) however admitted the additional evidences, and vide order dated 13.06.2011, the Ld.CIT(A) deleted all the additions made by the AO. The Revenue has filed this appeal against the aforesaid order of 03.06.2011 of Ld.CIT(A). During appellate proceedings in ITAT, hearings were fixed on 15.11.2011, 09.04.2012, 25.07.2012, 06.06.2013, 15.10.2014, 06.04.2015, 05.08.2015, 16.11.2015, 03.03.2016, 04.07.2016, 05.10.2016, 02.01.2017 and finally on 16.03.2017. Thus, adequate opportunity has been given by ITAT to both sides in this appeal. On the previous date of hearing on 02.01.2017, both sides were represented in the Court Room and hearing was adjourned to 16.03.2017 at the request of both sides and both sides were informed. On 16.03.2017 when the appeal came up for hearing, no one was present on behalf of the assessee. As this is a very old matter (appeal was filed on 15.11.2011) and both sides have already been provided adequate opportunities, we proceed to decide this appeal ex-parte qua the assessee. At the....
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....uty Commissioner (Appeals)] [or, as the case may be, the Commissioner (Appeals)] to direct the production of any document, or the examination of any witness, to enable him to dispose of the appeal, or for any other substantial cause including the enhancement of the assessment or penalty (whether on his own motion or on the request of the [Assessing Officer]) under clause (a) of sub-section (1) of section 251 or the imposition of penalty under section 271.]" (D.1) Vide letter dated 14.02.2011 submitted by the AO to the Ld. CIT(A), the AO objected to admission of additional evidence under Rule 46A stating as under:- "In this regard, it is submitted that the assessment proceedings in this case were completed ex-parte u/s 144 of the Act on 10.12.2009. During the course of assessment proceedings, on 26.02.2009 a questionnaire was issued fixing the case for hearing on 06.03.2009. Thereafter the case was attended on 20.07.2009 and 23.11.2009 by the Authorized Representatives of the assessee but even a single detail as called for vide questionnaire dated 26.02.2009 was not furnished. Now the Ld. Counsel for the assessee has given a number of reasons to justify a claim that it was passi....
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.... factory for obtaining any records. The Id. AR has furnished copy of e-mail correspondences from July 2009 to December 2009 regarding the breakdown at the factory, and copy of the police enquiry report dated 08.01.2009 issued by the Police Station at Kundli regarding death of the worker on 07.01.2009. It is submitted that there was mounting pressure for repayment of loans / credits from banks and creditors. The bankers also called back the entire loan and sent notice under section 13(2) of the Securitisation and Reconstruction of Financial Assets and Security Interest Act, 2002. The appellant has furnished copy of the above notice dated 31.12.2009 issued by the Chief Manager State Bank of Indore, Rajouri Garden, New Delhi Branch. The appellant has also submitted that the main Director, Shri Ashok Batra had serious eye ailment during the above period and was unable to do any paper work during that period. In this regard, the Id. AR has submitted copy of the medical prescription dated 29.11.2009 from Dr. Sanjeev Taneja, Senior Eye Surgeon, Sir Ganga Ram Hospital, New Delhi. It is further submitted that there were cases against the appellant company and its Directors-U/s 138(B) of the....
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....en once communicated by the assessee to the AO during the course of the assessment proceedings; even though the assessee failed to avail opportunities provided by the AO and continued its non-compliance with the requirements to furnish the details to the AO. The assessee did not communicate the reasons for non-compliance to the AO but communicated the reasons only at the appellate stage before the Ld.CIT(A). This questionable conduct of the assessee which was pointed out by the AO in his aforesaid letter dated 26.02.2009 has not been dealt with by the Ld. CIT(A). The prolonged non-compliance by the assessee from 06.03.2009 (when the case was first fixed by AO for hearing after issue of questionnaire) till 27.11.2009 (the last date of hearing before AO passed assessment order) cannot be justified on the basis of reasons considered by the CIT(A). The assessee is a corporate entity and is expected to deal with the various business situations and legal circumstances that arise from time to time. That the assessee had other business situations and legal circumstances to deal with cannot be treated as sufficient cause for protracted non-compliance of more than 8 months. Alongwith other b....
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....M. Esufali H.M. Abdulali (supra) has not been considered by ld. CIT(A). In the case of CST vs. H.M. Esufali H.M. Abdulali (supra) Hon'ble Apex court held that if the estimate made by the assessing authority is a bonafide estimate and is based on a rational basis, the fact that there is no good proof in support of that estimate is immaterial. The Hon'ble Apex Court further held that prima facie, the assessing authority is the best judge of the situation, that it is his best judgment and not anyone else's. The Hon'ble Apex Court moreover held that high court cannot substitute its best judgment for that of the assessing authority. The substance of this order of Hon. Apex court in CST vs. H.M. Esufali H.M. Abdulali (supra) is, that in a best judgement assessment, appellate authorities cannot substitute their best judgement for that of the Assessing Officer, if there is a reasonable nexus between the basis adopted by the Assessing Officer and the estimate made by him. (E.1) Hon'ble Madras High Court, in the case of CIT vs. Rayala Corporation (P.) Ltd. 215 ITR 883 (Mad.) took note of the order of Hon'ble Supreme Court in CST vs. H.M. Esufali H.M. Abdulali (supra)....
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....s of an appellate court under the Code of Civil Procedure. A wide power, however, is not such that it can be exercised in any manner. The Tribunal can interfere with the orders of the lower authorities, but can do so only on judicial considerations and on the basis of the reasons that suggest clearly that the lower authorities had committed an error of law or such facts that had vitiated its considerations. Its primary task is not to go into the return of the assessee and decide what amount of tax should be levied upon his income, but to see whether the taxing authorities, including the Appellate Assistant Commissioner, have committed any error of law or of fact and on account of such error, the assessee has suffered. The Tribune! has got to protect, on the one hand, the interest of the assessee in the sense that he is not subjected to any amount of tax in excess of what he is bound to pay and on the other hand, it has a duty to protect the interests of the Revenue and to see that no one dodged the Revenue and escaped without paying the tax." (E.2) On careful reading of the judicial precedents in the cases of CST vs. H.M. Esufali H.M. Abdulali (supra) and CIT vs. Rayala Corporati....
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.... in its trading account and claimed expenses of Rs. 28,96,143/- decides depreciation and directors remuneration in its P & L A/c Thus, the assessee has claimed Rs. 56.79.979/- on account of various expenses other than purchases, depreciation and directors remuneration against the total receipts of Rs. 4,03,47,772/-. As none of the expenses could be verified due to non cooperative attitude of the assessee, Rs. 5,67,997/- being 10% of said expenses i.e. Rs. 56,79,979/- is disallowed and added to the income of the assessee." (G). As far as the separate additions of Rs. 1,10,75,000/- and Rs. 29,07,958/- u/s 68 of I.T.Act is concerned, it is settled law that the onus is on the assessee to prove identity and creditworthiness of the person and onus is further on the assessee to prove the genuineness of transactions. By not providing relevant evidences and materials to the AO, the assessee failed to discharge the onus on all the counts and, therefore, the AO was justified in making these additions. Further, the disallowance of 10% out of expenses of Rs. 56,79,979/- claimed by the assessee was made by the AO because these expenses could not be verified due to non-compliance by the assesse....