TaxTMI 
TaxTMI 
2018 (5) TMI 1385
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....Appeal. PRAYERS : i) The assessment order upheld by learned CIT (A) may kindly be declared nullity as the same is not in conformity with the legal provisions. ii) The addition of Rs. 53,75,370 made on account of unexplained expenses under section 69C may kindly be deleted . The above grounds and relief claimed are independent and without prejudice to another." ITA No. 590/Del/2012 (Revenue's appeal) 1. On the facts and in the circumstances of the case, the Ld C1T (A) has erred in deleting the addition of Rs. 53,75,370/- made by the Assessing Officer u/s 69C of the Income Tax Act, 1961 in respect of unaccounted cash receipt without disclosing the same into its books of account. 2. The order of Ld. C1T (A) is perverse in law and on facts. 3. The appellant craves leave to add, alter or amend any / all of the grounds of appeal before or during the course of the hearing of the appeal. 2. It is observed from the order sheet that the appeal was filed by assessee on 20/01/12 and date of hearing was mentioned as 22/03/2012, which is apparent from the acknowledgement-cumnotice. However on the said date application for adjournment was filed b....
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....ent. Ld. AO accordingly issued fresh notice under section 142(1) once again on 09/09/10 fixing the case for hearing on 24/09/10, assessee in response to notice filed reply on 24/09/10 vide letter dated 24/09/10 requesting for 15 days time for preparation of return for the year under consideration. The case was accordingly adjourned to 30/09/10. On the said date assessee filed a letter wherein it furnished details in the format of return, by showing loss. 3.1. Ld. AO observed that assessee being a company was required to file its return of income for the year under consideration, on or before 30/09/08 under section 139 (1) of the Act or else should have filed the return by 31/03/2010, under section 139(4) as belated return. Ld.AO observed that assessee did not file its return under any of the above provisions. Ld.AO in order to arrive at the correct taxable income of assessee for the year under consideration considered the details filed by assessee. Ld.AO observed from the details filed that assessee had shown against the authorised and subscription capital of Rs. 1,00,000/- only, whereas assessee has declared creditors of Rs. 1,50,53,813/-without doing any business. From the ....
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....allow the benefit of carry forward of loss to a belated return. So far as issue of notice 143(2) is concerned, the argument of the appellant is not correct. The AO has issued 142(1) notice on 08-10-2010 and also issued a separate notice dated same with a caption subject "Assessment proceedings for the assessment year 2008-09 regarding" in the form of a questionnaire asking details on 29 points necessary for enabling him to complete the assessment u/s 143(3). Both the notices were issued on 08/10/2010 for compliance on 20.10.2010 before the completion of assessment. The notice u/s 143(2) is over emphasized by the appellant ignoring the fact that the questionnaire as mentioned above dated 8-10-2010 has all the necessary ingredient of 143(2) notice. In the case of Ashok Chddha Vs ITO 337(ITR) 399 it has been held by Hon'ble Delhi High Court in para 14 of the judgment " No specific notice was required under section 143(2) of the Act when the notice in the present case as required under section 153A(A) (1) (a) of the Act was already given. In addition, the two questionnaires issued to the assessee were sufficient so as to give notice to the assessee, asking him to attend the office of t....
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....g been initiated for the year under consideration on the basis of the returns filed by assessee in response to the notice issued under section 143 (1) of the Act. 9.1. Section 143 (2) of the act reads as under: 143. Assessment (1)............. (2) where a return has been furnished under section 139, or in response to notice under subsection (1) of section 142, the assessing officer or the prescribed income tax authority, as the case may be, if, considers it necessary or expedient to ensure that the assessee has not understated the income or has not computed excessive loss or has not underpaid the tax in any manner, shall serve upon the assessee a notice requiring him, on a date to be specified there in, either to attend the office of the assessing officer or to produce, or cause to be produced before the assessing officer any evidence on which the assessee may rely upon in support of the return" 9.2. On the bare perusal of the aforesaid subsection (2) of section 142 it is very clear that Assessing Officer has to call upon the assessee to attend the office for the purposes of carrying out the assessment proceedings or the Assessing Officer shall call....
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....t on record to prove that the appellant had carried on filing activities and has incurred expenses except a wild remark made by some party. The appellant's books of accounts were audited and the assessing officer is bound to accept it unless contrary is proven. It is an strange affairs that the appellant would not claim expenses against the filing work if they have been incurred. It is also surprising that the same amount of Rs. 53,75,370/- has been taken as expenses incurred against the alleged same amount of filing receipt. That shows non application of mind on the part of assessing officer. No evidence of whatsoever nature was produced by the Virat Exim to prove that filing work was done by the appellant. The said Virat Exim even did not disclose the sight at which filing was done. The fact is that M/s virat Exim was the middleman between the appellant and he farmers from whom the appellant had agreed to purchase land for development and had advance an amount of Rs. 78,24,000/-. M/s Virat stood a guarantor and when deal could not got through, it had to return appellant's money and in lieu of the amount of Rs. 53,75,370/- the appellant had to forego balance amount of Rs.....
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.... on the basis of the statement of a third party. No corroboratory evidence in this regard was brought on record by the A.O." 11.2. Ld. CIT (A) decided the issue by observing as under: (ii) That addition of Rs. 53,75,3701- was made u/s 69C of IT Act. The appellant argued that the addition is made on whims and fancy of the assessing officer and based on presumptions. It is stated that a wild remark by some party cannot be the basis of addition. It is stated by the AO that the appellant has received payment of Rs. 53,75,370/- from M/s Virat Exim Pvt. Ltd. Mohali. In its reply to the AO, the appellant had informed that there was an agreement with M/s Virat Exim (P) Ltd., however, M/s Virat Exim (P) Ltd. informed vide its letter dated 22.11.2010 that it had made payment of Rs. 53,75,370/- to the appellant towards land development expenses and earth filling fee and there was no land purchase involved with the above mentioned party against this payment. It has further been informed in the above mentioned letter that U-Like Promoters Pvt. Ltd. had raised an invoice on Virat Exim (P) Ltd against above referred services and also the payment was directly remitted to its account an....
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.... the books, the logical inference is that it has met such expenditure from undisclosed sources. The AO has rightly added the amount under 69C of IT Act and the addition of Rs. 53,75,370/- is thus confirmed. 11.3. As has been recorded by Ld. CIT (A) there is a total contradiction in submissions advanced by assessee before the Assessing Officer as well as Ld. CIT (A) vis-a-vis M/s Virat Exim regarding existence of agreement between both the parties. It is observed from the submissions advanced by assessee before Ld. CIT (A) that assessee has contended to have received back the said amount from M/s Virat Exim out of total advances to tune of Rs. 78,24,000/- made to various farmers for purchase of agricultural land in the year 2005 and 2006. It has also been alleged by assessee before Ld.CIT(A) that information sought by Ld.AO from M/s Virat Exim under section 133 (6) was not provided to assessee, which is the basis of addition in the hands of assessee. It is observed that neither Ld.AO nor Ld.CIT(A) conducted any enquiries/verification regarding the same. Neither Ld. CIT (A) not Ld.AO has verified the genuineness of the amount received from M/s Virat Exim. 11.4. Most importantly....
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.... was received in cash and the same was not recorded in the books of accounts. The amount received from M/s Virat Exim Pvt. Ltd. being representative of the farmers was received towards the advances and has been rightly credited to advances account no. cash of whatsoever nature was received from the farmers. The appellant will file an affidavit on this if directed to do so. The above submissions/contentions are independent and without prejudice one another. In view of above submission and case law, it is prayed that the assessment order may be declared a nullity or in alternative above addition may kindly be deleted. 15. Assessee is casting the burden on Ld.AO to prove that the alleged amount was received in cash. It has been submitted that amount has been received from M/s Virat Exim who was the representative of farmers as advance and no cash has been received from farmers. 15.1. It is observed that Ld. CIT (A) has decided the issue by observing as under: "(iii) The AO further added a sum of Rs. 53,75,370/- on the ground that the appellant company had received the amount of Rs. 53,75,370/- in cash from various farmers as the company in its books re....