TaxTMI 
TaxTMI 
2018 (12) TMI 458
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....l income declared (Rs.) 2011-12 24.01.2012 2,15,590/- 2012-13 27.09.2012 6,34,250/- 2013-14 23.09.2013 12,56,580/- As per the details on record, the above returns of income for Assessment Years 2011-12 to 2013-14 filed by the assessee were not subject to scrutiny assessment. 2.2 A survey u/s 133A of the Income Tax Act, 1961 (in short 'the Act') was conducted on 28.08.2014 in the business premises of one Shri. Kashinatha Khemsa Khode at (i) Mahalaxmi Market, Divatgi Oni, Hubli and (ii) at another business premises at CTS No. 468, Bellary Galli, Hubli. In the course of the survey, it was allegedly found that Shri. Kashinath Khemsa Khode was carrying on the business of purchase and sale of liquor in the name and style of M/s. A. R. Habib & Wines and for this business, was using the Excise Licence standing in the name of the assessee. Therefore, the purchase and sale of liquor business of M/s. A. R. Habib & Wines were made in the name of the assessee. Certain material in the form of loose sheets, note books and diaries were also found and impounded in the survey action. On the basis thereof, a statement of one Shri. Anil Kashinath Khode, son of the afor....
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....r Assessment Years 2012-13 and 2013-14, the AO made disallowance of Rs. 4,18,600/- for each of these 2 Assessment Years in respect of Excise Licence Fee paid and claimed by the assessee in his profit and loss account; holding that the assessee was not able to provide the challan for having paid the Excise licence fee. 2.4 Aggrieved by the orders of assessment; all dated 31.03.2016 for Assessment Years 2011-12 to 2013-14, the assessee filed appeals before the CIT(A), Hubli, raising several grounds contending that the aforesaid 2 additions/disallowances were unwarranted. The CIT(A), after hearing the assessee, dismissed the appeals for these three Assessment Years vide the impugned orders dated 31.08.2017; holding that, in respect of the additions made towards rent received for each of the three years, the notings in the impounded materials are unambiguous; are written in the normal course of business and that Shri. Anil Kashinath Khode who looks after the wine business had clearly deposed that the payments are nothing but payments of rent for the use of the liquor licence exploited by Shri. Kashinath Khemsa Khode. The CIT(A) also held that the statement denying the receipt of ren....
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....Sri Anil Kashinatha Khode cannot be brushed aside as unreliable and the addition made on this basis is misconceived and the same deserves to be deleted. 4. Without prejudice to the above, the learned A.O. ought to have excluded the income returned by the appellant from the business of running the liquor shop consistent with his finding that the appellant was merely in receipt of rent from the said liquor shop being run by Sri Kashinatha Khode under the facts and in the circumstances of the appellant's case. 5. Without prejudice to the right to seek waiver with the Hon'ble CCIT/DG, the appellant denies himself liable to be charged to interest u/s. 234-A and 234-6 of the Act, which under the facts and in the circumstances of the appellant's case and the levy deserves to be cancelled. For the above and other grounds that may be urged at the time of hearing of the appeal, your appellant humbly prays that the appeal may be allowed and Justice rendered and the appellant may be awarded costs in prosecuting the appeal and also order for the refund of the institution fees as part of the costs. 3.2 I have heard the rival contentions of both parties a....
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....oth by Shri. Kashinath Khemsa Khode in his statement recorded in this regard on 17.03.2016 and Shri. Anil Kashinath Khode in his statement recorded on 18.03.2016. The aforesaid Affidavits dated 19.11.2015 and statements dated 17.03.2016 and 18.03.2016 were not confronted but just brushed aside by the AO/CIT(A). In support of the proposition that the Affidavits filed by Shri. Kashinath Khemsa Khode and Shri. Anil Kashinath Khode is a valid piece of evidence and cannot be ignored, the learned AR placed reliance on the decision of the Hon'ble Apex Court in the case of M/s. Mehta Parikh & Co., (30 ITR 181) (SC). According to the learned AR, the assessee was running the business of the Wine Store and not Shri. Kashinath Khemsa Khode as stated in the earlier statement dated 28.08.2014 of Shri. Anil Kashinath Khode. In this regard, it was further contended that the assessee has filed the returns of income for the aforesaid three Assessment Years declaring income from the business of purchase and sale of liquor in the name and style of M/s. Jayalaxmi Wine Centre and thus making an addition on account of rent on the very same business amounts to double taxation. 6.2 Per contra, the learn....
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....ive evidences brought on record to support the same. The entries in the diary found in the course of survey are admittedly not in the assessee's handwriting and the payment of rent to the assessee has also been denied by both Shri. Anil Kashinath Khode and his father Shri. Kashinath Khemsa Khode in Affidavits dated 19.11.2015, filed in the course of assessment proceedings. I have also perused the statement of the assessee recorded on 17.03.2016 and the statement of Shri. Kashinath Khemsa Khode recorded on 18.03.2016 recorded in the course of assessment proceedings; wherein they have completely denied that the assessee had received any rent from Shri. Kashnath Khemsa Khode for using the Excise Licence for carrying on the liquor business and the said statements corroborate the submissions in the Affidavits filed by Shri. Anil Kashinath Khode and Shri. Kashinath Khemsa Khode; all of which have been merely brushed aside by the authorities below as mere afterthoughts and as being unreliable without controverting the declarations made therein. It is settled position that Affidavit filed have evidentiary value and the same cannot be ignored; as has been held by the Hon'ble Apex Court in t....