TaxTMI 
TaxTMI 
2021 (1) TMI 392
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....t from supari business operations, based on the piece of paper found during the course of search wherein certain figures were written, by overlooking the case laws relied on by the appellant. b) The learned CIT(A)-2, Panaji has failed to appreciate the fact that, turnover as per VAT return includes URD Purchases, which is not taxable turnover as per the Income tax Act. c) The learned CIT(A)-2, Panaji on the facts and circumstances of the case, the appellant is not aware of the higher turnover shown in the department software and the said amount is not matching with the actual VAT returns filed by the appellant and therefore difference amount treated as undisclosed turnover of the appellant by the assessing authority is contrary to the evidence in hand and therefore against the facts of the case d) The learned CIT(A)-2, Panaji has overlooked the fact that, there was no material whatsoever at the lime of issuance of warrant that the appellant was in possession of any money, bullion of valuables which represented any undisclosed income whether wholly or partly for the purposes of the income tax Act 1961 to warrant the issuance of the search warrant as the se....
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....hases, which is not taxable turnover as per the Income tax Act. c) The learned CIT(A)-2, Panaji on the facts and circumstances of the case, the appellant is not aware of the higher turnover shown in the department software and the said amount is not matching with the actual VAT returns filed by the appellant and therefore difference amount treated as undisclosed turnover of the appellant by the assessing authority is contrary to the evidence in hand and therefore against the facts of the case d) The learned CIT(A)-2, Panaji has overlooked the fact that, there was no material whatsoever at the time of issuance of warrant that the appellant was in possession of any money, bullion of valuables which represented any undisclosed income whether wholly or partly for the purposes of the income tax Act 1961 to warrant the issuance of the search warrant as the searches never revealed existence of any asset or valuables. Therefore, the search warrant issued to search and seizure in the premises of appellant's father was patently ultra vires the section 132 of the Act, 1961. e) The learned CIT(A)-2, Panaji on the facts and circumstances of the case, has grossly i....
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....failed to appreciate that. Assessing Officer has grossly ignored the fact that, appellant has declared total turnover of Rs. 2,92,08,185.50, out of which interstate supari sales amounting to Rs. 1,72,39,305.50/-, which includes the alleged suppressed turnover computed by the Assessing Officer amounting to Rs. 89,70,545/-. d) The learned CIT(A)-2, Panaji has overlooked the fact that, there was no material whatsoever at the time of issuance of warrant that the appellant was in possession of any money. bullion of valuables which represented any undisclosed income whether wholly or partly for the purposes of the income tax Act 1961 to warrant the issuance of the search warrant as the searches never revealed existence of any asset or valuables. Therefore, the search warrant issued to search and seizure in the premises of appellant's father was patently ultra vires the section 132 of the Act, 1961. e) The learned CIT(A)-2, Panaji on the facts and circumstances of the case, has grossly ignored the fact that, there was no material whatsoever with the department to induce a belief that the criteria for issuance of warrant u/s. 132(1) existed. Consequently, the right fr....
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....ing to Rs. 1,05,92,685/-, which includes the alleged suppressed turnover computed by the Assessing Officer amounting to Rs. 85,47,290/-. d) The learned CIT(A)-2, Panaji has overlooked the fact that, there was no material whatsoever at the time of issuance of warrant that the appellant was in possession of any money, bullion of valuables which represented any undisclosed income whether wholly or partly for the purposes of the income tax Act 1961 to warrant the issuance of the search warrant as the searches never revealed existence of any asset or valuables. Therefore, the search warrant issued to search and seizure in the premises of appellant's father was patently ultra vires the section 132 of the Act, 1961. e) The [earned CIT(A)-2, Panaji on the facts and circumstances of the case, has grossly ignored the fact that, there was no material whatsoever with the department to induce a belief that the criteria for issuance of warrant u/s. 132(1) existed. Consequently, the right from the issuance of warrant, till its execution, the search seizure activities were not in accordance with the law and hence no valid assessments u/s. 153A could be made and therefore cons....
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....(A)-2, Panaji has overlooked the fact that, there was no material whatsoever at the time of issuance of warrant that the appellant was in possession of any money, bullion of valuables which represented any undisclosed income whether wholly or partly for the purposes of the income tax Act 1961 to warrant the issuance of the search warrant as the searches never revealed existence of any asset or valuables. Therefore, the search warrant issued to search and seizure in the premises of appellant's father was patently ultra vires the section 132 of the Act, 1961. e) The learned CIT(A)-2, Panaji on the facts and circumstances of the case, has grossly ignored the fact that, there was no material whatsoever with the department to induce a belief that the criteria for issuance of warrant u/s. 132(1) existed. Consequently, the right from the issuance of warrant, till its execution, the search seizure activities were not in accordance with the law and hence no valid assessments u/s. 153A could be made and therefore consequently proceedings initiated u/s. 153A of the Act are against the law. f) The learned CIT(Appeals)-2, Panaji has failed to comprehend the fact that, the ....
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....ile in the case of supari business profits does not cross 2%. 4. The Appellant craves leave to add, amend or alter any of the forgoing grounds. 5. For these and any other grounds that may be urged before the Hon'ble IT AT, it is prayed that the Hon'ble ITAT may allow the appeal with cost. ITA No. 60/Bang/2020 1. The learned CIT(A)-2, Panaji erred in Passing the Order in the manner he did. 2. UNDISCLOSED PROFIT FROM INDORE BUSINESS OPERATIONS: a) The learned CIT(A)-2, Panaji on the facts and circumstances of the case, and in law, has erred in partly upholding the additions made by the Assessing Officer amounting to Rs. 96,43,429/-, as undisclosed profit from supari business operations from Nagpur, based on the piece of paper found during the course of search wherein certain figures were written, by overlooking the case laws relied on by the appellant. b) The learned CIT(A)-2, Panaji has based grossly ignored the fact that, the additions made by the Assessing Officer is based on data retrieved from the impounded materials, PC of the appellant's business premises at Nagpur, SMS in the cell phones of the employe....
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.... the case, and in law, erred in upholding the additions made by the Assessing Officer amounting to Rs. 20,79,353/- by stating that, no compelling evidence has been produced before him by overlooking the various case laws relied on by the Appellant, b) The learned CIT(A)-2, Panaji on the facts and in the circumstances of the case has failed to appreciate the fact that, the books of accounts of the appellant were seized at the time of search proceedings and all the sources of cash deposits were available with the assessing authority since those transactions were recorded in the books of accounts. Therefore assessing officer erred in law and on facts by making additions towards the cash deposits made to bank amounting to Rs. 20,79,353/- as unexplained money. c) The learned CIT(A)-2, Panaji on the facts and in the circumstances of the case has grossly ignored that, the entire cash deposits of the year may not be the turnover of particular year, it may contains cash receipts from the credits sales of the earlier years also as well as some are contra entries in the bank pass book (cash deposits and cash withdrawal) d) The learned CIT(A)-2, Panaji on the facts a....
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....r partly for the purposes of the income tax Act 1961 to warrant the issuance of the search warrant as the searches never revealed existence of any asset or valuables. Therefore, the search warrant issued to search and seizure in the premises of appellant's father was patently ultra vires the section 132 of the Act, 1961. e) The learned CIT(A)-2, Panaji on the facts and circumstances of the case, has grossly ignored the fact that, there was no material whatsoever with the department to induce a belief that the criteria for issuance of warrant u/s. 132(1) existed. Consequently, the right from the issuance of warrant, till its execution, the search seizure activities were not in accordance with the law and hence no valid assessments u/s. 153A could be made and therefore consequently proceedings initiated u/s. 153 A of the Act are against the law. f) The learned CIT(Appeals)-2, Panaji has failed to comprehend the fact that, the evidences unearthed were loose sheets and digital evidences which has got no evidentiary value and legally inadmissible under Section 34 of the Indian Evidence Act as held by the Supreme Court in the case of Common Cause (A Registered Socie....
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....t is prayed that the Hon'ble ITAT may allow the appeal with cost. 2. At the very outset, it was submitted by learned AR of the assessee that in para 5.8 of his order passed by learned CIT(A) in Assessment Year 2010-11, this is the finding of learned CIT(A) that AO can make assessment under section 153A only in the case which is pending for regular assessment under section 143 but in the assessee's case as submitted by learned AR of the assessee in letter dated 14.10.2019, order under section 143(1) stood completed and therefore, the assessee's case squarely falls outside the purview of section 153A and he has further noted that no new material was found or unearthed during the course of search and therefore, various judicial pronouncements noted by learned CIT(A) in para 5.7 of his order are squarely applicable to the assessee's case but in spite of this decision in para 6 of his order, it is held by learned CIT(A) that the appeal of the assessee is partly allowed. He submitted that the order of CIT(A) in this para has attained finality as no appeal is filed by the revenue. He further submitted that in a similar case i.e. in the case of the husband of the assesse....
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....n it is very clear that, AO can make assessment u/s. 153A only in the case, which is pending for regular assessment u/s. 143. In the appellant's case as stated in AR's letter dated 14.10.2019 order under section 143(1) stood completed. Therefore, appellant's case squarely falls outside the purview of section 153A. Further, no new materials were found or unearthed during the course of search. Therefore, the above decisions are squarely applicable to the appellant's case." 4. Now we reproduce para 6 from the order of CIT(A) for Assessment Year 2011-12, which reads as under: "6. I have gone through the above, in the said section it is very clear that, AO can make assessment u/s. 153A only in the case, which is pending for regular assessment u/s. 143. In the appellant's case as stated in AR's letter dated 14.10.2019 order under section 143(1) stood completed. Therefore, appellant's case squarely falls outside the purview of section 153A. Further, no new materials were found or unearthed during the course of search. Therefore, the above decisions are squarely applicable to the appellant's case." 5. Now we reproduce para 5 from page 14 of th....
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....d by any evidence of comparable cases while in the case of supari business, profits are not above 2%. Regarding this issue, it is submitted by learned AR of the assessee that on this issue also, the same Tribunal order is relevant and our attention was drawn to para 20 on pages 27 and 28 of this Tribunal order and it was pointed out that in that case also, the Tribunal has held that the income from supari business should be assessed by adopting the profit rate at 2% and the same will meet hands of justice. He submitted that in the present case also, the issue is to be decided on similar line. It was submitted by learned AR of the assessee that there is no other issue on merit in this year and regarding various other issues raised by the assessee as per ground Nos. 2a to 2f, no arguments were raised by learned AR of the assessee and therefore, we infer that these grounds are not pressed and these grounds are rejected as not pressed. 9. Now we decide ground No. 2(g) and in this regard, we reproduce para 20 from pages 27 and 28 of the Tribunal order rendered in the case of Mr. M.A. Siddique Vs. DCIT (supra). This para reads as under: "20. In this year also, three issues ar....
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....enue could not point out any difference in facts in the present case and in that case. In para 5.2.8 of his order, it is noted by learned CIT(A) that the AO has taken the profit percentage at 12% but he has held that in such a business, the normal profit percentage is 2 - 3% and he held that the ends of justice would be met if profit percentage is computed at 4% as in unaccounted transaction, the profit would be more as government taxes and levies are not paid and on this basis, he sustained the profit to the extent of 4% instead of 12%. In the case of Mr. M.A. Siddique Vs. DCIT (supra), the facts are similar as noted by the Tribunal in para 20 reproduced above and respectfully following the same, we hold that in the present case also, for Assessment Year 2012-13, profit from arecanut business should be computed by applying profit rate of 2% and this will meet the ends of justice in the facts of the present case. This ground is partly allowed. 11. In the result, the appeals of the assessee for Assessment Years 2012-13 is partly allowed. 12. Now we take up the appeal of the assessee for Assessment Year 2013-14. In this year also, although various grounds are raised by the asse....
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....g these grounds and hence, it is inferred that these grounds are not pressed and dismissed as not pressed. As per ground No. 2 (g) in this year also, the issue raised by the assessee is same that the income from arecanut business has been computed at 2% as against 12% by AO and 4% by learned CIT(A). In line with our decision in Assessment Years 2010-11 and 2011-12 as per paras above, this year also we direct the AO to compute income from arecanut business @ 2% of turnover instead of 12% by AO and 4% by CIT(A). Ground No. 2 (g) is partly allowed. 17. As per ground No. 3 raised by the assessee in this year, the issue raised by the assessee is regarding addition made by the AO and confirmed by learned CIT(A) of Rs. 20,79,353/- on account of alleged cash deposits in bank accounts. Regarding this issue, it is submitted by learned AR of the assessee that this issue is also covered by the same Tribunal order rendered in the case of Mr. M.A. Siddique Vs. DCIT (supra) and our attention was drawn to Paras 15 to 17 of this Tribunal order on pages 23 to 26 of this Tribunal order. He also submitted that this issue is also decided by the AO on pages 43 and 44 of the Assessment Order for Asses....
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....r considered opinion, the basis adopted by the AO to make this addition is not a valid basis. This is also the claim of the assessee that all the entries in the various bank accounts AO that a particular bank account.is not appearing in the books of the assessee or that some specific entries of the declared bank accounts is not appearing in the books of the assessee. If all the bank accounts of the assessee opened with original PAN or duplicate PAN are appearing in the books and all entries in such hank account is appearing in the books, it cannot be said that there is any unexplained deposit in bank merely for this reason that it exceeds the declared turnover. Learned CIT(A) has very correctly observed that the entire cash deposit of the year may not be the turnover of the particular year and he also observed very correctly that it may contain cash receipts from the credit sales of the earlier years, contra entries, loans and advances etc. But after making these correct observations, he jumped to this incorrect conclusion that the assessee has failed to lead any evidence in this regard before him or before the AO and therefore, He has no option but to confirm this addition. In our....
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....ire cash deposit of that year may not be only out of the turnover of the particular year and it was also observed by learned CIT(A) in that case that it may contain cash receipts from the credit sales of the earlier years, contra entries, loans and advances, etc., and ultimately, the Tribunal held in that case that there is no valid basis of this allegation of the AO that there is unaccounted cash income simply on this basis that deposits in bank accounts exceeded the declared turnover and this addition was deleted by the Tribunal. In the present case also, this is not the allegation of the AO that any bank account is unaccounted or that any deposit entry of such declared bank account is not accounted for in the books of assessee. Learned DR of the Revenue also could not point out any difference in facts in present case and in that case and hence, respectfully following this Tribunal order, we hold that in the present case also, there is valid basis of this allegation of the AO that there is unaccounted cash income simply on this basis that deposits in bank account exceeds the declared turnover and therefore, we delete this addition. Ground No. 3 of the assessee's appeal for As....