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2021 (9) TMI 445
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...., the contents of the affidavit should have been accepted. 3. That the assessment completed in the hands of the assessee is not justified because the amount belongs to M/s Lux Industries Limited as admitted by the Director of the company. Therefore, the assessment is illegal. 4. That the statement of Mr. Bhaskar Poddar which was the basis of sustaining the addition, was no statement in the eye of law in view of the judgment of Hon'ble Rajasthan High Court. 5. That the order passed by the Commissioner of Income Tax (Appeals) is against judicial decorum and judicial discipline because the judgment having the character of binding nature and not followed by the Commissioner of Income Tax (Appeals). 6. That the charging of interest is illegal and against the law." 2. The hearing of the appeal was concluded through video conference in view of the prevailing situation of Covid-19 Pandemic. 3. The brief facts of the case are that the assessee is an individual and derived income from commission received as agent of M/s Lux Industries Ltd., Kolkata which was shown under the head business income, besides petty interest received from banks. The assesse....
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....belongs to company and not Ashok Banthia. Furthermore in response to the query of Commissioner of Income Tax (Appeals) dated 25.05.2017 and 18.08.2017 also submitted the following paper book page 51 to 73 Extract of the cash book with certificate of CA 67 to 73 P.B. Calculation of the VAT for the month of April 2011 65 of P.B. Extract of Sales Register for the period April 2011 56 to 61 of P.B. Challan of VAT (Proof of Payment of VAT) 62 P.B. Air Ticket provided by Kolkata office 63 & 64 P.B. In this way the assessee submitted evidence and discharge the Burden and shifted upon the department. Therefore the addition made and sustained by the CIT (A) is illegal and in these circumstances the addition sustain by the Commissioner of Income Tax (Appeals) is illegal and against the law. Accepted by Sales Tax Department It will be worthwhile to submit that the sales tax authority accepted the sale belongs to Lux Industries Limited in case which calculation is given in the above. In this respect your kind attention is invited to words the judgment reported in 273 ITR 262 in which it was held that if the sales tax department ....
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.... way of summon in which contention of the affidavit was accepted by him. But Ashok Kumar Bhatia of them was not cross examined by the assessing officer. There is a law of land delivered in case of Mehta Parekh and Company reported in 30 'TR Page 181 in case of Mehta Parekh and Company. The ratio of judgment is applicable in toto. It will be worthwhile to submit that the Honorable Tribunal of this bench is also following the ratio laid down in this judicial pronouncement for your ready reference the part of the ratio reported in 36 TTJ page 1 delivered in case of Dr Prakash Rakhi is reproduced here under full stop The relevant portion of case referred in 36 TTJ 1 is under;- Whether averments of a duly sworn in affidavit are to be accepted as correct unless the same are rebutted by evidence? Held Yes In view of above facts and circumstances you will observe that the act of the assessing officer is legal and the Commissioner of Income Tax (Appeals) fails to follow the judicial pronouncement having character of binding nature as per Article 141 of Constitution of India. You are requested that the act of the Commissioner of Income Tax (Appeals) ma....
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....g to Lux Industries Limited and not Ashok Banthia. Sh. Bhaskar Poddar also stated that the amount belongs to Lux Industries Limited in his statement dated 07.06.2011. The statement of Bhaskar Poddar is also establishing that the amount belongs to Lux Industries Limited. The relevant portion is also reproduced. The A.O. has also taken the shelter of the statement of Sh. Bhaskar Poddar. This is not correct. I want to draw your attention towards the statement of Ashok Toddi, the question No. 8, 9 are being reproduced hereunder: Q. No. 8 Please state how you know Mr. Bhaskar Poddar, S/o Shri Ravi Poddar. Ans. Mr. Bhaskar Poddar is working as an Accountant with M/s Lux Industries Ltd. in Delhi Office. Q. No. 9 Mr. Bhaskar Poddar in his statement recorded by the Investigation Wing, New Delhi on 07.06.2011 has stated as follows :- (i) Normally the sales are made to the Distributors of the company. However, the cash sales have been made to other persons, the details of which are not available. (ii) I don't know whether the cash sales were actually made or not. These invoices have been prepared at the instruction of Shri Ash....
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....nd should not be taxed in the hands of the assessee. It is therefore requested that same make kindly be deleted and may kindly be declared as belongs to the Lux Industries Limited Industries Limited. The statement of the Shri Bhaskar Poddar Shri Ashok Banthia was recorded and copies thereof are available at page 1 to 5 of paper book. The statement of Shri Bhaskar Podar was relied upon by the assessing officer as well as Commissioner of Income Tax (Appeals). The statement of Shri Bhaskar Poddar so recorded is at page number 3-5 and Shri Ashok Banthia 1-2 of the paper book. From the perusal of the copy of his statement so provided by the department to the assessee, you will observe that the statement is not having the word read over and accepted (RO& AC) in the bottom of the statement written by the respective officer during the course of recording the statement AND WITHOUT ADMINISTARING THE OATH. As far as the legal position is concerned it will be worthwhile to submit here that the statements are no statement in the eye of law in view of judgment of Rajasthan High Court as well as ITAT Jodhpur. He relied on the decision in the case of Kewal Ram Suman Mal Govinda r....
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....ppeals). The Commissioner of Income Tax (Appeals) is supposed to follow the judicial pronouncement in this respect. THE ORDER PASSED MAY KINDLY BE DECLARED AGAINST THE JUDICIAL DECORAM AND DISCIPLINE. He relied on the decision in the case of Union of India Vs M/s Kamalaxmi Finance Corporation Ltd, 72 Taxman-Magazine page 43. Avon Apparels Vs ITO 22 Taxworld 399 As such you will observe that the order of tribunal is having the binding nature, as far as the judgment of Supreme Court is concern, same is binding as per Article 141 of Constitution of India. Besides this there are also various judicial pronouncement wherein it was held that the judgment of Jurisdictional High Court is binding and as far as the judgment of Supreme Court is concern same is binding even as per Constitution of India . In view of fact and circumstances you will observe that the rejection of appeal is for the sake of rejection by flouting the judgment of binding nature. You're requested that the addition sustained amounting to rupees 25 lacs may kindly be declared as in legal and order passed make kindly quest. The judgment on which the department relie....
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....sal of the record, we observed that, the assessee is a commission agent of Lux Industries Ltd. and as per the prevalent law, the real owner should have been taxed and not the representative thereof. The assessee is only a representative of the Lux Company. The assessee in his statement recorded U/s 132(4) of the Act has specifically stated that the amount seized from him at the Air Port belongs to Lux Industries Limited. Statement of Director of the company namely Shri Ashok Kumar Todi was also recorded, which are available at page No. 10 to 13 of the paper book in which he had specifically admitted that the amount seized pertains to sale proceeds of a particular lot of T-shirts of Kolkata Knight Riders sold in Delhi and since the goods originally belonged to Kolkata and there was requirement of cash in Kolkata. Therefore, Mr. Ashok Banthia was directed to bring the cash to Kolkata. As far as in the affidavit of Shri Ashok Todi, Director of Lux Industries Limited is concerned, in the said affidavit, it has been accepted that money belongs to the company and Shri Ashok Banthia was only courier of money and following the instruction of the company bringing the money from Delhi to Kol....
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....d choose method should be adopted which favours the revenue. The statement of Sh. Bhaskar Poddar is on the record which specifically depicts that the assessee Ashok Kr. Banthia was working as a Regional Sales Officer of M/s Lux Industries Ltd. and he was handing all the cash transactions of the company. It is undisputed fact that the assessee was posted for the Delhi region and was looking after sales and cash collection of the entire region on behalf of the company. It is also an admitted fact that the affidavit filed by Shri Ashok Todi, which is at page No. 13 of the paper book who was director of M/s Lux Industries Ltd. had categorically admitted that on 19/04/2011, the assessee was carrying amount of Rs. 25.00 lacs in cash on behalf of the company from Delhi office to its head office at Kolkata. The said statement of Shri Ashok Todi, director of M/s Lux Industries Ltd. was never cross examined by the A.O.. Apart from this, the A.O. also did not collect any other material to show that the contents contained in the affidavit was not correct. The A.O., merely rejected the affidavit of Shri Ashok Todi who was director of M/s Lux Industries Ltd. without any plausible reason. The A.O....