AI OCR 
TaxTMI 
TaxTMI 
TaxTMI 
2022 (6) TMI 769
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....dated: 07.12.2012. Consequent to the search a Notice u/s 153A was issued on 28.01.2014 requiring the Assessee to file his return of income for the A Y's 2008-09 to 2012-13. In response to the notice u/s. 153A of the Act the Assessee filed his returns & assessments were duly completed thereafter with certain additions being made to the Income Returned for the impugned assessment years. ITA No.1494/Bang/2018 (AY 2009-10) 3. The assessee has raised the following grounds of appeal:- "1. The order of the learned CIT [Appeals] Bengaluru-11, Bengaluru in as much as it is against the appellant is opposed to law, equity, weight of evidence, probabilities, facts of and the circumstances in the Appellant's case. 2. The appellant denies himself liable to be assessed on a total income of Rs. 1,49,53,420/- as confirmed by the learned CIT (Appeals), as against the total income declared by the appellant of Rs. 25,45,420/- on the facts and in the circumstances of the Appellants case. 3. The learned CIT [Appeals] is not justified in confirming the additions made by the learned A.O amounting to Rs. 61,08,000/- being the alleged undisclosed investments made in land under the facts and in ....
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....ective additions made by the A.O amounting to Rs. 7,88,909/- based on estimation of income on a substantive basis on the facts and in the circumstances of the Appellants case. 4. The learned CIT (Appeals) is not justified in confirming the additions made by the learned A.O amounting to Rs.7,50,000/- being the income arising from the alleged undisclosed sale of property under the fact and in the circumstances of the Appellant's case. 5. The learned CIT (Appeals) in not justified in confirming the erroneous additions made by the A.O of Rs. 40,75,000/- being the alleged undisclosed investment made in land under the facts and in the circumstances of the Appellant's case. 6. The Appellant denies himself liable to be charged interest under sections 234 A, 234 B and 234 C of the I.T. Act 1961 under the facts and in the circumstances of the Appellant's case. Further the levy of interest under sections 234 A, 234 B and 234 C of the Act is also bad in law as the period, rate, quantum and method of calculation adopted on which interest is levied are all not discernible and are wrong on the facts and in the circumstances of the Appellant's case. 7. The appellant craves ....
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....Bang/2018 (AY 2012-13) 18. The assessee has raised the following grounds:- 1. The order of the learned CIT [Appeals] Bengaluru -11, Bengaluru in as much as it is against the appellant is opposed to law, equity, probabilities, weight of evidence, facts of and the circumstances in the Appellant's case. 2. The appellant denies himself liable to be assessed on a total income of Rs.3,40,23,811/- as confirmed by the learned CIT (Appeals), as against the total income declared by the appellant of Rs. 2,94,32,720/- on the facts and circumstances of the case. 3. The learned CIT [Appeals] is not justified in confirming the additions made by the learned A.O amounting to Rs.24,09,135/- being the alleged investment made in the name of the spouse under the facts and in the circumstances of the Appellant's case on the facts and in the circumstances of the Appellants case. 4. The learned CIT [Appeals] is not justified in confirming the addition made by the learned A.O amounting 20,56,458/- based on estimate of income on a substantive basis on the facts and in the circumstances of the Appellants case. 5. The learned CIT [Appeals] is not justified in bringing to tax a sum of Rs.1,....
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....equential and mandatory in nature. 24. In the result, ITA No.1497/Bang/2018 is dismissed. REVENUE'S APPEALS ITA No.309/Bang/2018 (AY 2008-09) 25. The revenue has raised the following legal ground:- "1. Whether on the facts and the circumstances of the case, the Ld. CIT(A) is correct in accepting the ground of validity of digital evidence based on VC Shukla case rendered in 1998 however, the same has been overridden by provision of Information Technology Act 2000 and Section 2(22AA) of the I.T. Act and Section 292C of the IT Act. 26. We have heard both the parties on the issue. The main grievance of the ld. DR is that the CIT(A) overlooked the digital evidence procured during the course of search action and evidence itself shows the various incriminating transactions carried out by the assessee and same is the basis for addition and addition cannot be deleted on the reason that there is no evidence. The further contention is that section 292C creates a deeming presumption that any books of account, other documents, money, bullion, jewellery or other value articles or things are found in the possession and control of any person in the course of search action u/s. 132 or u/s.....
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....tectively in the hands of this assessee. The AO is not justified in bringing to tax the alleged undisclosed investment in site at Ramanahalli in the hands of the assessee under the facts and in the circumstances of the case more so when it is an undisputed fact that the alleged impugned investment is not owned by him. (ii) The AO has made addition based on the contents of a CD seized during search proceedings conducted on 8th of June 2012 at the residence owned by Smt. Pallavi Ravi. The Assessee submits that the data in the said CD is not pertaining to him. Further there is no evidence which corroborates the veracity of the data found in the search. This addition, which is made based upon a dumb data, without any corroborative evidence, cannot stand the scrutiny of law & the CIT (A) has rightly deleted the addition made on this count in such of those assessment years in which the same was made. (iii) A prima-facie look at the data allegedly retrieved from the impugned CD clearly shows that the transactions mentioned therein are not belonging to any individual or business entity and it appears as though they are belonging to a political outfit or organization. The origin of this....
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....o deposit cash to bank account. In our opinion, on the basis of gross receipt, the addition cannot be deleted and he must have seen the cash/fund flow statement of assessee for the relevant financial year before deleting the addition and accordingly we remit this issue to the file of AO with a direction to the assessee to explain the cash deposits in the bank account by producing the complete cash flow statement / fund flow statement for the relevant financial year. On that basis, the AO has to decide the issue afresh. 37. For A.Y. 2009-10 addition of Rs. 74,59,500/-: In this assessment year also, there is an addition on account of cash deposits into bank account. The ld.DR relied on the order of AO and prayed that issue may be remitted to the AO for fresh consideration. The ld. AR submitted as follows:- (i) The CIT (A) has given a clear finding that as stated in the return of Income and accepted by the AO in the assessment order, the Assessee has net agricultural Income of 7,75,000/- and gross agricultural receipts received in cash would be at least Rs. 38,75,000/-, apart from contract receipts received in cash to the extent of Rs. 1,05,07,277/- and JCB Hire Charges received in....
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....d parties. These are sufficient to explain the cash deposit of Rs. 3,30,99,500/-. (ii) The CIT A has rightly deleted this addition based on undisputed facts. 42. We have heard both the parties. As discussed in AY 2008-09, this issue is remitted to the AO to examine the cash flow statement for the relevant financial year. 43. For AY 2012-13 addition of Rs.82,64,280/-: : In this assessment year also, there is an addition on account of cash deposits into bank account. The ld.DR relied on the order of AO and prayed that issue may be remitted to the AO for fresh consideration. The ld. AR submitted as follows:- (i) The CIT A has given a clear finding that as stated in the return of Income and accepted by the AO in the assessment order, the Assessee has contract receipts of Rs.13,93,06,045/- in cash. The Assessee has sale of Jelly to the extent of Rs. 7,38,07,216/- to third parties. These are sufficient to explain the cash deposit of Rs. 82,64,280/-. (ii) Further, the Assessee has also earned income of Rs. 90,00,000/- from property dealings which he has offered to tax. (iii) These are sufficient to explain the cash deposit of Rs. 82,64,280/-. (iv) The CIT A has rightly deleted....
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....ese receipts are to be dealt with. In view of this serious limitation, the receipts will not become his income. 50. In view of the above submissions, the CIT(A) held that, it is a fact that the Assessee has not contested in any Election. There is no evidence to show that the impugned election receipts are received by the Assessee. It is no doubt true that the Assessee is closely related to Sri. C.T. Ravi, the Sitting MLA who contested the elections. The data may be pertaining to the said C.T. Ravi. The mere fact that the data retrieved from the residence of the Assessee cannot be the sole criteria for making the addition in the hands of the Assessee, more so when the residence is actually owned by Smt. Pallavi Ravi, wife of C.T. Ravi. There is no evidence at all to hold that amounts are received by the Assessee or that it is Undisclosed Income of the Assessee. 51. Further, it is apparent from the seized documents, that most of the receipts and payments do not pertain to the Assessee but others, who are either known to or related to Assessee and the AO proceeded to treated the same received by the Assessee which warrants further investigation in as much as they constitute prima fa....
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....ts were not received from people having business dealing with the persons, but may be officials, political persons etc." 56. Thus on the basis of seized material, the very additions are made on this count in these assessment years. 57. The objection of the ld. DR is that the CIT(A) ought to have sustained the assessment order which are based on seized material. 58. The ld. AR submitted as follows:- (i) The AO is not justified in bringing to tax the alleged unexplained miscellaneous Receipts as mentioned below for the assessment years 2008-09 & 2009-10, which are not exigible to income-tax under the facts and in the circumstances of the Assessee's case. AY Receipts (Rs. 2008-09 1,08,26,400 2009-10 1,75,00,000 Total 2,83,26,400 (ii) In this regard, it is stated that the AO has made addition based on the alleged contents of a CD seized in the residence owned by Smt. Pallavi Ravi, during search proceedings conducted on 8th of June 2012. The Assessee states that the data allegedly found in said CD is not pertaining to him. The receipts and the payments mentioned therein are not belonging to him. (iii) A prima-facie look at the data allegedly retrieved from the impugned ....
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.... retrieved indicates that that the receipts mentioned therein to the extent of RS. 1,08,26,400 for AY 2008-09 & Rs.1 75,00,000/- for AY 2009-10 and income, if any, arising out of the same belong to a Partnership Firm called RN Developers which had two persons namely C.T. Ravi and Nagesh as its partners. The assessee is in no way connected to this partnership firm or its business. (viii) The contention of the Assessee that a Receipt becomes the Income of the recipient only when the recipient has right of ownership over the said receipt and the right to deal with the same in any manner he so likes and not in any other case is not only logical but also legally correct. In other words, it is only the Real Income of a person that can be taxed. Real income postulates right of ownership as well as right of disposal. In the present case, there is no evidence to show that the Assessee received the monies, much less having Right of Ownership and Right of Disposal over the same. 59. Accordingly, the CIT(A)in view of these circumstances and respectfully following the decision of the Apex Court in the VC Shukla case, deleted the addition made on this count. 60. We have heard both the partie....
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....ant employs the local laborers for cutting, loading and carting purposes to whom on the spot payment in cash is made. And further he engages the transporter available on hand locally and makes the payment in cash. (iv) Therefore, in view of this it is not possible or feasible for the Assessee to maintain regular books of accounts in this regard. It should be noted that the Assessee has offered a sum of Rs. 7,54,657/-, by way of profit to tax which is reasonable in this line of business. (v) Therefore, in view of the above it is stated that the AO is not justified in disallowing the entire expenditure claimed of Rs.83,95,493/-, u/s 57 in the circumstances of the Assessee's case. (vi) Further the AO is not justified in holding that the Assessee has made a profit of the entire sum of Rs. 97,85,000/- (i.e. the total turnover itself) in his business of timber which is without any basis and only a hypothesis, conjecture and surmise. (vii) The CIT A has rightly decided this issue in favour of the Assessee. 64. We have heard both the parties on the issue. The CIT(A) estimated income @ 20% of the gross turnover which itself is very high as compared to the nature of business carried....
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.... assessee has to prove the ownership of JCB by producing valid invoices which he failed to do so, hence addition to be sustained. 70. The ld. AR submitted as follows:- (i) The AO is not justified in disallowing the depreciation claimed by the Assessee for the following Assessment years which is not disallowable under the facts and in the circumstances of the Assessee's case. AY Amount 2008-09 6,37,500 2009-10 11,57,798 2010-11 21,82,139 2011-12 64,11,813 2012-13 45,08,714 Total 1,48,97,964 (ii) It is submitted that the Assessee has made an additions to the Fixed Assets and has claimed depreciation thereon and the bills and invoices in this regard were produced before the AO during the assessment proceedings. But the AO has ignored the same and has erroneously made the addition thereof. (iii) The CIT(A) has in the appellate proceedings, verified the bills of purchase and deleted the above additions as not warranted. (iv) Further the CIT A also upheld the contention of the assessee, that once income is determined as a percentage of turnover and in view of the additions made the rate of 8% of the business receipts, the question of disallowance of depreciatio....
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....n Nazeeruddin for Rs.7,50,000/- and has brought the entire sale consideration to tax as income from the sale. The Assessee has denied any knowledge of this transaction and is at a loss to understand how this addition is made. The AO has purportedly relied upon a registered sale deed dated 11/08/2009 in support of his addition. The same has however not been made available to the Assessee for his comments /rebuttal, which is opposed to principles of natural justice. (ii) The CIT(A) has erroneously held that, that apart from merely denying the transaction the Assessee has not done anything else to disprove the Sale Deed & thus proceeds to confirm the addition made by the AO. The Assessee submits that, when the Assessee has entered into transaction and the document of sale is not made available to the Assessee, the question of disproving the transaction does not arise. 76. We have heard both the parties and perused the record. In this case, the CIT(A) only remitted the issue to AO for fresh consideration, though he has no power to remit the issue to the AO for fresh consideration. In our opinion, the issue has to be examined at the end of the AO. As such, he should have called for t....
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....e extent not considered as hitherto disclosed i.e., 45,00,000/- is available for telescoping and will therefore reduce the unexplained investment made herein to that extent. He therefore restricted the addition by way of Unexplained Investments to Rs. Rs.16,08,000/- and delete the balance addition of Rs.45,00,000/-. (vii) In view of the fact that, he was not given an opportunity of cross examining the witnesses, which is in grave violation of principles of natural justice, the Assessee submits that the addition itself needs to be deleted. 80. We have heard both the parties and perused the record. In our opinion, on the basis of gross receipt from sale of agricultural land, the addition cannot be deleted and he must have seen the cash/fund flow statement of assessee for the relevant financial year before deleting the addition and accordingly we remit this issue to the file of AO with a direction to the assessee to explain the payment of sale proceeds to various parties by producing the complete cash flow statement / fund flow statement for the relevant financial year. On that basis, the AO has to decide the issue afresh. 81. For AY 2010-11 : The AO made addition towards investme....
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....he ld. AR submitted as follows:- (i) It is submitted that the AO is not justified in making the impugned addition on account of unsubstantiated liability of Rs. 11,50,000/- being the difference in the balance outstanding in the name of M/s. Conc Shade Constructions Pvt. Ltd., in the Assessee's books of account as on 31.3.2009 since the difference in balance between the books of the Assessee and the Conc Shade Constructions Pvt. Ltd., is on account of omission in the books of accounts of M/s Conc Shade Constructions Pvt. Ltd., in making certain entries therein by the concerned employee. (ii) The CIT(A) has confirmed the addition for the reason that the said amount of rs.1,15,000/- is not reflected in the financials filed by M/s Conc shade Constructions. 88. We have heard both the parties on the issue. In our opinion, the assessee has to reconcile the assessee account with Conc Shade Constructions P. Ltd. Accordingly the issue is remitted to the AO for fresh consideration. Undisclosed investment Residential house in Basavanahalli (AY 2010-11 to 2012-13) 89. The AO based on seized material made these additions in 3 AYs for Rs.3,26,05,531. The CIT(A) deleted the addition by obs....
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..... The CIT(A) deleted addition in wholesome manner by passing cryptic order without going through the actual seized material. In our opinion, the issue to be examined by AO by co-relating the seized material to the investment made by the assessee in the residential house in Basavanahalli. Accordingly, in all these 3 AYs, the issue is remitted to the AO for fresh consideration. THE ISSUE OF ALLEGED INCOME OF RS.3,12,84,946/- ARISING OUT OF THE UNDISCLOSED SALE OF THE STONE CRUSHER UNIT AND HOT MIX UNIT FOR THE AY 2011-12. 93. The assessee declared total turnover of the stone crusher at Rs.3,68,40,668 and declared a net profit of Rs.31,12,980. The AO has suspected that actual turnover is Rs.7,81,77,105 as against declared turnover by assessee. The AO estimated profit at 44% and computed net profit at Rs.3,43,97,926 and reduced the amount of Rs.31,12,980 returned by the assessee and made net addition of Rs.3,12,84,946. However, CIT(A) deleted addition on the reason that there is no concrete proof of undisclosed turnover disclosed during search. The entire estimate is based on daily movement register which is a record of movement of tar mixed jelly and pure jelly. Tar mixed jelly is ....
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....to the sale of Rs. 7,81,77,105/- carried on by Shree Deveeramma Stone Crushers during the financial year 2010-11 pertaining to the Assessment year 2011-12, based on the digital data that was seized during a survey operation conducted in the premises of crusher unit on 08.06.2012. (vi) In this regard it is stated that the digital data that was found at the stone crusher premises is not the books of Account maintained by the Assessee with regard to his stone crushing business. A prima facie look, at the impugned digital data reveals that it is not any accounting data but was only the data of movement of tar mixed jelly and unmixed jelly from the crusher unit to the spot where the asphalting was carried out. The data was recorded by the in-charge at the crushing unit just in order to have control over the quantum of stock of jelly and the tar used for mixing with jelly. It should be noted here that he is not a trained Accountant and further one simply cannot maintain books of Account in a jelly crushing unit which is about 20 Kms away from the town of Chikmagalur. Further it is a known fact that the accounts are generally maintained at the administrative office of a business. Tar is....
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....ely assumed that the plant is capable of running at the capacity of only about 70% ie.,0.7 X 365 (Days) X 25 (tones) X 16 (Hours) X 425 (Rs.) = 4,34,35,000/- during the FY 2010-11 the plant worked only for the 10 Months Rs.4,34,35,000 X 10 = 3,61,95,850/- 12 (xiv) It needs to be noted that the Assessee has shown a sale of Rs.3,68,40,668/- which is higher than the probable sale of Rs.3,61,95,850/- as arrived above. (xv) Another important point for consideration is that M/s Conc Shade Constructions has in its Profit & Loss account accounted Purchase of Jelly to the extent of Rs 96,52,500/- for the y.e 31/03/2011 which is also the sale reflected in the books of the stone crusher unit maintained by the Assessee. In the event the sale as perceived by the AO is adopted then the purchase in the hands of Conc Shade Constructions should also go up. In a way, suppression of turnover, if any, is revenue neutral as the same is not treated as expenditure in the hands of the buyer, a company in which the Assessee is substantially interested. (xvi) Therefore, it is evident under the facts and circumstances of the Assessees case it was not possible for him to have made a....
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....t relating to his business and it is disclosed in the books of accounts of sister concern. Thereafter the AO has to decide the issue accordingly. Profits from contract receipts of Rs. 11,16,614/- for the AY 2011-12 & RS. 20,56,458/- for AY 2012-13: 97. The AO mentioned in his order that assessee did not produce books of account and relevant vouchers in support of income declared from his contract business. Hence he estimated income from contract business @ 8% of turnover and made addition on this count. The CIT(A) observed that addition of 8% is unreasonable and this addition by way of estimation of income was done protectively by AO in view of his disallowing depreciation and unexplained liabilities which is not proper and he should have been the other way around with income being estimated substantively and depreciation and other liabilities disallowed on a protective basis. He however confirmed the addition based on estimation of income on substantive basis. 98. The ld.DR submitted that CIT(A) is not correct in allowing depreciation on the ground that income has been estimated though ownership of assets not proved. 99. The ld. AR submitted as follows:- (i) The Assessee ha....
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....ities to be substantiated. 103. The ld. AR submitted as follows:- (i) The AO on going through the Balance sheet of the Assessee as on 31/03/2011, has added the entire amount of Current liabilities as on 31/03/2011 of Rs. 2,36,20,498/- holding the same to be unsubstantiated for want of confirmations from the concerned creditors. (ii) The Assessee submits that the table given below gives the breakup of the current liabilities payable as on 31.03.2011 and the particulars thereof. It needs to be borne in mind that out of the outstanding balance the sum of Rs. 72,86,970/- (Rs. 88,86,970 - Rs. 16,00,000) is opening balance which does not pertain to the impugned Assessment Year. The Assessee also states that each of the balance outstanding is pertaining to the Assessees regular business, genuine and capable of being confirmed. (iii) Be it as it may In view of the fact that the CIT(A) upheld the determination of income @ 8% of the total turnover, he deleted this addition on the ground that when the books are rejected & income is estimated as a percentage of turnover, no addition can be made by holding certain liabilities as unexplained. The decision of the CIT A is in consonance wit....
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....port of the same. Further in view of the fact that he had confirmed the addition made to Income from business @ 8% of turnover on a substantive basis, the CIT(A) deleted this addition on this count too. 110. The ld. DR relied on the order of AO. 111. The ld. AR submitted that it is not clear from the excel sheet itself as to what those amounts represent. There are no details as to purpose of the amounts mentioned therein. No enquiry is made about these transactions. 112. We have heard both the parties. The addition is deleted by CIT(A) there is no corroborative evidence to support the addition. However, this finding is not based on the examination of the seized material. The AO has to examine the parties concerned and confront the same to the assessee. Thereafter he shall decide the issue afresh in accordance with law. Accordingly the issue is remitted to AO for fresh consideration. CASH DEPOSITS IN THE NAME OF BENAMIS' OF RS. 2,91,10,520/- FOR AY 2012-13 113. The AO based on post search enquiries in the case of the Assessee, has made an addition of Rs. 2,91,10,520/- which represents cash deposits made in the account bearing No.91120057423983 with M/s Axis Bank Ltd, Chikamaga....
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....rded documents (ii) The form No. 16A issued by the various customers of the Assessee in respect of the works contract carried on by him during the F.Y. 2011-12 pertaining to the A.Y. 2012-13. (iii) On the basis of the acknowledgement given by the customers of the Assessee in respect of the Vat deducted at source (Form No. 156) for the F.Y. 2011-12. (iv) The various bank statements of the Assessee for the F.Y. 2011-12. 119. The ld. AR further stated as follows:0 (i) The Assessee states that the difference between the figures as evidenced by the hard copy of the Form No. 16A issued by the customers of the Assessee & the Form No. 26AS is an account of the late uploading of details by officials of the Public Works Department of the State Government and the Assessee not being aware of the same at the time of filing return of income. (ii) Without Prejudice, the AO has erred in bringing the entire difference to tax and should have restricted the addition to 8% of the difference amount of Rs.15,68,725/- as he himself does so in taxing the contract receipt as per books of Rs.13,93,06,045/- in making the assessment order. Further the Assessee has made a short claim of credit of TD....
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....r fresh consideration. UNDISCLOSED INVESTMENTS IN LAND IN THE NAME OF SPOUSE OF RS. 24,09,135/- FOR AY 2012-13 124. The AO based on certain materials alleged to have been seized during the course of search (A/HBS/10, Pages 20 to 23) has concluded that the actual consideration paid is Rs.29,00,000/- and thus made the addition of a sum of Rs. 24,09,135/- to the income of the Assessee by way of undisclosed investments. 125. The ld. AR submitted that the investments in question are fully accounted by the Assessee in his books of Accounts for a total sum of Rs.4,90,865/- being the actual investments in this regard and the sources for the same are fully explained by the Assessee before Income Tax Department. Further the Assessee was not given a copy of alleged seized material at any point of time during the assessment proceedings to rebut the same with the correct facts in his possession. 126. It is further submitted that the CIT(A) has erroneously, held that Assessee has failed to explain the seized material satisfactorily, whereas no copy of seize material was given to the Assessee during the Assessment proceedings and has also held that the Assessee has offered no credible explan....
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....ade by Anil Kumar, which has no evidentiary value, and which is not corroborated by any other evidence. The statement is a self-serving statement made by Anil Kumar and cannot be used to make an addition in the hands of the Assessee in the absence of any supporting and corroborating evidence. 131. In view of the above, the CIT(A) held that the addition is not made based on evidence which will stand the test of law. The AO has merely relied upon a self-serving statement made by Anil Kumar and in the absence of corroborative evidence in support of the statement, which appears to be purely self-serving in nature and rightly deleted the said addition of Rs.1,05,82,000/-. 132. The Assessee submits that the data allegedly found in the CD cannot be relied upon solely in order to make an addition to the income of the Assessee and that it is absolutely necessary to have corroborative evidence in order to make an addition. 133. From the decision of the Supreme Court in the V.C. Shukla case, it is clear that in the case of the Assessee that the allegedly retrieved data from a CD allegedly found during the course of search does not constitute books of accounts regularly maintained by the As....