TaxTMI 
TaxTMI 
TaxTMI 
2012 (12) TMI 1262
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....ted by the Learned CIT(A). There is no bar in allowing Depreciation against income of Cinema Hall shown on an estimated basis. 4. That the expenses claimed amounting to Rs. 1,17,473 relates to repair and coloring of the lodging and Rs. 3,29,643 the unpaid liabilities. Therefore should have been allowed by the authorities below. 5. That the statement of facts and grounds of appeal enclosed along with the Form - 35 submitted before the CIT(A) and also the written submissions may please be treated as part of the grounds of appeal before I.T.AT. 6. That the case law cited by the learned CIT(A) for dismissing the appeal are totally distinguishable on facts and have no relevance to the facts of the assessee and therefore not applicable and misconceived." 2. The brief facts as have been brought on record as narrated by the learned Counsel of the assessee are that the assessee derives income from raising iron ores from its iron ore mines. It filed its return for the impugned Assessment Year on income of Rs. 1,44,92,680, which was processed u/s.143(1). Subsequently the case was selected for scrutiny and the assessment was completed u/s. 143(3) by making additio....
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....07 Advance Rs. 10,00,000.00 22-08-2007 Payment by Cheque Rs, 60,00,000.00 18-12-2007 Payment by Cheque Rs. 2,00,000.00 Rs. 72,00,000.00 Balance Payable as on 31-03-2008 Rs. 22,20,500.00 4.4. The learned Counsel of the assessee submitted that from the above it can be seen that all the above transactions for purchase of the Cinema Hall have been taken place during the Financial Year 2007-08, Asst. Year 2008- 2009 and not during the year under appeal Asst. Year 2009-2010. But addition of Rs. 22,20,500 has been made during the Assessment Year 2009-10. Hence, the learned AO has travelled beyond his jurisdiction in making additions during the year under consideration which is illegal and not justified. The learned AR of the assessee further contended that the assessee himself being present before the Assessing Officer stated that out of the balance money of Rs. 22,20,500 the following payments have been made by Cheque, 22-08-2008 - Rs. 3,00,000 03-02-2009 - Rs. 3,00,000 - Rs. 6,00,000 and the rest of the sales consideration amounting to Rs. 16,20,500 was paid after final physical possession handed over to the assessee....
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....Ram Narain Goel - 224 ITR 186 (P&H)). 4.7. He further submitted that the principle that suspicion howsoever strong cannot be a substitute for legal truth is well established. For this proposition he relied on the following decisions. (a) Commissioner of Income-tax V. Ram Narain Goel 224 I.T.R. 180 (Punjab & Haryana). (b) The said decision is based on the principle decided by Honourable Supreme Court of India in plethora of cases. (c) In the case of Vijay Kumar Arora Vs. State Govt. of NCT of Delhi in Criminal Appeal No. 125 of 2009 dt. 13.01.2010 has held that "The law relating to circumstantial evidence is well settled. In dealing with circumstantial evidence, there is always a danger that conjecture or suspicion lingering on mind may take place of proof. Suspicion, howsoever, strong cannot be allowed take place of proof and therefore, the court has to be watchful and ensure that conjucture and suspicion do not take place of Legal proof. The doctrine of benefit of doubt applies - Court should excluded each and every hypothesis. (d) In a recent Supreme Court judgement decided on 24.8.2012 in the case of Subramanian Swamy Vs. A. Raja (....
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....st. Year 2008-09 and the same have been accepted. More so, all the payments have been made through Bank. The narration in the "sale deed" is the sole material brought by the Assessing Officer but he should have also considered the explanation of the assessee, entries in the accounts and affidavit. He should have taken a practical and realistic view. He should have been pragmatic and not "hyper technical". Narration of payment in the sale deed is only to get registration done. The sub-register questions whether the entire sales consideration has been received by the seller, if he says "Yes" then the sale deed is registered. Actual payment is never made before the sub-register. Giving consent of the receipt of the payment is an usual "formality" performed before the Sub-Registrar for getting the registration done. The date of receipt of actual payment may be different. It is mutual understanding between the Vendor and Vendee. The primary duty of the Sub-Registrar (Registering Authority) under the Stamp Act and the Indian Registration Act is to ensure correct valuation and realization of stamp duty and registration fees thereon. Without receipt of sales consideration if a Vendor says ....
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....e allegation of the department that Rs. 24,20,500 have been paid by cash though denied by the appellant which is confirmed by seller by way of affidavit has not been accepted. The witness to the sale deed could have taken cross examined before rejecting. The explanation the assessee which the department has failed to do. 4.13. The submission made on behalf of the assessee that there is no provision in law to make addition under the head "un-explained creditor" and the addition can only be made either u/s 68 or 69. The learned CIT(A) by citing the decision of the MP High Court in the case of VISP (P) Ltd Vs. CIT, 265 ITR 202(MP) has wrongly attempted to make out a case for the department is distinguishable on facts. The learned CIT(A) misinterpreted the submission of the assessee saying that in the affidavit filed by the appellant and Sri Laxman Padia has not corroboration, even though both the affidavit confirm the same fact and the CITA rejected such contentions saying that an affidavit is a self serving document which lacks evidenciary value. While rejecting such submissions the learned CIT(A) has cited two decisions reported in AIR in 1992 (Delhi) 220, 223 and AIR 1970 (SC), ....
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....g has been shown on estimated basis which is not correct, because letter dated 25-07-2011 was silent about the issue. But the counsel appearing before the Assessing Officer Sri B.B. Dash vide letter dated 07-09-2011 has clarified that every month the assessee was receiving a fixed amount of Rs. 25,000 per month which aggregates Rs. 3,00,000 per annum. Therefore the expenses claimed towards repairs of the lodging amounting to Rs.1,17,473 is very much allowable under the facts and circumstances of the case. The learned Counsel of the assessee pleaded that a hypothesis cannot be drawn thus merely on the basis of probability of human conduct to visit the assessee with additional tax liability. In civil law the Courts and Tribunal do not act on probability alone but on a preponderance of probabilities which it is humbly submitted is wanting in the case for which the assessee is entitle to benefit of reasonable doubt as per the well settled practice and procedure applied in such matter. 7. However, in respect of confirmation of addition of, the learned Counsel of the assessee left it to the discretion of the Bench with respect to the disallowance of statutory liabilities remaining unp....
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....sessing Officer when he held that the sum of Rs. 16,20,500 was paid as late as 3.2.2012 by cheque and partly in cash. These are undisputed facts noted by the learned CIT(A) when he sought to counter the finding of the Assessing Officer in declining the affidavits so filed by the assessee before it would not change the situation that the physical possession of the building, shop rooms and land were to be acknowledged being enjoyed by the assessee before us. In other words, it was the case of the assessee that the assessee did not have the cash amounting to Rs. 22,20,500 to have paid in 2007 which was a reference made for getting registration when the major payment had been made in 2007 duly accounted in the books of account. It was not the case of the Assessing Officer to link Rs. 16,20,500 to Rs. 22,20,500 to hold that the amount had been paid in advance and it was an afterthought to have been paid in 2012 whether could be considered fit for addition in the impugned Assessment Year as unexplained credit. Therefore, we are of the considered view that creditors for expenses addition cannot be made either u/s.68 or u/s.69 unless the assessing authorities are on the finding that the as....
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....d by the assessee in the FY 2007-08 has to be correspondingly granted depreciation in accordance with the provisions of the I.T. Act insofar as depreciation is a charge on the asset which becomes intangible insofar as it has got no bearing to the rendering of income there from. It has been owned by the assessee and put to use by the assessee as per the financial statement produced duly audited before the assessing authorities. Therefore, the date of purchasing being 18.8.2007 required the assessee to claim depreciation in accordance with the provisions of the I.T. Act and not because the assessee has leased out for earning estimated income there from. We have perused the consolidated Profit & Loss account for the impugned Assessment Year when the assessee has apart from dealing in mining ore has incurred expenditure and claimed deprecation in accordance with the provisions of the I.T. Act when no other expenditure with respect to the income generated from the Cinema Hall has been shown separately. Similarly with respect to the income from lodging which the assessee already owned was being shown when the Assessing Officer considered that repairs amounting to Rs. 1,17,473 could not b....