2018 (5) TMI 1323 - AT - Income Tax

Undisclosed income from purchase of bitumen from Shri K.K.Kedia - Held that - When it is proved that charges against the assessee are not correct no addition based on such allegations can be sustained. The ld. CIT(A) also records that the assessee has filed documents to counter the allegations of the AO and to prove actual delivery of bitumen etc and also to prove that there was no misappropriation. The ld. DR could not controvert the factual finding of the ld. CIT(A) nor he produced any material before this Bench to controvert the submissions of the assessee. Addition in block assessment made u/s 158BC - The findings of the First Appellate Authority that, there is no material found or seized during the course of search and hence no addition can be made in the block assessment made u/s 158BC could not be controverted by the DR. CIT(A) further held that the addition is not correct in law as it was based on a presumption that 55% of the expenses booked are bogus expenditure. As the facts was not controverted, we uphold this finding of the ld. First Appellate Authority and dismiss this ground of the assessee. Revenue s appeal dismissed on the issue of addition.

Issues Involved:
1. Delay in filing appeals.
2. Addition of negative cash balance.
3. Additions related to bitumen scam (transportation charges, undisclosed income from sale of bitumen, and non-delivery issues).
4. Undisclosed income from purchase of bitumen from Shri K.K.Kedia.
5. Alleged violation of Rule 46A of the Income Tax Rules.
6. Addition relating to bogus sundry creditors.

Issue-wise Detailed Analysis:

1. Delay in Filing Appeals:
The appeals were delayed by 3 days. After reviewing the petition for condonation of delay, the tribunal condoned the delay and admitted the appeals.

2. Addition of Negative Cash Balance:
The Revenue contested the deletion of additions related to unexplained cash receipts due to negative cash balances in the cash books for the financial years 1995-96 and 1996-97. The First Appellate Authority found that the two business concerns, M/s. Chharia Transport Organisation and M/s. Hindustan Tar Products, had a common cash pool and maintained a common cash book. The negative cash balances in the books of M/s. Chharia Transport Organisation were covered by sufficient cash availability in the books of M/s. Hindustan Tar Products. The tribunal upheld this factual finding, noting that the Revenue could not controvert it.

3. Additions Related to Bitumen Scam:
The Revenue challenged the deletion of additions related to transportation charges and undisclosed income from the sale of bitumen. The First Appellate Authority noted that the Assessing Officer (AO) based the additions on assumptions and the CAG report on the bitumen scam without specific findings against the assessees. The tribunal found that the AO's assumptions were not substantiated by any material evidence and that the names of the assessees did not appear in the CAG report or other relevant reports. The tribunal upheld the deletion of these additions, finding no infirmity in the factual findings of the First Appellate Authority.

4. Undisclosed Income from Purchase of Bitumen from Shri K.K.Kedia:
The Revenue contested the deletion of additions related to undisclosed income from the purchase of bitumen from Shri K.K.Kedia. The First Appellate Authority found that no evidence was found during the search to show that the creditors were bogus. The tribunal upheld this finding, noting that the addition was based on a presumption that 55% of the expenses booked by the assessee were bogus, which was legally untenable. The tribunal also noted that the issue was covered by a decision of the jurisdictional ITAT in a similar case.

5. Alleged Violation of Rule 46A of the Income Tax Rules:
The Revenue alleged that the First Appellate Authority violated Rule 46A by allowing claims based on documents that were not produced before the AO. The tribunal found this allegation factually incorrect, noting that the assessees had filed documents to counter the AO's allegations and prove actual delivery of bitumen.

6. Addition Relating to Bogus Sundry Creditors:
In the case of Shri Ankit Chharia, the Revenue contested the deletion of additions related to bogus sundry creditors. The First Appellate Authority found that no evidence was found during the search to show that the creditors were bogus and that the issue pertained to regular assessment proceedings. The tribunal upheld this finding, noting that the addition was not sustainable in law or on facts.

Conclusion:
The tribunal dismissed both appeals of the Revenue, upholding the findings of the First Appellate Authority on all contested issues. The tribunal found that the additions made by the AO were based on assumptions and presumptions without substantiating evidence and that the First Appellate Authority's factual findings were correct and uncontroverted.

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