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Showing 181 to 200 of 2362 Records
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2018 (7) TMI 2186
Preparation of District Survey Report (Stone) - implementation of Mining Surveillance System for minor minerals in the State - HELD THAT:- The affidavit of the Chief Inspector of Factories dated 3 rd July 2018 indicates that different Labour Laws such as Factories Act, Minimum Wages Act, Payment of Wages Act, Industrial Dispute Act, etc. are being enforced by the Department; total number of stone crushers registered as on 15th May 2018 is 559; number of industries allocated for online individual inspection is 117; number of industries allocated for joint inspection is 10; total number of industries for online inspection allocation from 1st April 2017 to 31st March 2018 is 127 and 43. Inspection reports have been uploaded as per the report of JAP IT. Total number of prosecution filed against Stone Crushers Factory management is 9. The Department of Labour has enclosed inspection reports which are of May 2017 and other similar dates. It is also required to indicate the follow up taken on the basis of those inspections and further inspection if carried out till date.
It is expected that the Department of Mines and Geology in particular to come out with concrete ideas and proposals to make the District Task Force more effective by the next date - The matter be, therefore, posted for 16th August, 2018.
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2018 (7) TMI 2185
Revision u/s 263 - Exemption u/s 11 - assessee is not doing charitable activities rather engaged in trade, commerce or business - HELD THAT:- The main objectives of the trust are to breed the cattle and endeavour to improve the quality of the cows and oxen in view of the need of good oxen as India is prominent agricultural country; to produce and sale the cow milk; to hold and cultivate agricultural lands; to keep grazing lands for cattle keeping and breeding; to rehabilitate and assist Rabaris and Bharwads; to make necessary arrangements for getting informatics and scientific knowledge and to do scientific research with regard to keeping and breeding of the cattle, agriculture, use of milk and its various preparations, etc.; to establish other allied institutions like leather work and to recognize and help them in order to make the cow keeping economically viable; to publish study materials, books, periodicals, monthlies etc., in order to publicize the objects of the trust as also to open schools and hostels for imparting education in cow keeping and agriculture having regard to the trust objects.
Objects of the trust are of general public utility and beneficial to the public at large as the centers are located at village level in various blocks (Tallukas) in the state of Rajasthan and in each center, gopals are deputed who are responsible for the objects of the assessee trust and such gopals organizes meetings with the villagers. When calf is borne out of the activities carried out by the trust then ‘calf borne certificate’ is issued, which contains the complete details of calving. We have also perused the objects of the trust (available in the paper book) which are of clearly in the nature of charitable purposes, therefore, the objections observed in the impugned order are fully satisfied.
So far as the contention of the Ld. CIT-DR and observed by the Ld. CIT(E) also that a detailed assessment order has not been framed is concerned, we find that firstly, AO was having the benefit of earlier assessment orders, wherein, identical claim of the assessee was allowed and secondly, the assessment was framed after issuance of notices, queries so raised, and on consideration of various replies filed by the assessee as discussed in earlier paras of this order and available on record. Thus, decisions from Hon'ble Apex Court, Hon'ble Gujarat High Court, other High Courts and Hon'ble jurisdictional High Court, we are of the clear opinion that the revisional jurisdiction invoked by the Ld. CIT(E) is not justified. Appeal of the assessee is allowed.
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2018 (7) TMI 2184
Direction to Corporate Debtor to vacate the premises belonging to the decree holder - HELD THAT:- In view of sub-clause (1) of clause (d) of Section 14 of the Insolvency and Bankruptcy Code, 2016, the recovery of property by the owner occupied by the ‘Corporate Debtor’ is not permissible during the period of moratorium.
It was then contended that the period of moratorium is coming to an end on 15th August, 2018 thereafter the appellant has right to pursue for recovery of arrears of rent. We don’t express any opinion in this regard as such issue can be decided by the court of competent jurisdiction.
Appeal disposed off.
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2018 (7) TMI 2183
Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Financial Fraud - Financial Creditors or not - existence of debt and dispute or not - HELD THAT:- On perusal of the report of Amicus Curiae it appears that the corporate debtor company i.e. The Prism Industrial Complex Limited has committed a financial fraud. It appears that the corporate debtor company has issued secured debentures of the aggregate value of ₹ 31.79 crores up to 31 March 2017. The paid-up share capital of the company on that date was merely [= ₹ 5 lakh +50 lakh (application money)] ₹ 55 lakhs. The only tangible asset of the company was land valuing ₹ 75.08 lakhs. The funds of Prism Industrial Complex Limited raised through secured debentures might have been diverted to group companies and/or the directors and their associates - The offer for sale of land now is nothing but farce and a clever device to prolong the proceedings in cases where orders have been passed against them. Since this land is owned by Prism Infracon Ltd and not by Prism Industrial Complex Limited, it cannot be sold and proceeds utilised for meeting the liabilities of Prism Industrial Complex Limited.
The present case is one where interests of a large number of retail investors, from whom money has been raised in the guise of debentures or deposits, is involved, None of these retail investors, who have been deprived of their life’s savings, could be intending to be benevolent to think of resolution or revival of such a company. it is also evident that having raised money from numerous investors, the promoters/directors have siphoned the funds out into various affiliated companies. This is evident from a study of the balance sheet of the company - This will actually mean the orders made by SEBI or NCLT for immediate refund of the money raised from retail investors will not be implemented during the moratorium period. Also, the constitution of the Committee of Creditors and the system of voting there at, goes on the basis of majority by value. It is quite possible that the corporate person may have created creditors with high value, who may care least for the interests of retail investors, from whom money has been raised. Hence, the so-called resolution plan may harm the interests of such investors.
Thus it is clear that while a petition is filed under Insolvency and Bankruptcy Code 2016, fraudulently with malicious intention for initiation of CIRP, then in that case the petition can not be admitted not be admitted and actions should be initiated under section 65 of the Code. This is a fit case where that this petition has been filed fraudulently for intimation of corporate insolvency process, therefore petition deserves to be dismissed.
Petition dismissed.
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2018 (7) TMI 2182
Maintainability of appeal on low tax effect - HELD THAT:- CBDT has issued circular No. 3/2018 dated 11th July, 2018 vide which it has been decided by the Board that the departmental appeals shall not be filed before the ITAT in cases where the tax effect does not exceed the monetary limit of ₹ 20 lacs. Also specified at para 13 of the CBDT circular No. 3/2018 that this circular shall apply retrospectively to pending appeals below the specified tax limit. We consider that the CBDT has issued the circular 3/2018 dated 11th July, 2018 envisaging therein that department ’s pending appeals before the Tribunal are to be withdrawn/not pressed as per the above stated circular, therefore, appeal of the revenue is required to be dismissed in l imine. The ld. D.R. has fairly admit ted that the applicability of the CBDT Circular no. 3 of 2018 dated 11th July, 2018.
In the light of the above CBDT’s circular, we find that the appeals filed by the Revenue are not maintainable and cross object ions of the assessee on account of merely supporting the order of ld. CIT(A) are also dismissed as infructuous.
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2018 (7) TMI 2181
Depreciation claim pertaining to its licence to collect tollway on the Second Vivekanand Bridge u/s 32(1)(ii) - depreciation on intangible asset - HELD THAT:- We find this question to be no more res integra as per tribunal’s Special Bench’s decision in M/s Progressive Construction Ltd. case [2017 (3) TMI 1167 - ITAT HYDERABAD] has on rejected Revenue’s similar arguments based on Board’s circular No. 9/2014 dated 23.04.2014.
It is therefore sufficiently clear that the learned Special Bench has settled the issue treating a similar licence to collect tollway to be an intangible asset under the relevant statutory provision. We therefore adopt the above detailed reasoning mutatis mutandis to accept assessee’s instant former substantive ground. The impugned depreciation disallowance stands deleted accordingly.
Leave encashment provision disallowance u/s 43B(f) - HELD THAT:- Both parties are ad idem during the course of hearing that hon'ble jurisdictional high court’s decision on Exide Industries Ltd. vs. Union of India ( [2007 (6) TMI 175 - CALCUTTA HIGH COURT]is both deleting the impugned disallowance as well as declaring the statutory provision itself as unconstitunal stands stayed in Revenue’s appeal preferred in hon'ble apex court. We therefore direct the assessing authority to keep the instant issue in abeyance till hon'ble apex court’s final verdict. This substantive ground is accepted for statistical purposes.
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2018 (7) TMI 2180
Reopening of assessment u/s 147 - re-assessment proceeds on information received from Deputy Director of Investigation - likehood of suspicious transactions - HELD THAT:- The information received from the Assistant Director of Income-Tax dated 24th March, 2017 referred to certain transactions as suspicious transactions and called upon the Assessing Officer to verify the transactions as there is a likelihood that income chargeable to tax has escaped assessment. The reasons in support of the impugned notice do not indicate any application of mind and/or further processing of the information to come to a reasonable belief that income chargeable to tax has escaped assessment. Infact, it proceeds on the basis that transactions are suspicious.
The reasons also do not specify, prima-facie, the quantum of tax which has escaped assessment but merely states that it would be atleast be ₹ 1,00,000/-. Prima-facie, we are of the view that the reasons recorded do not indicate reasonable belief of the Assessing Officer himself to issue the impugned notice. Thus, prima-facie, the impugned notice is without jurisdiction.
Accordingly, till the final disposal of this petition, there shall be interim stay of the impugned notice issued under Section 148 - Decided in favour of assessee.
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2018 (7) TMI 2179
Default u/s 201 - disallowance u/s 40(a) - addition deleted in earlier years as assessee has in subsequent year either deducted tax at the time of payment or added back the relevant expenditure in P & L Account and wherever TDS was deducted in subsequent year, the same was remitted to Govt. Account - HELD THAT:- In the present years, no such report of the AO is brought on record to show that TDS is deducted in later years at the time of payment and remitted to Govt. Account or where payment was not made, the provision of expenses was written back and credited to P & L Account. Hence, the assessee cannot get any relief in the present years on similar line as of earlier years. Rather one thing stands admitted that the liability of the assessee is there for TDS and since, this liability is not discharged in the present years or in any subsequent year, the issue regarding TDS u/s 201 (1) is also decided against the assessee and accordingly, we dismiss all ten appeals of the assessee regarding demands u/s 201 (1) as well as levy of interest u/s. 201(1A) of IT Act.
Assessee’s claim u/s. 158A (3) is admitted and therefore, assessee shall not be entitled to raise any question of law in the present five years before Hon'ble Karnataka High Court u/s. 260A of IT Act and when the decision on the questions of law in Assessment Years 2006-07 to 2009-10 becomes final, it shall be applied to the present 5 years also i.e. Assessment Years 2010-11 to 2014-15.
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2018 (7) TMI 2178
TP Adjustment - comparable selection - ALP - substantial question of law or fact - Tribunal excluding comparables Company having turnover exceeding ₹ 200 Crores by following its earlier decision - whether the Tribunal is right inlaw in excluding comparables such as Bothree Consulting Ltd., Kals Information Systems Ltd., Tata Elxsi and Infosys Technologies Ltd.? - HELD THAT:- The controversy involved herein is no more res integra in view of the decision of this Court in M/s.Softbrands India Pvt. Ltd.[2018 (6) TMI 1327 - KARNATAKA HIGH COURT] wherein it has been observed that unless the finding of the Tribunal is found ex facie perverse, the Appeal u/s. 260-A of the Act, is not maintainable. Thus no substantial question of law arises for consideration in the present case.
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2018 (7) TMI 2177
Short payment of duty - undervaluation of goods - allegation is that the appellant was required to make payment of central excise duty on the said goods upon valuation thereof at the prices sold by Philips India to its customers, which having not been done, there was undervaluation of the products in question resulting in short payment of duty - HELD THAT:- The Commissioner’s reliance on the decision of the Supreme Court in SIDHOSONS & ANR. ETC. VERSUS UNION OF INDIA & OTHERS ETC. [1986 (10) TMI 38 - SUPREME COURT] in support of the conclusion that valuation of the subject goods had to be on the basis of the prices declared by Philips India to its customers is misconceived and erroneous.
It is relevant to state that in the instant case neither in the show cause notices nor in the impugned order there is any allegation or finding that the determination of assessable value of the subject goods cleared by the appellant on which central excise duty was paid did not satisfy the requirements as laid down in UJAGAR PRINTS, ETC. ETC. VERSUS UNION OF INDIA AND OTHERS [1988 (11) TMI 106 - SUPREME COURT] and PAWAN BISCUITS CO. (PVT.) LTD. VERSUS COLLECTOR OF CENTRAL EXCISE, PATNA [2000 (7) TMI 78 - SUPREME COURT] and that the assessable value on which the central excise duty was paid was lower than the assessable value if determined on the basis of total cost of raw materials, labour charges and profit of job workers as laid down in the said decisions.
Demand set aside - appeal allowed - decided in favor of appellant.
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2018 (7) TMI 2176
Registration of the mark 'NANDHINI' in respect of the goods in which it is dealt with(milk and milk products) - infringement of rights of the Respondent or not? - similar trade mark in respect of different goods and different time periods involved - deception and confusion in the minds of the users that the goods in which the Appellant is trading, in fact, are the goods which belong to the Respondent - entire case of the Respondent revolves around the submissions that the adaptation of this trade mark by the Appellant, which is phonetically similar to that of the Respondent, is not a bona fide adaptation and this clever device is adopted to catch upon the goodwill which has been generated by the Respondent in respect of trade mark 'NANDINI'.
HELD THAT:- The reasoning of the High Court that the goods belonging to the Appellant and the Respondent (though the nature of goods is different) belong to same class and, therefore, it would be impermissible for the Appellant to have the registration of the concerned trade mark in its favour, would be meaningless. That apart, there is no such principle of law.
We are not persuaded to hold, on the facts of this case, that the Appellant has adopted the trade mark to take unfair advantage of the trade mark of the Respondent. We also hold that use of 'NANDHINI' by Appellant in respect of its different goods would not be detrimental to the purported distinctive character or repute of the trade mark of the Respondent. It is to be kept in mind that the Appellant had adopted the trade mark in respect of items sold in its restaurants way back in the year 1989 which was soon after the Respondent had started using the trade mark 'NANDINI'. There is no document or material produced by the Respondent to show that by the year 1989 the Respondent had acquired distinctiveness in respect of this trade mark, i.e., within four years of the adoption thereof. It, therefore, appears to be a case of concurrent user of trade mark by the Appellant.
The orders of the IPAB and High Court are set aside - These appeals are allowed and the order of the Deputy Registrar granting registration in favour of the Appellant is hereby restored, subject to the modification that registration will not be given in respect of those milk and milk products for which the Appellant has abandoned its claim.
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2018 (7) TMI 2175
Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Tripartite agreement - Financial Creditors or not - existence of debt and dispute or not - HELD THAT:- A perusal of various clauses of the Tripartite Agreement dated 29.11.2014 demonstrates that the applicant/ allottee assigned/ subrogated all its rights alleged to have been created in its favour by the Supplementary Agreement in favour of the HDFC Bank. There is no liability for the Corporate Debtor to pay the cancellation amount to the applicant. In the circumstances the applicant cannot be treated as financial Creditor, thus petition U/S 9 of IBC is not maintainable.
As the applicant subrogated all its rights in favour of the HDFC Bank, therefore he cannot be treated as financial creditor - Petition dismissed.
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2018 (7) TMI 2174
Penalty u/s 271(1)(c) - assessee has not complied with the orders of the AO and did not co-operate in submitting the information asked by the AO - As during the course of survey proceedings it was admitted by Shri Jayantibhai Lakhani that he and his group members had accepted unsecured loans by giving cash to the person from whom loans and advances received - HELD THAT:- It is evident that the appellant had deliberately and intentionally not disclosed the true and correct income with the intention to avoid payment of tax and thereby concealed the income. The facts and circumstances as discussed in above decision of ITAT, Ahmedabad ‘D’ Bench in assessee’s own case in [2010 (3) TMI 1078 - ITAT AHMEDABAD] for A.Y.2004-05, we find that provisions of section 271(1)(c) are attracted. Therefore, we do not find any reason to interfere with findings recorded by the lower authorities. - Decided against assessee.
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2018 (7) TMI 2173
Refund claim of duty paid but actual export could not take place - time limitation - export of goods in terms of the shipping bill - the High Court allowed the refund.
HELD THAT:- The impugned judgment of High Court need not be interfered with - SLP dismissed.
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2018 (7) TMI 2172
Validity of Assessment Order u/s 153(3) - time limit specified in Section 153(2A) - period of limitation where entire order was not set aside but matter was remanded back for for limited aspects with directions - HELD THAT:- Delay condoned. Leave granted.
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2018 (7) TMI 2171
Maintainability of appeal by revenue - low tax effect - effect involved being less than the prescribed monetary limit of ₹ 20 lakhs in the Instructions issued by Central Board of Direct Taxes in 2011 - HELD THAT:- In view of the reasons and the Circular dated 11.07.2018 issued by the Central Board of Direct Taxes, the present appeal filed by the appellant-Revenue is permitted to be withdrawn.
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2018 (7) TMI 2170
Revision u/s 263 - Iack of enquiry v/s inadequate enquiry - unexplained cash credit ad expenses - AO not properly examining the issues in the seized material marked as NRI-1 to NRI-40 for the assessment year 2012-13 - HELD THAT:- It is a fact that the AO has conducted the survey u/s 133A and recorded the statements during the course of survey and found the discrepancies at the time of survey. All the above discrepancies were found by the AO at the time of survey and because of the discrepancies found during the course of survey, the assessment was reopened u/s 147 to examine the material available at the time of survey.
Accordingly, the AO has taken up the case for assessment, called for the books of accounts, examined the books of accounts and completed the assessment. In this case, the entire material was available to the AO and the books of accounts were also made available to the AO. The assessee contended that the entries made in the rough cash book are nothing but the duplication of entries in the regular books of account and no separate cash was introduced. Therefore, once the AO examined the books of accounts, there is no basis for holding that the AO has not examined the issue merely because the AO has not recorded his finding with regard to issues in the rough note book in the assessment order or has not placed the relevant details in the assessment records.
Pr.CIT cannot conclude that the AO has not examined the issue when the material is very much available with the AO. In these facts and circumstances, it is for the revenue to establish that the AO has not examined the issue in the reassessment, which the revenue has failed to do so. The Pr.CIT cannot consider the entries made in the rough cash book only with the withdrawals made from the bank. It has to be considered with regular cash book and withdrawals made from the bank account together. If the same is considered, there was no negative balance and the source of the entries made in the rough note book stands explained.
Though lack of enquiry is a reason for taking up the case for revision, inadequate enquiry cannot be held to be erroneous and prejudicial to the interest of the revenue. Therefore, we hold that the assessment order passed by the AO was not erroneous and the revenue could not support it’s contention that the AO has not enquired into the issues available in the impounded material. Therefore, the order passed by the CIT u/s 263 is unsustainable and accordingly cancelled. - Decided in favour of assessee.
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2018 (7) TMI 2169
Eligibility for claiming deduction u/s. 80IA(4) - HELD THAT:- From the documents on record we observe that the issue of assessee’s eligibility for claiming deduction u/s. 80IA(4) has cropped up year after year since assessment year 2003-04. The Tribunal for the first time for assessment year 2003-04 by placing reliance on the decision of Hon’ble Bombay High Court in the case of Commissioner of Income Tax Vs. ABG Heavy Industries Ltd. [2010 (2) TMI 108 - BOMBAY HIGH COURT] held the assessee eligible for claiming deduction u/s. 80IA(4) of the Act. Thereafter, the Tribunal in subsequent assessment years following the decision of Co-ordinate Bench in assessee’s own case [2012 (2) TMI 524 - ITAT PUNE] has been allowing benefit of deduction u/s. 80IA(4) of the Act to the assessee.
The facts in the assessment year under appeal are identical. We do not find any reason to interfere with the findings of Commissioner of Income Tax (Appeals) in following the order of Tribunal in assessee’s own case and to allow assessee’s claim of deduction u/s. 80IA(4) of the Act. Accordingly, grounds raised by the Revenue in appeal are dismissed being devoid of any merit. Appeal of Revenue is dismissed.
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2018 (7) TMI 2168
Deduction u/s 10AA on foreign exchange and forward contract gain - forward contract gain and foreign exchange gain not considered as income from the business of the export which is eligible for deduction under section 10 AA - HELD THAT:- In the case of CIT v. Gem Plus Jewellery India Ltd. [2010 (6) TMI 65 - BOMBAY HIGH COURT] has ruled that Gain from fluctuation of foreign exchange is directly related with the export activities and should be considered as income derived from export in the year in which the export took place for the purpose of deduction u/s 10A.
Exchange rate fluctuation for claiming deduction U/s 10AA of the Act is income of the business as the exchange rate fluctuation are resultant from realization of export sale proceeds as per the export invoices and as per the definition of export turnover, the consideration received in respect of the exports, for example, total amount realized for sale invoices shall form part of export turnover. Therefore, the total turnover is denominator, which sale also includes the effect of foreign exchange fluctuation. Therefore, such inclusion of foreign exchange fluctuation in the profits shall qualify for deduction U/s 10AA of the Act.
Telecommunication expenses also be reduced from the total turnover for the purpose of computing deduction under section 10 AA - CIT – A relying upon the decision of the Hon’ble Delhi High Court in the case of Gen pact India [2011 (11) TMI 119 - DELHI HIGH COURT] wherein it has been held that there should be Uniformity in the ingredients of both the numerator and denominator in the formula for computation of deduction under section 10 A of the income tax act. Therefore, he directed the AO to include the telecommunication expenses in the export turnover if it is included in the total turnover for computing deduction under section 10 AA of the act. As the Ld. CIT – A has decided the issue following the decision of the Hon’ble Delhi High Court we find no infirmity in his order. Further identical view has also been taken by the Hon’ble Karnataka High Court in in case of Dell international services India private limited [2012 (5) TMI 388 - KARNATAKA HIGH COURT] and Samsung electronics Co Ltd [2011 (11) TMI 429 - KARNATAKA HIGH COURT]- Revenue dismissed.
Allowing migration/on the job training expenses from the total turnover for the purpose of computing deduction under section 10 AA - CIT-A rejected the finding of the Ld. assessing officer holding that the Hon’ble Delhi High Court in Karnataka High Court ..has taken a view that numerator and denominator should be same. The above view is the correct view otherwise the profit eligible for deduction will give a distorted picture. The detailed finding of been given by the Ld. CIT – A in para No. 6 of his order. We do not find any infirmity in the order of the Ld. CIT – A and therefore the ground No. 3 of the appeal of the revenue is dismissed.
TP Adjustment - interest at the rate of LIBOR +1.5% instead of 16% rate of interest charged on the delayed payment from the associated enterprises - HELD THAT:- CIT appeal who reduced the addition holding that interest shall be chargeable at the rate of LIBOR +1.5% instead of 16% computed by the Ld. transfer pricing officer. The Ld. CIT – A while reducing the interest component has relied upon the decision of the coordinate bench [2013 (12) TMI 1535 - ITAT MUMBAI] for assessment year 2008 – 09 wherein the coordinate bench has held that notional interest at the rate of LIBOR +1.5% should be charged on the delayed payments the associated enterprise. As the Ld. CIT – A has followed the decision of the coordinate bench on the similar facts and circumstances where the interest component was computed on the delayed payment of charges by the associated enterprise. In view of this we do not find any infirmity in the order of the Ld. CIT – A and Ld. Departmental representative also could not show us that the interest computation mechanism directed by the Ld. CIT – A is not appropriate - Appeal of revenue dismissed.
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2018 (7) TMI 2167
Addition u/s 68 - difference in opening balance to the extent not explained by the assessee - CIT-A deleted the addition - HELD THAT:- Assessee could change any figures given in table given to satisfy the requirement of capital as on 01.04.2011, and argue that opening balance as on 01.04.2011 were from balances available with it on 01.04.2003, and hence could not be considered for addition in the impugned assessment year. If such claim is allowed, any amount shown by the assessee as opening balance can be claimed as coming out from balances of the earlier years.
Despite this lacuna in the claim of the assessee, AO accepted what all the assessee could even remotely substantiate in such opening balance. AO, in our opinion was more than fair in accepting every explanation given by the assessee except for its claim of opening capital of ₹ 1,02,06,929/- as on 01.04.2003 and deficit due to non reflection of drawings and sources for tax payments in the earlier years. Assessee was duty bound to explain every rupee out of the opening capital balance of ₹ 7,46,48,917/- shown by it as on 01.04.2011.
Especially so since it had shown ‘’Nil’’ amount as its capital in the Balance sheet as on 31.03.2011 forming part of its return for assessment year 2011-12. Explanation of the assessee that the sum of ₹ 1,02,06,929/- represented cash in hand, value of food grain stock and value of agricultural produce was not substantiated before the ld. Assessing Officer, through any evidence. That apart, agricultural income shown by the assessee himself was in the vicinity of ₹ 1,00,000/- to ₹ 1,25,000/- per year, and the probability of accumulating a huge amount from such agricultural income was negligible.
Drawings and taxes in the earlier years - It is an admitted position that such drawings and taxes do not appear in the table furnished by the assessee reproduced by us at para 3 above - assessee had no source for his personal expenses and taxes paid. Hence, we have to consider that such amounts had gone out of the income of the respective years. Then without doubt, opening capital as on 01.04.2011, would remain unexplained to the extent of such aggregate drawings and taxes.
Commissioner of Income Tax (Appeals) in our opinion fell in error in considering the Balance sheet filed by the assessee alongwith its own return as not factual and incorrect one. An assessee cannot be allowed to approbate and reprobate. It cannot say that its own Balance sheet did not reflect correct state of affairs.
Just by claiming that the capital was represented by assets, which were acquired during earlier years, in our opinion an assessee cannot escape from its onus of explaining the source of such capital. In the facts and circumstances, we are of the opinion that ld. Assessing Officer was justified in making the addition for unexplained capital, drawings and taxes paid. Judgment of Hon’ble Jurisdictional High Court in the case of C. Packirisamy [2008 (12) TMI 190 - MADRAS HIGH COURT] does enable an Assessing Officer to make an addition for deficit in opening capital. The additions made by the ld. Assessing Officer, are all reinstated. Order of the ld. Commissioner of Income Tax (Appeals) is set aside. Appeal of the Revenue is allowed.
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