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TMI Blog2014 (1) TMI 1038X X X X Extracts X X X X X X X X Extracts X X X X ..... ed by the assessee - The CIT(A) was justified in deleting the addition on the basis of consideration of all the evidences filed by the assessee - Decided against Revenue. - ITA No.3745/Del/2013 - - - Dated:- 17-1-2014 - Shri G. D. Agrawal And Shri A. D. Jain,JJ. For the Petitioner : Shri G. R. Keswani, CA For the Respondent : Shri Keyur Patel, Sr. DR ORDER Per A. D. Jain, Judicial Member: This is Department's appeal for Assessment Year 2003-04 against the order dated 21.03.2013, passed by the CIT (A)-XXIII, New Delhi, taking the following grounds:- "1. On the facts and in the circumstances of the case, the Ld. CIT (A) has erred in deleting the addition of Rs. 1,90,00,000/- on the ground that department has not brought any material on record that Rs.2 crores of duty draw back had been received by the assessee. 2. On the facts and in the circumstances of the case, the Ld. CIT (A) has erred in deleting the addition of Rs.1,90,00,000/- when assessee has himself confessed that duty drawback to the tune of Rs.2 crores were wrongly availed by his firms." 2. The facts are that the completed assessment of the assessee was reopened on the basis of information rece ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... including a firm, Vision Inc., wherein the assessee was a partner; that the firm had been assessed for Assessment Year 2003-04 and had declared a sum of Rs. 68,97,158/- as duty drawback in its audited accounts; that the assessment had been made to include income of other persons in the income of the assessee, which was entirely illegal; that on query, the assessee had filed export documents along with details of duty drawback of RA Overseas, Bhavna Textile Impex, Vision Inc. and Sri Ganesha Overseas International; that these documents clearly supported the claim that the duty drawback of Rs. 1.9 crores assessed in the hands of the assessee did not belong to the assessee at all, but belonged to the parties who had carried out the exports; that the Ld. CIT (A) carried out detailed inquiries from the respective Assessing Officers of Vision Inc. and Shri Arun Gupta, brother of the assessee, Proprietor of M/s RA Overseas; that the Assessing Officer of Vision Inc. reported that the duty drawback of Rs. 68,91,759/- had been accounted for by Vision Inc., having been disclosed in the audited Profit Loss Account for Assessment Year 2003-04 and that in scrutiny assessment for Assessment Ye ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Ld. CIT (A) copies of export invoices, shipping documents and bank certificates of export and realization availed before the DGFT in the cases of Vision Inc., RA Overseas, Bhavna Textile Impex and Sri Ganesha Overseas International; that it had been submitted that Vision Inc., had received and accounted for duty drawback of Rs. 68,91,759/-, RA Overseas - Rs. 59,14,407/- and Bhavna Textile Impex - Rs. 33,84,837/-; that the Ld. CIT (A) had been requested to summon the details of duty drawback received by and assessment particulars of the other parties from the Assessing Officer, as the assessee was not in a position to produce such details; that reliance had been placed on order dated 30.03.2007 passed by the Ld. CIT (A)-XXIII, New Delhi in the case of Vision Inc., for Assessment Year 2003-04, wherein the CIT (A) had deleted the addition on excise duty drawback received of Rs. 68,97,158/-, for the reason that Vision Inc. had actually exported goods, received the export proceeds and disclosed the duty drawback in the return of income; that it had been submitted before the Ld. CIT (A) that the appeal of the department against the said order of the CIT (A) had been dismissed by the ITAT ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the exported goods by firms owned/controlled by him and undertook to refund the draw back amount to the tune of Rs. 2,00,00,000/-. The undisclosed income of Rs. 1,90,00,000/- has been arrived at by reducing the amount of Rs. 10,00,000/- deposited by the appellant with the DRI on 20.01.2003 from the amount of Rs. 2,00,00,000/-. It cannot be lost sight of that the appellant immediately retracted the statement of confession recorded by the DRI. Evidently, the assessment has been completed without considering the submissions made by the appellant that the entire duty draw back had been received by other parties, none of whom was owned or controlled by the appellant. The appellant had produced his books of account and bank statement before the Assessing Officer to show that his only sources of income for the year under consideration were interest and dividend. Copies of submissions made before the Assessing Officer have been placed on record. The appellant's connection was only to M/s Vision Inc., in which he was a partner, and addition was made of excess duty draw back of the same amount of Rs. 68,91,759/- in the hands of M/s Vision Inc. It is also noted that addition of excess duty dr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... raw back received during the year of Rs. 1,47,20,092/-, including the duty draw back of Rs. 59,14,407/- on 10 shipments between 15.04.2002 to 26.08.2002. The supporting invoices, bills of lading and duty entitlement passbook showing that the goods have been passed by the Customs authorities, have been filed. The Department has not brought any material on record that Rs. 2,00,00,000/- of duty draw back had been received by the appellant. No evidence has been brought on record that the duty draw back received by other parties, and reflected in their audited books of account and their returns of income, constituted undisclosed income in the hands of the appellant. Hence the addition made of Rs. 1,90,00,000/- is deleted. 5. In the result, the appeal is allowed." 8. A perusal of the afore-quoted relevant portion of the Ld. CIT (A)'s order shows that the Ld. CIT (A) has duly taken into consideration all the material before him while correctly deleting the addition made. To place the facts in perspective, the completed assessment of the assessee was reopened solely on the basis of the show cause notice issued by the DRI, wherein it had been alleged that the assessee had exported the g ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on Inc. only in terms of the show cause notice. The Ld. CIT (A), in the case of the present assessee, vide the impugned order, duly took all these facts into consideration and therefore, in our considered opinion, rightly arrived at the conclusion that the addition had been made by the Assessing Officer by merely and solely relying on the show cause notice issued by the DRI in 2004, without rebutting any of the evidences filed by the assessee. No fault whatsoever can be found with these observations/conclusions of the Ld. CIT (A), in absence of anything to the contrary brought on the record before us. Further, as correctly observed by the Ld. CIT (A), there is nothing in the assessment order to prove that it was the assessee who was the beneficiary of the duty drawback received by the other firms, including Vision Inc. The Ld. CIT (A) also duly took note of the fact that in the remand proceedings, the Assessing Officer of Vision Inc. had confirmed that the duty drawback added in the hands of the assessee stood reflected in the audited books of account of Vision Inc. The Ld. CIT (A) also noted that from the remand report of the Assessing Officer of RA Overseas, it was evident that t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he elaborate discussion made by CIT (A) which we have upheld, as above. It is trite that nobody can be put to prove a negative or an impossibility. The assessee, in turn, as taken note of in the preceding part of this order, has duly proved that the assessment was completed without considering the assessee's submission to the effect that the entire duty drawback had been received by other parties, none of which was either owned or controlled by the assessee. The books of account and bank statement produced by the assessee showed that his only source of income during the year was interest and dividend. The assessee was connected only with Vision Inc. as he was a partner in the said firm. Addition of Rs. 68,91,759/- representing excess duty drawback was made in the hands of Vision Inc. This addition too, was deleted by the Ld. CIT (A) by passing a speaking order. As duly taken note of by the Ld. CIT (A), in which order, the relevant evidence was considered and it was found that the export proceeds had been received as per the invoices, through banking channels. This finding was recorded on the basis of material documentary evidence whereby it stood proved that the goods had been actu ..... X X X X Extracts X X X X X X X X Extracts X X X X
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