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TMI Blog2015 (7) TMI 944X X X X Extracts X X X X X X X X Extracts X X X X ..... that situation, sale proceeds of stock has to be considered as income only and the balance has to be considered as stock in absence of any evidence that entire stock was sold for ₹ 2.03 Lacs. If this demand of KESCO is other than liability as per books than also the assessee has to establish that deduction is allowable for the same but the assessee has not even explained the nature of the liability said to be payable to KESCO. Hence, we do not find any reason to interfere in the order of learned CIT (A) on this issue. - Decided against assessee. Addition on the basis of profit on sale outside books of excess stock shown in the stock statement ubmitted to the bank by the assessee - CIT(A) deleted the addition - Held that:- The present issue is covered in favour of the assessee by the judgment of Hon’ble Jurisdictional High Court rendered in the case of CIT vs. Khan & Sirohi Steel Rolling Mills (Supra). Learned CIT (A) has decided this issue by following this judgment and learned DR could not point out any difference in facts. Hence, we decline to interfere in the order of learned CIT (A) on this issue. - Decided against revenue, Unexplained investment made in the purch ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or contravention of contractual obligation between borrower and lender and not for infraction of any law. Learned DR of the revenue could not controvert any of these findings of CIT (A). Hence, we find no reason to interfere in the order of CIT (A) on this issue. - Decided against revenue. Validity of assessment order u/s 143(3) - Held that:- Learned CIT (A) held that since the notice u/s 143 (2) was not validly served on the assessee within prescribed time, the assessment is void and he annulled the same. We find no infirmity in the order of CIT (A) in the facts of the present case and therefore, we decline to interfere in his order. See Anil Kumar Goel vs. ITO [2007 (2) TMI 260 - ITAT LUCKNOW-A ] - Decided against revenue. - ITA No.382/LKW/2013,ITA No.526 & 720/LKW/2013 - - - Dated:- 24-7-2015 - Shri Sunil Kumar Yadav and Shri A.k. Garodia, JJ. For the Petitioner : Shri Anil Anand, Advocate For the Respondent : Smt. Swati Ratna, Sr. DR ORDER PER A. K. GARODIA, A.M. Out of this bunch of three appeals, there are two appeals of the revenue for A.Y. 2003 04 2005 06 and the remaining one appeal is filed by the assessee for A.Y. 2003 04. All th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 8377; 2.03 Lacs which was adjusted towards arrear demands by KESCO. Learned CIT (A) decided the issue against the assessee by holding that there is no dispute regarding the value of confiscated stock of ₹ 50,92,490/- for which only possession has changed but the right remains with the assessee only. Before us also, same argument is made without establishing that entire stock of 832.809 M.T. was auctioned for ₹ 2.03 lacs because on page 24 of the paper book, no quantity is mentioned and hence it is very much possible that this sale proceeds of ₹ 2.03 Lacs is for sale of only a small part of 832.809 M.T. and the remaining part is still unsold or was sold by the assessee prior to seizure. Moreover, this amount of ₹ 2.03 Lacs is said to have been adjusted against outstanding demand of KESCO of ₹ 71,21,300/-. If this demand of KESCO of ₹ 71,21,300/- or any part thereof is already accounted for in books, then the payment to KESCO is to reduce sundry creditor only and in that situation, sale proceeds of stock has to be considered as income only and the balance has to be considered as stock in absence of any evidence that entire stock was sold for ₹ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s order that purchase shown in the stock statement submitted to bank almost tallies with value reflected in books of accounts. He has also given this finding that books of accounts are not rejected and no other adverse circumstantial evidence is brought on record by the A.O. After making these observations, he has decided this issue by following this judgment of Hon ble Jurisdictional High Court rendered in the case of CIT vs. Khan Sirohi Steel Rolling Mills (Supra). Learned DR of the revenue could not controvert these categorical findings of CIT (A) and he could not show as to how this judgment of Hon ble Jurisdictional High Court rendered in the case of CIT vs. Khan Sirohi Steel Rolling Mills (Supra) is not applicable. Hence, we decline to interfere in the order of learned CIT (A) on this issue also. These grounds are also rejected. 13. As per Ground No. 6, the revenue is aggrieved for deletion of the addition of ₹ 18,96,399/- made by the A.O. on account of disallowance out of depreciation on plant machinery which as per the assessing officer were not put in to use during the period under reference. 14. Learned DR of the revenue supported the assessment order. H ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t was held that when the block of assets is being used in the relevant year, it is not relevant if some particular machine was not used. Hence, it is seen that the facts in that case are also totally different. In that case, the plant was operational but only a few machines were not used whereas in the present case, total block is idle because although it is claimed that some machines were used in course of trading operations, no evidence is brought on record in support of this contention. Because of these differences in facts, this judgment is also not applicable. 19. The next judgment is also the judgment of Hon ble Delhi High Court rendered in the case of CIT vs. Panacea Bitech Pvt. Ltd. (Supra). In this case, the facts were that the office was put to use but not full fledged use. Under these facts, it was held that depreciation is allowable because full fledged use of office is not essential. Hence, it is seen that the facts in that case are also totally different. Therefore, this judgment is also not applicable. 20. As per above discussion, it is seen that none of the judgments followed by learned CIT (A) is applicable in the present case. Moreover, this is admitted posi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e before the AO. 3. That the CIT(A) has erred in law and facts in ignoring that the impugned notice and assessment proceedings were in substance and effect in conformity with or according to the intent and purposes of the Act and being thus covered by Section 292B could not be invalidated. 4. The CIT(A) has erred in law and on facts in annulling the assessment order ignoring the provision of Section 124 of the Income-tax Act, 1961, whereby the assessee could not question the jurisdiction of the AO after expiry of the period prescribed. 5. The Ld. CIT(A) has erred in law and in fact in annulling the assessment order without appreciating the facts as submitted by the AO in his remand report dated 30.07.2013 before him. 6. The order of the CIT(A), Kanpur being erroneous, unjust and bad in law be vacated and the order of the AO be restored. 27. Learned DR of the revenue supported the assessment order and learned AR of the assessee supported the order of CIT (A). 28. We have considered the rival submissions. We find that return of income was filed on 30.10.2005. An additional ground was raised before CIT (A) contending that no notice u/s 143 (2) was serv ..... X X X X Extracts X X X X X X X X Extracts X X X X
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