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TMI Blog2017 (9) TMI 306X X X X Extracts X X X X X X X X Extracts X X X X ..... sis of the record and relevant material was available with them. There is no need to discuss the same being the CIT(A) has already discussed the matter at length above.Verification is yet to be done by the AO. Nothing distinguishable has produced before us to deviate the finding of the CIT(A) on this issue. Therefore, we decided this issue in favor of the assessee. - I.T.A. Nos.4621/M/2013 And 4622/M/2013, I.T.A. Nos.4440/M/2013 & 441/M/2013 - - - Dated:- 29-8-2017 - SHRI R.C. SHARMA, AM AND SHRI AMARJIT SINGH, JM For The Assessee : Shri A.L. Sharma (SR,AR) For The Department : Shri Ram Tiwari (SR AR) ORDER PER AMARJIT SINGH, JM: The above mentioned appeals have been filed by the revenue as well as assessee against the different order passed by the Commissioner of Income Tax (Appeals)-39, Mumbai [hereinafter referred to as the CIT(A) ] relevant to the assessment years1997-98, 1998-99. ITA NO.4621/M/2013:- 2. The assessee has filed the present appeal against the order dated 13.03.2013 passed by the Commissioner of Income Tax (Appeals)-39 Mumbai, [hereinafter referred to as the CIT(A) ] relevant to the assessment year 1997-98. 3. The asses ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d demand draft/pay order to the Naptha dealers. The assessee claimed that he used to get a fixed commission on the value of the bills. The tanker load of the Naptha will directly and clandestinely sold to the petrol pump owners for adulteration and the owners pay the price of the tanker in cash to the Naptha dealers. On receiving the information about the activity, the business premises of the assessee was covered u/s 133A by the Investigation Wing of the Income Tax Department on 24.09.1998. Number of note books, diaries, newspaper, register, etc., were identified and subsequently impounded u./s 131(3). Subsequently, action u/s 132 of the Act was also carried out in the cases of petroleum products dealer such as Thakkar Group and Pilot Vijan Group. In this connection Shri Naresh B vora was detained in the prison as per the orders of the District Collector Gujarat. Since, the Naresh B Vora was not given an opportunity therefore, direction was given to pass the order afresh after giving an opportunity being heard to assessee as well as Naresh B Vora. Thereafter, in compliance to the direction of the Tribunal, the order was passed assessing the total income to the tune of ₹ 1,25 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd in law, the CIT(A) erred in deleting the addition on account of 30% of opening capital ignoring the fact that he assessee did not furnish any evidences to explain the opening capital and AO had given credit @70% of the opening capital keeping in view the fact that the assessee was into the business and an income tax assesse for several year. 4 The Appel1antt.v to leave to add, to amend and / or to alter any of the grounds of appeal, if need be. 5. The appellant, therefore, prays that on the grounds stated above, the order of the CIT(A)-39, Mumbai may be set aside and that of the Assessing Officer restored. 11. The facts of the present case are quite similar to the facts of the case as narrated in the above mentioned appeal no. 4621/M/2013 above because of the same year, therefore, there is no need to repeat the same. ISSUE NO.1:- 12. Under this issue the assessee has challenged the confirmation of this fact by CIT(A) that the cash deposits amounting of ₹ 2,13,83,250/- has been considered in the hand of Naresh B Vora therefore the same is not liable to be taxable again. The finding of the CIT(A) in this regard is hereby mentioned below.:- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e, there is no need to repeat the same. Factual position is also not in dispute rather the assessee has challenged the addition to the tune of ₹ 3,81,367/- in his appeal ITA No.4621/M/2013 which has been allowed and remanded to the AO for verify fact about this fact whether the said amount has already been taxed or considered in favour of Naresh B Vora or not. The present appeal of the revenue did not disclose any fact that the CIT(A) has wrongly deleted the said addition. Accordingly, this issue is decided against the revenue. ISSUE NO.2:- 14. Under this issue the revenue has challenged the finding of the CIT(A) that the sale of ₹ 45,18,575/- relates to M/s. Galaxy Plast-O- chem, a proprietary concern of Shri Naresh B Vora and was not having any concern with the assessee. Before going further it is necessary to advert the finding of the CIT(A) on record.:- I have considered the matter. From a reading of the submission as made by the appellant it is observed that what the appellant was trying to explain was that the noting in the said loose paper is with reference to the fictitious transactions entered into with a naptha quota holders. It is observed fro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as on 1.3.1996 at ₹ 11,31,56/-, thus there is a difference of ₹ 23,584/- It is held that it is this difference which is to be brought to tax. Thus, as against the addition of ₹ 3,39,468/- an addition of ₹ 23,584/- is sustained. The appellant gets relief of ₹ 3,15,884/-. 17. The above said matter of controversy was decided by CIT(A) on the basis of the peak of account maintained by the assessee. The capital account of the assessee as on 31.03.1996 was to the tune of ₹ 11,07,976/-. Whereas the opening balance was to the tune of ₹ 11,31,56/- as on 01.03.1996 the only difference was to be found of ₹ 23,584/- and addition on this account was sustained by the CIT(A). we found no tangible material on record to which it can assumed that the CIT(A) has wrongly deleted the said addition therefore, in the said circumstances we confirm the order of the finding of the CIT(A) on this issue. Accordingly, this issue is being decided in favour of Assessee. ISSUE NO. 4-5:- 18. These issues are formal in nature which nowhere required any adjudication. 19 In result appeal filed by the Revenue is hereby ordered to be dismissed. I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... CIT(A) ] relevant to the assessment year 1998-99. 27. The revenue has raised the following grounds:- 1. On the facts and circumstances of the case and in law, the CIT(A) erred in holding that the Pooja Industrial Corporation is operated by Shri Naresh B Vora and the said concern is no way connected with the assessee, thereby deleting the addition of ₹ 55,130/- @ 4% ₹ 13,78,260/- 2. On the facts and circumstances of the case and in law, the CIT(A) erred in holding that the Pooja Industrial Corporation is operated by Shri Naresh B Vora and the said concern is no way connected with the assessee, thereby deleting the addition of ₹ 3,46,249/- made by the AO u/s 68 of the Act. 3. On the facts and circumstances of the case and in law, the CIT(A) erred in holding that the entries in impounded item No., A-15 pertains to sale of chemicals SBPS and not sale of Naptha unlike held by the AO. 4. The Appellant craves to leave to add, to amend and/ or to alter any of the grounds of appeal, if need be. 5. The appellant, therefore, prays that on the grounds stated above, the order of the CIT(A)-39, Mumbai may be set aside and that of the AO resto ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ow.:- I have considered the matter. It has already been held as a fact that the assessee/appellant is in no way connected with Pooja Industries Corporation. That being so he is not liable to explain the cash deposits found therein. Further, as held in the case of Shri Sudhir Vora, for the captioned year, the appellant and his brother were providing hawala entries in return for commission at a pre-determined rate. Hence what is assessable is only the commission from the said deposits. As a matter of record, in the assessment of Shri Naresh Vora, the total deposits considered in h is hands is ₹ 20,79,04,537/- on which commission income has already been assessed in his hands. For the said reason, the AO erred in bringing to tax sum of ₹ 3,46,429/- u/s 68 of the act in the hands of the appellant. The addition is deleted. 32. No distinguishable of material has been produced before us to deviate the finding of the CIT(A) on this issue being all the amount has been assessed in favour of the Shri Naresh B Vora. No material of any kind has been produced before us to which it can be assumed that the said amount in question is belonging to the assessee, therefore, is li ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... huge profit margins, the appellant himself would have dealt with the same commodity, without any evidence on record. Therefore, the addition of ₹ 7,99,680/- is to be deleted and is accordingly deleted. However, based on the working as provided by the appellant and as extracted above, the AO may verify whether the profit of ₹ 4,44/- per tanker from the business of SPBS has been assessed to tax. 34. In view of the said finding of the CIT(A) we noticed that CIT(A) has already directed the AO to verify the profit of ₹ 4.440/-per tanker from the business of SPBS which has been assessed to tax. The finding of the CIT(A) is on the basis of the record and relevant material was available with them. There is no need to discuss the same being the CIT(A) has already discussed the matter at length above.Verification is yet to be done by the AO. Nothing distinguishable has produced before us to deviate the finding of the CIT(A) on this issue. Therefore, we decided this issue in favour of the assessee 35. In the result, the appeals filed by the assessee are hereby allowed and appeal filed by the Revenue is herby ordered to be dismissed. Order pronounced in the ope ..... X X X X Extracts X X X X X X X X Extracts X X X X
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