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TMI Blog2014 (7) TMI 1248X X X X Extracts X X X X X X X X Extracts X X X X ..... undisclosed investment made in unaccounted sales, whereas in present case, the dispute was only of genuineness of 'cash sales' made in books, to unidentified parties? c) That whether the Tribunal was justified in reversing the most cogent findings of learned CIT(A) to the effect that when the sales were not proved to be outside the books or unaccounted, and even the purchases and closing stock were not disputed, the impugned sales could not be disbelieved? d) that whether in the facts and circumstances of the case, the learned Tribunal was correct in law to hold that under rule 27 of the ITAT Rules, 1963, it was not open to the respondent to claim any fresh relief denied by CIT(A) and which is not part of the grounds of appeal raised by the revenue? e) That in the facts and circumstances of the case, whether the learned Tribunal was correct in law to hold that the factual issues could not be raised under Rule 27 of the ITAT Rules, 1963? f) Whether the order of the Tribunal is legally unsustainable and bad in law and perverse?" 2. Briefly, the facts necessary for adjudication of the controversy involved, as narrated in the appeal may be noticed. The appellant-asses ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s, 1963 (in short, "the Rules") before the Tribunal to assail the order passed by the CIT(A) on the grounds decided against it. Vide order dated 30.8.2013, Annexure A.3, the Tribunal allowed the appeal of the revenue and dismissed the application filed by the assessee as not maintainable. Hence the present appeal by the assessee. 3. Learned counsel for the appellant-assessee submitted that no addition could have been made on account of unexplained credit of Rs. 37,30,300/-in the profit and loss account of the assessee. It was urged that there was no dispute regarding purchase etc. and in such circumstances, addition made by the Assessing Officer and sustained by the Tribunal was uncalled for. It was further contended that the GP rate of 5% on enhanced sales of Rs. 2.5 crores had been applied by the Assessing officer by rejecting the books of account and in such circumstances, separate addition on account of unexplained cash credit of Rs. 37,30,300/- in the books of account could not have been made. Support was drawn from judgments in CIT v. Abdul Rahman Sait, (2008) 306 ITR 142 (Mad.), Dahod Sahakari Kharid Vechan Sangh Limited v. CIT, (2006) 282 ITR 321 (Guj.), CIT vs. Dehati Coo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... icer scrutinized each of the sale bills and came to the conclusion that there were four categories of sales made by the assessee as tabulated in the chart. The AO has accepted the category of sales under Sr.No.(ii) to (iv). However, in respect of Sr. No.(i), it was observed that the cash sales of Rs. 37,30,300/-were in respect of lot sales made in cash without mention of any quantity of goods sold nor the name/s of the party/s to whom sold as per cash memo Nos. 1- lot, to No.3 - lot sale, in the month of April 2004. The AO noted that there was no mention of quantity of goods sold which reflect that no actual sale of goods as per the said cash memos had been made by the assessee, another show cause notice was issued to the assessee that why said receipt in cash be not treated as Income from undisclosed sources introduced in the garb of cash sales ingenuinely made. The reply of the assessee was that the said sales were made with the intention to liquidate the stocks which were piled up due to non procurement of export order and as the quality of the goods had started deteriorating, the sales were made to realize the funds from such stocks. The assessee claimed that it had stock of Rs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... originally declared to the sales tax department and as in the revised return of Income was claimed to be on account of sales made in lots vide 14 lot sale bills No.1 - lot sale to 14 - lot sales in April 2004 amounting to Rs. 1,01,26,294/- which the assessee claims that by omission was not declared in the original sales tax return. Sales totalling Rs. 63,95,994/- were supported by bills without mentioning of any quantity of goods sold but with names of parties to whom sales were effected in April 2004 itself and the same were accepted by the Assessing Officer. The dispute is in relation to the three sales bills totalling Rs. 37,30,300/- under which cash sales were made in lots without mention of any quantity sold and/or name of the parties to whom sold. Details of the sales made by the assessee vide three bills are as under:- Sr.No. Category Amount 1. Cash sales in lots without mention of any quantity sold and names of the parties to whom sold as per the following cash memos (a) Cash memo No. 1 lot sale dated 1.4.2004 after consideration goods returns with net of such sales(1035000- 802000). Rs. 233000/- (b) Cash memo no.2-1 lot sale dated 5.4.200 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ow the said goods were transported and even the bills do not talk of the requisite details of GR numbers. 15. The paper book reflects another bill No.07 - lot dated 6.4.2004 which is placed at page 37 of the paper book in such details in which the quantity is mentioned at 12810@ Rs. 10/- sold for Rs. 1,28,300/-. Other lot sales made by the assessee have been accepted in view of the names of the parties being available and the same are not in dispute. However, in respect of first three bills i.e. 1 to 3 lot sales, no such details have been filed by the assessee. Further, the assessee had failed to declare the said sales in the return of income filed by it before the sales tax authority and only after the information was received by the Assessing officer, revised returns were filed before the sale tax authority including the said cash lot sale as its turnover. The assessee against Bill No. 1- lot sale claims to have received return of goods and also cash transaction in this regard. Where basic details i.e. name of the party is not available with the assessee, the said return of goods cannot be accepted. In view thereof, no reliance can be placed on the sale tax return filed by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntions and perused the record. Under the provisions of section 253 of the Income Tax Act, the procedure of appeals to the Appellate Tribunal is provided. Both the assessee and the Commissioner are empowered to appeal against the orders passed by the lower authorities under various provisions of the Act as enumerated in sub section (1) and sub section (2) of section 253 of the Act. Under sub section (3), time limit for filing the appeal before the Tribunal is provided under sub section 4 to section 253 of the Act, the provisions lay down the procedure of filing memorandum of cross objections by the Assessing officer or the assessee, as the case may be, on the receipt of the notice that an appeal against the order of the Dy. Commissioner of Income Tax or CIT (Appeals) had been preferred under sub section (1) or sub section (2) of section 253 of the Act. It is further provided under sub section (4) that the said memorandum of cross objection can be treated as an appeal presented within the time specified in sub section and would be disposed of by the Tribunal accordingly. Under sub section (6) of section 253 of the Act, the appeal is to be filed in prescribed form and verified in the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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