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TMI Blog2019 (1) TMI 859X X X X Extracts X X X X X X X X Extracts X X X X ..... ity "AY") 1995-96 and 1996-97 under Section 143(3); lest the limitation set in. Two appeals each by the Revenue and the assessee arise from such regular assessments also. The appeals of the assessee are numbered as I.T.A.Nos.162/2015 and 163/2015. The appeals of the Revenue are numbered as I.T.A.Nos.6/2012 and 60/2012. Common questions arise in the above appeals, since the individual assessments as also the block assessments have been completed on the basis of the materials recovered on search. 2. On facts, we have to notice that the assessee had filed returns for AY 1995-96 on 31.10.1995 and for AY 1996-97 on 30.10.1996. The return for AY 1995-96 was selected for verification under Section 143(2). The assessee though responded to the notice, dragged the matter on one pretext or the other. A survey under Section 133A of the Act was carried out, at the business premises of the assessee, i.e., at the Head Office at Thiruvananthapuram and Branch Offices at Peroorkada and Vattiyoorkavu; on 19.12.1996. The discrepancies and anomalies in the accounts as also the corrupt business practices revealed huge unaccounted business and systematic suppression of income. The discrepancies noticed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... de order under Section 144 read with Section 158BC(c) dated 26.3.2002. 5. The assessee filed appeals before the Commissioner of Income Tax from the regular assessments of AY 1995-96 and AY 1996-97 with delay of 3292 days and 1643 days respectively. The first appellate authority, after condoning the delay, adjudicated the assessee's appeals. The block assessment was also appealed by the assessee before the Commissioner of Income Tax. In block assessment, the questions arising were the following: "(i)Whether the assessee was liable to be treated as an association of persons as distinguished from a firm ? (ii) Whether the huge deposits found in the books of accounts without the details of the depositors could be added as unaccounted credits under Section 68 ? (iii)Whether the addition of 18% interset on gold loans in addition to the 18% disclosed in the books of accounts was proper? 6. On the question of Association of Persons, the Commissioner of Appeals found on the evidence recorded by the A.O. that there is no ground for treating the assessee as a firm. The assessee had not produced any registration as a partnership firm and in such circumstances, the evidence and f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... als), though confirmed, specific directions were issued by the Tribunal as to how the preliminary list of creditors and any subsequent list as approved by the Civil Court are to be taken into account. With respect to the addition made of 18% towards the interest received on the gold loans not disclosed in the books of accounts, the Tribunal based on various evidences before the A.O., held that the Revenue's case would stand un-impeached. The dis-allowance of interest on deposits were also found to be monies diverted and withdrawn from the business by the partners, in proof of which substantial evidences, direct as well as corroborative, were found during the search. These evidences, according to the Tribunal, stood un-controverted. Even then, the said issues were restored to the files of the first appellate authority, since there was an absence of a speaking order by the first appellate authority. 8. The following questions, as reframed by us, arise insofar as the block assessments are considered in the assessee's appeal: i) Whether the Tribunal was correct in having affirmed the status of the assessee as Associations of Persons ? ii) Ought not the Tribunal have confir ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rship deed filed, which was duly registered for at least four entities constituted with effect from 01.04.1996. The A.O. had called for the details of the link between the said four entities and the four others constituted as a partnership. The assessee had failed to produce any such evidence. The registration as a firm, inclusive of all the entities carrying on business in common, being not established by the assessee, the compelling evidence as recovered under the survey and seizure would commend us also to find that the status of the assessee is one of Association of Persons. We do not think any question of law arises from the said aspect, since the lower authorities had found such status on the strength of the evidence recovered and on the basis of facts. We, hence, decline to answer the said question raised in the appeal of the assessee and uphold the order of the Tribunal affirming the finding of the lower authorities. 12. The other two questions remaining in the assessee's appeals and that raised in the Revenue's appeals are inter-connected. The assessee had sought for sustaining the order of the first appellate authority, insofar as deletion of the cash credit unde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the creditors shown therein were the real depositors with the assessee. 15. We find that the preliminary list of creditors in the insolvency proceeding does not at all commend to us, as a substantiating material to interfere with the assessment proceedings. We also notice the order of the District Court in appeal, wherein it is specifically indicated that there was a scheme of composition filed and approved by the Civil Court. The order of adjudication of the trial court also stood annulled in terms of Sections 38 and 40 of the Insolvency Act. Hence, what has been done by the assessee is to file a scheme of composition and effect pro-rata distribution of its assets to those respondents included in the scheme of composition. This cannot lead to any interference of the assessment order under the income tax act. The assessee, at the time of search nor later after issuance of notice produced any substantiating materials as to the genuineness of the depositors. 16. We herewith extract the order of the C.I.T.(Appeals), which was extracted by the Tribunal also, as follows: "I therefore hold that the list of depositors approved by the Civil Court has to be taken as genuine and th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... delay respectively of 1676 and 1683 days. Having found the list of creditors in the insolvency petition to have no bearing insofar the assessment proceedings under the I.T.Act, we are of the opinion that the remand order is erroneous. The insolvency proceeding eventually was concluded with a composition scheme. We also have found that the Tribunal itself on the basis of the facts found the deletion of the cash credits by the first appellate authority to be bad. In such circumstances, we answer the questions raised herein above both in the appeals of the assessee and the Revenue in favour of the Revenue and against the assessee. We restore the assessment order with respect to the addition of cash credits under Section 68. 19. On the question of interest on gold deposits as also the expenditure by way of interest on deposits, we find the Tribunal having affirmed the order of the A.O. on facts and evidences, which were before the A.O. as revealed from the survey and seizure. As in the earlier issue, we feel that the Tribunal ought not have remanded the issue, especially having found compelling evidence to substantiate such additions made. The Tribunal had noticed that the Cashier si ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mpression that what was to be examined was only a question of law; while the facts were totally ignored as reflected from the materials available before the A.O. by way of the sworn statements and other documents. The books of accounts failed to stand the test of verification, especially with reference to the direct and indirect evidence in the possession of the Revenue in respect of the business/financial transactions of the assessee. The business expenditure whatever there be, stood already claimed and allowed in the regular assessments and hence there could be no further claim of expenditure by way of interest paid on deposits. True, the Tribunal found that the C.I.T.'s (Appeal) order was not speaking. However, when the Tribunal had gone into the evidences, as revealed from the survey and search, which it was competent to do, as the last fact finding authority, we are of the opinion that there was no warrant for a further remand to the A.O. 22. The C.I.T.(Appeals) having found the books of accounts to be genuine without any discussion thereon, the order has to be set aside. However, the Tribunal having looked into the facts and found the books of accounts to be not worthy o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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