9911796707
TMI Blog2019 (4) TMI 1110X X X X Extracts X X X X X X X X Extracts X X X X ..... uld not be rejected outrightly and should be examined on merit and if no merit is found therein then only it can be rejected. AO has also stated that assessee has failed to establish that how the payment made to Saikrupa Minerals is related with the amounts paid in cash to Ashwathnarayan Singh Co. AO also says that ledger account of Saikrupa Minerals does not indicate payment of ₹ 52.23 Lakhs on a single day. In the absence of any narration against this amount of ₹ 52.23 Lakhs in the seized material, this is only an assumption of the AO that this is on account of cash payment but such assumption is not supported by the entry in the seized material. As per the ledger copy of Saikrupa Minerals appearing on page no. 69 of paper book, it is seen that amount of ₹ 57,41,404/- is credited to the account of this party in respect of Transportation Hire Charges for 7,794.340 MT @ ₹ 455/- per MT + 4,739.760 MT @ ₹ 465/- per MT. The total quantity comes to 12,534.100. This explanation of the assessee is acceptable particularly when there is no such narration in the seized material that this amount of ₹ 52.23 Lakhs noted on page no. 7 of the seized cash ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le Supreme Court in the case of AJITH JAIN reported in 260 ITR 80 and the Hon'ble Karnataka High Court in the case of C. RAMAIAH REDDY reported in 339 ITR 210 and consequently the impugned assessment order deserves to be cancelled. 3. Without prejudice to the above, the learned CIT[A] is not justified in upholding the addition of ₹ 92,07,500/- in respect of certain cash payments alleged to have been made by the appellant outside the books of accounts, which was erroneously offered in the return of income filed but, later on withdrawn and clarified in course of assessment proceedings under the facts and in the circumstances of the appellant's case. 4. The learned CIT[A] is not justified in upholding a further addition of ₹ 1,57,86,900/- in respect of certain cash payments alleged to have been made by the appellant outside the books of accounts, which was erroneously offered during the course of search on 15/02/2011 and later explained to be incorrect during the course of search proceedings themselves, under the facts and in the circumstances of the appellant's case. 5. Without prejudice to the right to seek waiver with the Hon'ble CCIT/DG, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not pressed. Regarding Ground No. 5 in A. Y. 2010 11 and Ground No. 3 in A. Y. 2011 12, he submitted these grounds are consequential. In respect of Ground No. 4 in A. Y. 2010 11, he submitted that on page nos. 60 and 61 of the paper book is the copy of statement recorded on oath u/s.131 of IT Act on 15.03.2011 from Shri Vivek .S. Hebbar, MD of the assessee company and in particular, our attention was drawn to question no. 3 and its reply. He submitted that this is admitted position of fact that as per this statement, MD of the assessee company has agreed for income from different sources and the same was offered for taxation to the extent of ₹ 2,49,94,400/- for Assessment Year 2010-11 and ₹ 113 Lakhs for Assessment Year 2011-12. Thereafter he drawn our attention to letter dated 29.03.2011 from assessee addressed to DDIT(Inv.), Hubli available on page no. 62 of the paper book and the statement u/s.131 of IT Act of Shri Vivek .S. Hebbar, MD of the assessee company recorded on 29.03.2011 copy available on pages 63 to 65 of paper book. He pointed out that in the letter dated 29.03.2011 available on page no. 63 of paper book, the disclosure made by the assessee as per ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt of Shri Vivek S. Hebbar, MD of the assessee company was recorded and copy of the same is available on pages 96 to 97 of paper book and in particular, our attention was drawn to question no. 4 and its reply. He also drawn our attention to copy of letter dated 11.03.2013 addressed to the AO during the course of assessment proceedings copy available on pages 98 to 105 of paper book. He submitted that in the light of these documents and arguments, Ground No. 4 of the assessee s appeal for Assessment Year 2010-11 should be allowed. 5. In respect of ground no. 3 for Assessment Year 2010-11 and ground no. 2 for Assessment Year 2011-12, he submitted that these two amounts involved in these two grounds in these two years of ₹ 92,07,500/- and ₹ 80 Lakhs respectively were included by the assessee in return of income filed by the assessee but later on, it was noticed by the assessee that these two amounts are not taxable because these are also appearing in the regular books of accounts. He placed reliance on the judgement of Hon'ble Karnataka High Court rendered in the case of Bhandari Metals and Alloys (P.) Ltd. vs. State of Karnataka as reported in 136 ITR 292 in suppor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s was not known to the assessee immediately. He submitted that in the present case, the claim of the assessee is not on the basis of any amendment in the law and therefore, this judgment is not applicable in the present case. He submitted that ground no. 3 in Assessment Year 2010-11 and ground no. 2 in Assessment Year 2011-12 should be rejected because the assessee cannot plead for reduction in the returned income on the basis of vague arguments. 8. We have considered the rival submissions. We find that ground no. 2 in Assessment Year 2010-11 is not pressed by ld. AR of assessee. Accordingly, this ground is rejected. We also find that ground nos. 1 and 6 in Assessment Year 2010-11 are general and ground no. 5 in this year is consequential in respect of charging of interest u/s. 234A, 234B and 234D of IT Act. Similarly in Assessment Year 2011-12, ground nos. 1 and 4 are general and ground no. 3 is consequential because the same is regarding charging of interest u/s. 234A, 234B and 234C of IT Act. Hence we hold that no adjudication is called for in respect of these grounds. 9. Now we are left with ground nos. 3 and 4 in Assessment Year 2010-11 and ground no. 2 in Assessment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... with ground no. 4 in Assessment Year 2010-11. The amount of ₹ 1,57,86,900/- being disputed by assessee as per this ground is sum total of entries on two pages of seized cash book i.e. on page nos. 7 and 41 available on pages 54 and 57 of the paper book. We reproduce the relevant portion of these two pages of the seized material from page no. 54 and 57 of the paper book which is reproduced by the AO also on page nos. 7 and 10 of the assessment order. Cash Book Page 7 : Particulars as found in Cash Book Amount 1) 10,000.32 X 950 9,500,304.00 1144.35 X 850 972,697.00 10,473,001.00 Ch Payment 5,250,000.00 Balance 5,223,000.00 5,223,000.00 The seized page 41 reads as under; Ashwathrtarayan Singh Co Mahalaxmi 16,593-290 12,000-000 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... part. The assessee has also explained that transportation relating to this cargo was carried out by Sri Saikrupa Minerals and as against estimation of ₹ 52.23 Lakhs as mentioned in the seized book regarding transportation of this cargo, actual transportation varied based on the various transportation rates based on the circumstances at the time of transportation and the bill in this regard was produced by M/s. Saikrupa Minerals vide B No 2 dt 10.08.2009 of ₹ 57,41,404/- which is including this quantity delivered 10,000 MT and the payment against this bill was made by cheque of ₹ 50,94,456/- and amount of advance paid to them was also adjusted. This argument of assessee has been rejected by the AO on this basis that the seized material shows entries only in respect of purchase of iron ore and there is no entry towards transportation charges. In our considered opinion, if we go by the entry in the seized material only, then there is no such narration against this amount of ₹ 52.23 Lakhs that this much amount was paid by cash although for the payment of ₹ 52.50 Lakhs, it is specifically stated that it is paid by cheque. This is admitted position of fac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ,62,014/- and ₹ 91,41,806/- respectively with a total of ₹ 176,03,820/-. Copy of ledger account of this party in the books of the assessee is available on page 68 of the paper book and as per the same, these two bills are accounted for and there is a payment of ₹ 1 Crore by cheque on 22.03.2010. It was submitted by the learned AR of the assessee in his oral arguments before us that because of this on account payment on 22.03.2010, the figures of payment on 29.03.2010 in the seized material was struck off because no such payment was actually made in addition to this payment by Cheque of ₹ 1 Crore. We find merit in these submissions because we find that the amount of ₹ 105,63,900/- against date 29.03.2010 with narration Payment was struck off and therefore, we enclose the photo copy of this page 41 of the seized material as available on page 57 of the paper book. In our opinion, this amount cannot be considered for addition in view of these facts that the amount in question is struck off in the seized material itself and the reasons about such striking off are explained by the assessee being on account payment by cheque of ₹ 1 Crore and no furthe ..... X X X X Extracts X X X X X X X X Extracts X X X X
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