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TMI Blog2023 (3) TMI 851X X X X Extracts X X X X X X X X Extracts X X X X ..... ng factually as well as legally and cannot be sustained. 2. At the outset, the Ld. counsel of the assessee referred to application for condonation of the delay in submitting the appeal. He submitted that order of the Ld. CIT(A) dated 16/02/2016 was received by the assessee company on 05/04/2016 and therefore appeal was to be filed before the ITAT latest by 03/06/2016. However due to health problems of the director Sh SS Hamid, he resumed office in the month of May 2016, and thereafter only the appeal could be filed on 21/06/2016. He referred to the affidavit filed by the Director of the assessee company. The Ld. counsel submitted that there is a reasonable and sufficient cause for delay in filing the appeal and it was not an intentional as the assessee is not benefiting in any manner by delay in filing appeal. The learned DR however objected for condoning the delay. 3. We have heard rival submission of the parties on the issue of condoning the delay in filing the appeal. In our opinion, due to medical reasons stated in the affidavit by the director of the assessee company, the assessee was prevented by sufficient cause and could not file the appeal on time. In the circumstances, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... emand draft. It was submitted by the assessee that burden was on the revenue authorities to prove that income sought to be taxed was in fact an income of the assessee. The assessee also explained that no such company in the name of XYZ private limited existed in the register of registrar of companies. However, the Ld. CIT(A) rejected the contentions of the assessee observing as under: 3.3. I have considered the outcome of survey conducted u/s. 133A of the Income-tax Act, 1961 on 04.03.2010, the findings of the Assessing Officer in assessment order, rival submission of the appellant and evidences on record, carefully. During the course of survey proceeding, it was found by the survey party that as per the profit & loss account as on 05.03.2010 generated from the computerized books of accounts, Net Profit was of Rs. 1,57,05,468/-, nevertheless Appellant had not paid any Advance-tax. When this information was extracted from the evidences created by the Appellant, Appellant was confronted with these facts. However, no convincing explanation was given by the Appellant at the time of survey. Mr. Sahir Siraj Hamid, the Director was examined and his statement on oath was recorded on 05.0 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o suppress the same, he has tried to advance "cooked-up story" after 05.03.2010. It can be seen from the reply to Question No. 13 of the statement dated 05.03.2010 that Appellant was explaining that this Net Profit of Rs. 1,57,05,468/- would be reduced after claiming depreciation and other expenses which were yet to be entered. It means some expenditure and depreciation was to be reduced whereas subsequently, Appellant has changed the stand and had tried to make believe that sales was inflated by Rs.81,07.050/- 3.5. Further, it is pertinent to mention that in response to the notice us. 142(1) of the Income-tax Act, 1961 dated 20.11.2012 appellant has submitted explanation dated 11.12.2012 stating "As per the survey dated 04.03.2010, the income-tax officer on his visit to our Studio realized that on this day my accountant was on leave, and due to that reasons the profit & loss account was shown at Rs.1.44 Crores. And after a couple of days hence when our Accountants joined back we once again went through our Books of Accounts and realized that the profit shown is actually not the real profit since many entries were not taken into account for e.g.like depreciation, provisions entry ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s applicable to the facts of the case. Therefore, in the background of above discussion of the fact and various references of the evidences, I also reach to the conclusion that additions so made by the Assessing Officer is correct, hence additions of Rs.81,07,050/- is sustained." 6. Before us, Ld. counsel of the assessee filed a paper book containing page 1 to 246 and also filed copy of bills which were impounded during the course of survey proceedings. 7. Both the grounds of the appeal of the assessee relate to the addition of Rs.81,07,050/-. The Ld. counsel of the assessee reiterated the submission made before the Ld. CIT(A) and further submitted that during the course of the survey even no bills or invoices in the name of XYZ Private Limited were found or impounded, which shows that only fictitious entries of the sales were made for increasing the turnover for the year under consideration. To support this contention, he also referred to the bills impounded, copy of which was obtained from the Assessing Officer through RTI application. The Ld. counsel also submitted that the effect that company XYZ Private Limited is a fictitious and non-existent entity, is evident from the r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... submitted that turnover of the assessee for the year under consideration was less (Rs. 2.51 crores) as compared to immediately preceding year (Rs. 4.43 Crores) due to the reasons of recession in the market, fall in sales of ready to shoot studios, all India strike by TV serial production Guild, strike by film Federation against theatre owners, major customers of the assessee did not shoot at the studio of the assessee in the year under consideration. 9.2 During the assessment proceeding, the assessee submitted the name of the said fictitious party was XYZ Private Limited. It was further submitted that there is no such company in the name of record of registrar of companies and therefore it supports the contention of the assessee of XYZ Private Limited being a fictitious entry. 9.3 In background of above facts, we find that firstly, the assessee during the course of the survey, brought to the notice of the income tax authorities, the figures of the profit worked out were on higher side. During the course of the survey proceedings, the accountant of the assessee was not available, and the director of the company cannot be expected to explain each and every entry of sales to the In ..... X X X X Extracts X X X X X X X X Extracts X X X X
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