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TMI Blog2021 (9) TMI 1537X X X X Extracts X X X X X X X X Extracts X X X X ..... is ex-facie contrary to the finding recorded in the order dated 02.05.2017. This would indicate that the Tribunal has not applied its mind while arriving at the conclusion. Tribunal being the last fact finding authority ought to have discussed the factual aspects, more importantly when the Assessing Officer has made efforts to discover the tax evasion, placing reliance on the incriminating materials seized and the statements of the relevant persons recorded. Instead of adjudicating on the challenge made by the Revenue, passing the orders to the effect of deciding the subject matter of the appeals filed by the assessee which were not before the Tribunal, amounts to perversity and suffers from patent illegality. The impugned orders lack application of mind and reasoning. Given the circumstances, we have no other option except to set aside the impugned orders and remand the matter to the Tribunal for reconsideration, keeping open all the rights and contentions of the parties sans answering the substantial questions of law. - THE HON BLE MRS.JUSTICE S.SUJATHA AND THE HON BLE MR. JUSTICE RAVI V. HOSMANI APPELLANTS: SRI K.V.ARAVIND, ADV. RESPONDENT: SRI M.THIRUMALES ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assessing officer on account of speed money claimed as labour charges in the books of accounts? 2. Whether on the facts and in the circumstances of the case, the Tribunal is right in law in deleting the disallowance of labour charges claimed as sub-contract payments by the assessee ignoring contradictory statements given by the assessee during appellate proceedings before the CIT(A) and factual investigations conducted by the CIT(A)? 3. Whether on the facts and in the circumstances of the case, the Tribunal is right in law in deleting disallowance of speed money claimed as labour charges through employee sub- contractors ignoring the evidence found during the course of search and investigations which suggested that the said expenses were not genuine? 4. Whether on the facts and in the circumstances of the case, the Tribunal is right in law disallowance of speed money claimed as labour charges to disguise payments made to port officials not authorized by law, ignoring the evidence found during the course of search action and post search investigations? 5. Whether on the facts and circumstances of the case, the Tribunal is right in law in deleting the disallow ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ficer which indeed was duly supported with material evidence. On the Miscellaneous Petitions filed by the assessee, the finding given by the Tribunal that no observation or finding was made with regard to the legality of payments shown in loose sheets goes contrary to the material on record and the same is perverse and factually incorrect. 7. Learned counsel for assessee would submit that on disallowance of expenditure towards speed money in the appeal filed by the assessee, CIT(A) has recorded that the Assessing Officer has not brought out any material to restrict the speed money expenses to Rs.26/- per metric ton. The Assessing Officer has merely relied upon the vouchers relating to one ship found at the time of the raid in 2011, applied the same rate to all assessment years under consideration which is not justified. Accordingly, the addition was deleted for the reason that the assessment cannot be reopened as it amounts to change of opinion. It was further observed by the CIT (A) that the Assessing Officer has also disallowed the amounts paid to the employees through sub-contractors which were accounted under the total speed money payment, 10% disallowance of the entire spee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... seizure and analysed the statements given by different persons namely Sri.Abdul Aziz, Accountant of the assessee Firm, Sri.Hemachandra Shetty, Manager of the assessee Firm, Sri.Mohammed Shariff, Supervisor of the assessee Firm, Sri. Mohammed Amin, Parner of the assessee Firm, Sri.B.Kunhi Ahmed, partner of the assessee firm vis- -vis the seized documents. It is also recorded that the Department has made several enquiries during the course of post-search investigation by recording the statement of some of the port-labourers under section 131 of the Act and collecting information from around 500 port labourers under section 133 (6) of the Act who have denied receipt of any amount from the stevedoring or C F agents. Speed money payments said to have been paid through the sub-contractors to whom the cheques were issued also got verified by recording statements of those sub-contractors under section 131 of the Act. Having extensively considered the incriminating materials discovered at the time of search and seizure and the statements of the relevant persons recorded, disallowed the expenditure claimed. While determining the quantum of speed money of Rs.26/- per ton against t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the parties sans answering the substantial questions of law. 11. The Tribunal is directed to club these matters along with the appeals filed by the assessee and shall take appropriate decision in accordance with law in an expedite manner. Hence, the following: ORDER Appeals are allowed in part. The impugned common order dated 02.05.2017 passed by the Tribunal in ITA Nos.1358/Bang/2015, 1359/Bang/2015, 1360/Bang/2015, 1361/Bang/2015, 1362/Bang/2015, 1363/Bang/2015 relating to the assessment years 2006-07, 2007-08, 2008-09, 2009-10, 2010-11, 2011-12 respectively and the common order dated 28.02.2018 passed by the Tribunal in M.P.No.194/Bang/2017 (ITA No.1358/Bang/2015), M.P.No.195/Bang/2017 (ITA No.1359/Bang/2015), M.P.No.196/Bang/2017 (ITA No.1360/Bang/2015), M.P.No.197/Bang/2017 (ITA No.1361/Bang/2015), M.P.No.198/Bang/2017 (ITA No.1362/Bang/2015), M.P.No.199/Bang/2017 (ITA No.1363/Bang/2015) relating to the assessment years 2006-07, 2007-08, 2008-09, 2009-10, 2010-11, 2011-12 respectively are set aside. The appeals are restored to the file of the Tribunal for re-consideration, keeping open all the rights and contentions of the parties. The Tribunal shall clu ..... X X X X Extracts X X X X X X X X Extracts X X X X
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