Income Tax Appellate Tribunal - Jaipur
Anupam Marbles Pvt. Ltd., vs Acit, Ajmer on 7 July, 2017
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IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHES, JAIPUR
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BEFORE: SHRI KUL BHARAT, JM & SHRI VIKRAM SINGH YADAV, AM
vk;dj vihy la-@ITA No.922/JP/13
fu/kZkj.k o"kZ@Assessment Year : 2009-10
Anupam Marbles Pvt. Ltd., E- cuke The ACIT, Circle-1, Ajmer.
201, RIICO Industrial Road, Vs.
Madanganj-Kishangarh.
LFkk;h ys[kk la-@thvkbZvkj la-@PAN No.: AABCA5204A
vihykFkhZ@Appellant izR;FkhZ@Respondent
vk;dj vihy la-@ITA No.923/JP/13
fu/kZkj.k o"kZ@Assessment Year : 2009-10
Jain & Jain Stones Pvt. Ltd. cuke The ACIT, Circle-1, Ajmer.
Jaipur Bye-pass Road, RIICO Vs.
Industrial Road, Madanganj-
Kishangarh.
LFkk;h ys[kk la-@thvkbZvkj la-@PAN No.: AABCJ3147P
vihykFkhZ@Appellant izR;FkhZ@Respondent
fu/kZkfjrhdh vksj ls@Assessee by : Shri K.C. Moondra &
Shri Mukul Moondra (C.A.)
jktLo dh vksj ls@Revenue by : Smt Neena Jeph (JCIT)
lquokbZ dh rkjh[k@Date of Hearing : 10/04/2017
?kks"k.kk dh r kjh[k@Date of Pronouncement: 07/07/2017.
vkns'k@ORDER
PER SHRI VIKRAM SINGH YADAV, A.M.
These are two appeals filed by the respective assessees against the consolidated order of Ld. CIT(A), Ajmer dated 31.10.2013 for A.Y. 2009-10 ITA No. 922&923/JP/13 Anupam Marbles Pvt. Ltd. Vs. ACIT dealing with both the assessees wherein the respective assessees have taken following grounds of appeal:-
ITA No. 922/JP/13"1. Ld. Commissioner of Income Tax (A) erred in law in rejecting the ground relating to the jurisdiction as assessment order was passed without lawful jurisdiction and without getting the question of jurisdiction decided u/s 124.
2. A team of I.T. Officials including un-empowered officials/persons conducted survey against the appellant-company in very unlawful manner and entire survey proceeding was carried out in completely unlawful manner with fabrication and forgery and I.T. Officials succeeded in getting surrender of undisclosed income of Rs. 89,34,271/- by force, fabrication, forgery and black-mailing and therefore, entire survey proceeding and entire consequential assessment proceeding should be held unlawful and assessment order based on such unlawful survey proceeding should be quashed.
3. Ld. Commissioner of Income Tax (A) erred in law in confirming additions made by Ld. A.O. on the basis of unlawful surrender obtained during the survey proceeding U/s 133A on account of completely false unsecured loans of Rs. 80,30,000/- because these unsecured loans are completely creation, fabrication of I.T. Officials including authorized officials/persons.
4. Ld. Commissioner of Income Tax (A) erred in law in confirming additions made by Ld. A.O. on the basis of unlawful surrender obtained during the survey proceeding u/s 133A on account of excess stocks of Rs. 5,26,432/-( 5,24,951+1,481/-) because complete inventorisation was made on the back of directors of appellant as per sweet will and suitability of I.T. Officials including unauthorized officials. The entire proceeding u/s 133A was unlawful, arbitrary and fabricated.
5. Ld. Commissioner of Income Tax (A) erred in law in confirming additions made by Ld. A.O. on the basis of unlawful surrender obtained during the survey proceeding u/s 133A on account of excess cash of Rs. 3,77,839/- because complete inventorisation of cash was made on the 2 ITA No. 922&923/JP/13 Anupam Marbles Pvt. Ltd. Vs. ACIT back of directors of appellant as per sweet will and suitability of I.T. Officials including unauthorized officials. The entire proceeding u/s 133A was unlawful, arbitrary and fabricated."ITA No. 923/JP/13
"1. Ld. Commissioner of Income Tax (A) erred in law in rejecting the ground relating to the jurisdiction as assessment order was passed without lawful jurisdiction and without getting the question of jurisdiction decided u/s 124.
2. A team of I.T. Officials including un-empowered officials/persons conducted survey against the appellant-company in very unlawful manner and entire survey proceeding was carried out in completely unlawful manner with fabrication and forgery and I.T. was carried out in completely unlawful manner with fabrication and forgery and I.T. Officials succeeded in getting surrender of undisclosed income of Rs. 61,31,878/- by force, fabrication, forgery and black-mailing and therefore, entire survey proceeding and entire consequential assessment proceeding should be held unlawful and assessment order based on such unlawful survey proceeding should be quashed.
3. Ld. Commissioner of Income Tax (A) erred in law in confirming the additions made by Ld. AO on the basis of unlawful surrender obtained during the survey proceeding u/s 133A on account of completely false unsecured loans of Rs. 45,00,000/- because these unsecured loans are completely creation, fabrication of I.T. Officials including unauthorized officials/persons.
4. Ld. Commissioner of Income Tax (A) erred in law in confirming the additions made by Ld. AO on the basis of unlawful surrender obtained during the survey proceeding u/s 133A on account of excess stocks of Rs. 10,10,779/- + 23,575/- because complete inventorisation was made on the back of directors of appellant as per sweet will and suitability of I.T. Officials including unauthorized officials. The entire proceeding u/s 133A was unlawful, arbitrary and fabricated.
5. Ld. Commissioner of Income Tax (A) erred in law in law in confirming the additions made by Ld. AO on the basis of unlawful surrender 3 ITA No. 922&923/JP/13 Anupam Marbles Pvt. Ltd. Vs. ACIT obtained during the survey proceeding u/s 133A on account of excess cash of Rs. 5,97,526/- because complete inventorisation of cash was made on the back of directors of appellant as per sweet will and suitability of I.T. Officials including unauthorized officials. The entire proceeding u/s 133A was unlawful, arbitrary and fabricated."
2. Both these appeals involve identical facts and grounds of appeal and arise out of the common order of the ld CIT(A), the same were accordingly heard together and disposed off by this consolidated order. With the consent of both the parties, ITA No. 92/JP/13 relating to M/s Anupam Marbles Pvt Ltd was taken as the lead case at the start of the hearing and contention and arguments of both parties were heard and written submissions considered and the grounds of appeal are being disposed off as per discussion in the succeeding paragraphs.
3. In ITA No. 922/JP/13, in its first ground of appeal, the assessee has challenged the jurisdiction of the Assessing Officer to pass the assessment order without getting the question of jurisdiction decided u/s 124 of the Act. Briefly the facts of the case are that return income declaring loss of Rs. 20,87,290/- was filed by the assessee on 28.09.2009. Prior to the filing of the return of income, a survey u/s 133A was conducted at the business premises of the assessee on 18.02.2009. The case was subsequently selected under compulsory scrutinyon the basis of survey conducted u/s 133A of the Act and notice u/s 143(2) was issued by ITO, Kishangarh dated 23.08.2010 which was duly served upon the assessee on 26.08.2010. The case was subsequently transferred from ITO, Kishangarh to ACIT, Circle-1, Ajmer and afresh notice u/s 143(2) and 142(1) was issued on 01.08.2011.
4. The main contention of the ld. AR is that ITO, Kishangarh had no jurisdiction over the appellant for issuing notice u/s 143(2) as loss in the 4 ITA No. 922&923/JP/13 Anupam Marbles Pvt. Ltd. Vs. ACIT return of income was more than Rs. 5,00,000/- and the proceedings so initiated u/s 143(2) is without jurisdiction and the same cannot be sustained in law. We now refer to the relevant findings of the ld. CIT(A) which are under challenge before us and also to examine how he has dealt with the similar contentions which have been raised before him. The relevant findings of the ld. CIT(A)are reproduced as under:-
"12.5 I have considered the contention of the appellant as well as the assessment order. It is seen that originally the jurisdiction of the case was with the ITO Kishangarh. The assessee's objection is against the issue of notice u/s 143(2) dated 23.08.2010 by ITO Kishangarh. However, objection is not acceptable as the assessee's original jurisdiction remained with the ITO Kishangarh along with the PAN number of the assessee. The case was selected under scrutiny through CASS. The notices are to be issued by the AO's having PAN in his jurisdiction as per the Board's guidelines. Subsequently, the case has been transferred to the ACIT Circle-1 in view of loss of more than Rs. 20 lac. The comments by the AO in the remand report make the issue clear. The instructions are relating to the selection of cases in the scrutiny by the concerned AO's. In any case, as the original jurisdiction of the assessee was with ITO Kishangarh, there cannot be any objection to the issue of the notice by the concerned AO till the case is transferred to some other AO. From above sequence of events, it is apparent that the ITO Kishangarh had the valid jurisdiction over the case when the notice u/s 143(2) dated 23.08.2010 was issued to the assessee.
This ground of appeal is accordingly rejected."
5. We now refer to various contentions raised by the ld AR during the course of hearing and also the written submissions which have been filed in support of the said contentions. The ld. AR has submitted that the appellant received a notice u/s 143(2) dated 23.08.2010 from Income Tax Officer, Kishangarh against which appellant filed an objection dated 23.09.2010. Perhaps, due to this objection, appellant's case was transferred to Asstt.
5ITA No. 922&923/JP/13 Anupam Marbles Pvt. Ltd. Vs. ACIT Commissioner of Income Tax, Circle-1, Ajmer as further notices were sent by Ld. ACIT, Circle-1, Ajmer and assessment was also completed by Ld. ACIT, Circle-1, Ajmer.
5.1 It is apparent that appellant's returned income/loss was more than Rs. 5 Lacs (Rs. 20,87,290/-) and therefore, the Incometax Officer, Kishangarh had no jurisdiction over the appellant even for issuing notice u/s 143(2) and therefore, the proceeding so initiated u/s 143(2) by Ld. I.T.O., Kishangarh was without jurisdiction and therefore, the succeeding proceedings u/s 143(3) is also without jurisdiction and unlawful.
5.2 As far as comments of ld. AO in remand report before Ld CIT(Appeals) is concerned, appellant submits as under:-
(a) Copies of referred Annexure-A to D were neither provided to the appellant by the Ld A.O. nor by Ld CIT(Appeals) despite appellant's written submission.
(b) As mentioned by ld. AO, there is no guidelines of CBDT as per knowledge of the appellant which empowers the ITO Kishangarh to issue notice u/s 143(2) in a case where returned income/loss was more than 5.00 lacs and if there was any such guidelines, Ld. AO should have been asked to provide copy of such guidelines prevailing on the date of issuance of notice but Ld. CIT(Appeals) instructed nothing which implies that there was no such guidelines.
(c) Lying of PAN with ITO Kishangarh, does not empower him to issue notice u/s 143(2) in a case where returned income/loss was more than 5.00 lacs and if there was any such guidelines, Ld. AO should have been asked to provide copy of such guidelines prevailing on the date of issuance of notice but Ld. CIT(Appeals) instructed nothing which implies that there was no such 6 ITA No. 922&923/JP/13 Anupam Marbles Pvt. Ltd. Vs. ACIT guidelines. More ever, jurisdiction runs as per provisions of sec. 124 and not as per location of PAN.
(d) Ld. CIT (Appeals) also just affirmed and repeated the contents of Remand Report of the AO without specifying the so called 'Board's guidelines' defying the provisions of sec. 124(1), (2) & (4). Ld. CIT (Appeals) also neglected the binding provisions of sec. 124(4) read with sub-section (2) under which the dispute of jurisdiction was to be determined by the Chief CIT or Commissioner of Income-tax but neither the matter was referred to the Chief CIT or Commissioner of Incometax u/s 124(4) nor the dispute was determined by the Chief CIT or Commissioner of Income-tax.
6. We now refer to the relevant contents of the remand report of the AO which the ld CIT(A) has relied upon and our attention was drawn by the ld AR during the course of hearing:
"The case was selected under scrutiny according to the list of CASS (Copy enclosed Annexure- Á'). Accordingly to the guidelines of the CBDT, the notices u/s 143(2) are to be issued in the cases selected through CASS, having PAN with AO (Copy enclosed Annexure-B). This is a regular process for issuing notices in cases of CASS selected scrutiny. Such directions are received each and every year. The directions issued in the year 2012 is also enclosed for your kind reference (Annexure-C). Thus in case of assessee, the noticed was issued by ITO, Kishangarh. The evidence of which is enclosed (Annexure-D). The current loss in this case was more than Rs. 20 lakhs, therefore the case was transferred to ACIT, Circle-1, Ajmer. The notice was issued with guidelines of the CBDT. According to the guidelines for issue of notice, the ITO, Kishangarh was having proper jurisdiction over the case. In view of facts narrated above, the objection filed for initiation of notice deserves to be rejected."7
ITA No. 922&923/JP/13 Anupam Marbles Pvt. Ltd. Vs. ACIT 6.1 As the ld AR contended that various annexures of the remand report were not made available to the assessee, ld. D/R was instructed by the Bench and he thereafter supplied the photo copies of Annexure A to D of the remand report of A.O. to the ld AR. In this regard, the ld AR submitted that ld. CIT(Appeals) erred in law in rejecting the ground relating to the jurisdiction because all the Annexure A to D of remand report are also totally irrelevant and are not applicable in the case of appellant and it was submitted as under:
A. Annexure-A of the remand report
1. It is not clear from this list who prepared or issued this list. However, it appears to be list of compulsory Scrutiny of ITO, Kishangarh.
2. This document is not the 'list of CASS as claimed by Ld. AO and CIT(A).
3. Please peruse the column 'category' and according to this column, it is the case of 'compulsory scrutiny u/s 44AB.
4. This entire list pertains to 'compulsory scrutiny' and it has no link and relation to CASS (Computer Assisted Selection of Cases) and not a single case selected by CASS has been included in this list.
B. Annexure-B
1. It is not the guidelines of the CBDT but it is an internal instruction of Director of Incometax (Systems)-III, New Delhi which is not binding at least on Appellant-assessee and it cannot supersede the provisions of sec. 143(2).
2. This AST instruction is not applicable to scrutiny cases selected other than by CASS and Assessee's case was selected under compulsory scrutiny and not under CASS and therefore, this so called instruction is not applicable in the case of assessee in contravention of provisions of sec. 143(2) 8 ITA No. 922&923/JP/13 Anupam Marbles Pvt. Ltd. Vs. ACIT
3. It is clear from the clause-2 of this AST-Instruction that notice u/s 143(2) is to be generated by the Officer having PAN in his jurisdiction (may or not be the Assessing Officer). And thus, this clause only guides/authorizes to generate the notice from AST System in case of CASS but it does not empowers/authorizes any officer other than Assessing Officer to issue notice u/s CASS in contravention/superseding of provisions u/s 143(2).
4. Otherwise also, this instruction/procedure is implied because only AST authorized officer (holding Pass word/control) can generate the notice but after generating the notice, it should be sent to concerned/authorized A.O. u/s 143(2) who shall only issue the notice.
5. If the ITO, Kishangarh was not having the jurisdiction over the assessee u/s 143(2) he has to transfer the case/file to the lawful A.O. who should have issued the lawful notice u/s 143(2).
C. Annexure-C
1. This AST instruction dated 15.07.2012 is for the financial year 2010-11 which has no relevance to the appellant's case.
2. Despite total irrelevancy, Ld. CIT(Appeals) referred this Annexure against the assessee which is totally unlawful and arbitrary.
D. Annexure-D
1. This seems to be copy of application database (Form 49AA) which is totally irrelevant to the present case. In fact, it is admitted fact but there is nothing against the claim of assessee-appellant.
2. Despite total irrelevancy, Ld. CIT(Appeals) referred this Annexure against assessee which is totally unlawful and arbitrary 9 ITA No. 922&923/JP/13 Anupam Marbles Pvt. Ltd. Vs. ACIT E. More ever, it is clear from the para-2 page No. 2 of Assessment order that the case was selected under Compulsory Scrutiny on the basis of survey conducted u/s 133A on 18.02.2009 which implies that the case of the assessee was not selected under CASS.
F. Alleged notice u/s 143(2) dated 23.09.2010 is not a notice generated through system under CASS but it is typed notice by ITO, Kishangarh.
G. Conclusively, appellant submits and requests your honours as under-
1. that Assessee's case was not selected under CASS but it was the matter of compulsory scrutiny.
2. that lawful notice u/s 143(2) could be issued by ACTIT, Circle- 1,Ajmer only
3. that the notice issued by ITO, Kishangarh is without jurisdiction.
4. That the above said Annexure B to D are totally irrelevant and Annexure-A supports appellant's version.
Therefore, appellant requests your honours to hold the initiation u/s 143(2) unlawful and without jurisdiction and quash the assessment order.
7. We have heard the rival contentions and pursued the material available on record. On perusal of the order sheet pertaining to assessment proceedings for the impunged assessment year, it is noted that the case was selected through manual basis and notice u/s 143(2) was issued by ITO, Kishangarh dated 23.08.2010 which was duly served upon the assessee on 26.08.2010. There is no dispute that notice was duly issued and served on the assessee within the prescribed time limit u/s 143(2) of the Act. The dispute 10 ITA No. 922&923/JP/13 Anupam Marbles Pvt. Ltd. Vs. ACIT related to whether ITO, Kishangarh had the jurisdiction to issue the said notice u/s 143(2) of the assessee or not.
8. In this regard the Ld. AR has drawn out attention to the office order No. 1/2001 dated 31th August, 2001 issued by the Additional Commissioner of Income Tax, Range-1, Ajmer which reads as under:-
" Vide notification No. 1 of 2001-02 dated 1.8.2001 as amended vide corrigendum dated 29.8.2001, all the AOs of Range 1, Ajmer were assigned concurrent jurisdiction over all the cases falling under the jurisdiction of Range-1, Ajmer.In continuation of this, the undersigned hereby assign the territorial jurisdiction to the DCIT/ACIT and to the income-tax Officers and Tax Recovery Officer posted in Range-1, Ajmer as under administrative purposes.
DCIT/ACIT, Circle-1, Ajmer The DCIT/ACIT, Circle-1, Ajmer, will have jurisdiction over:-
1. All persons residing within the territorial jurisdiction of Addt/Jt.
Commissioner of income tax, Range-1, Ajmer whose returned income/loss is Rs. 5 lacs or above.
2. All pending search and seizure assessments and block assessments of the persons residing within the territorial jurisdiction of Addl. CIT/JCIT, Range-1, Ajmer.
3. All persons specifically assigned to him by the Commissioner of income tax, Ajmer.
4. Estate Duty cases of all the areas of Ajmer District.
I.T.O., Ward-1(1), Ajmer 11 ITA No. 922&923/JP/13 Anupam Marbles Pvt. Ltd. Vs. ACIT ............
I.T.O., Ward-1(1), Ajmer ...........
I.T.O.Kishangarh The ITO, Kishangarh, will have jurisdiction over:-
1. All persons residing within the territorial area of kishangarh Tehsil whose returned income/loss is below Rs. 5 lacs.
2. Returns under 1/6 Scheme of the territorial area of Kishangarh Tehsil
3. TDS of the territorial areas of Kishangarh Tehsil.
9. On perusal of the above office order dated 31.08.2001, it is noted that all the Assessing Officers of Range-1, Ajmer were assigned concurrent jurisdiction over all cases falling under the jurisdiction of Range-1, Ajmer vide notification dated 01.08.2001 and in continuation of the same, the Additional Commissioner, Range-1 has assigned the territorial jurisdiction to the DCIT/ACIT, Circle-1, Ajmer and ITO, Kishangarh for administrative purposes.
The jurisdiction over all persons residing within territorial jurisdiction of Additional/Joint Commissioner Income Tax, Range-1, Ajmer whose returned income/loss is Rs. 5,00,000/- or above is with DCIT/ACIT, Circle-1, Ajmer. The jurisdiction of ITO, Kishangarh would be over all persons residing within territorial area of Kishangarh Tehsil whose returned income /loss is below Rs. 5,00,000/-. It is noted that aforesaid officer order dated 31.08.2001 issued by the Additional Commissioner of Income tax talks about concurrent jurisdiction of ACIT/DCIT as well as ITO, Kishangarh for cases falling under jurisdiction of Range-1, Ajmer and then in furtherance of that, specifies that for administrative purposes, the territorial jurisdiction of the cases are been assigned to ACIT and ITO based on defined pecuniary and other parameters.
12ITA No. 922&923/JP/13 Anupam Marbles Pvt. Ltd. Vs. ACIT The said office order thus, nowhere states that the ACIT/DCIT will have exclusive jurisdiction over the assessee. In our view, since the assessee is having its registered office in Kishangarh, ITO, Kishangarh will continue to have jurisdiction over the assessee and for assessment years, where the returned income/loss is more than Rs 5 lacs, the matter will be assigned to ACIT and for years, where the returned income/loss is less than Rs 5 lacs, the matter will continue to be with ITO, Kishangarh in terms of the said officer order. Further, in compliance of the said office order, the matter for the year under consideration has rightly been transferred by the ITO, Kishangarh to ACIT, Circle-1, Ajmer who has thereafter proceeded with the completing the assessment proceedings and passing the order u/s 143(3) of the Act.
10. The next question arises for consideration is who is authorised to issue the notice u/s 143(2) to the assessee whereby its return of income exceeds the threshold of Rs 5 lacs for the impunged assessment year and is selected for scrutiny assessment. As we have held above, both the Assessing officer namely, ITO Kishangarh and ACIT, Circle 1 were having concurrent jurisdiction over the assessee which comes under the jurisdiction of Range-1 Ajmer and under the overall jurisdiction of the Commissioner of Income tax, Ajmer and therefore, both were authorised to issue the notice u/s 143(2) for the year under consideration. Further, the ld DR drawn our reference to AST Instruction No. 1 dated 10.08.2010 wherein it is stated that notices u/s 143(2) is to be generated from the system by the officer having PAN in his/her jurisdiction and relying on the same, submitted that since at the time of issuance of the notice on 23.08.2010, the PAN of the assessee was lying in the jurisdiction of ITO, Kishangarh, the notice u/s 143(2) was issued by ITO, Kishangarh and subsequently in light of office instruction no. 1/01 dated 31.08.2001, since the returned loss was more than Rs. 5,00,000/-, the case of the assessee was transferred to ACIT,Circle-1, Ajmer who has thereafter 13 ITA No. 922&923/JP/13 Anupam Marbles Pvt. Ltd. Vs. ACIT completed the assessment proceedings and finally passed the order u/s 143(3) of the Act. We find force in the arguments of the ld DR. In our view, the said AST instruction reflects the correct position of the Revenue from an IT administrative stand point. The officer having PAN in his jurisdiction who is called as AO - PAN will only have access in the IT system at the relevant point in time and once the case is selected for scrutiny, he has no option but to issue the notice u/s 143(2) of the Act. Thereafter, before the proceedings are taken up further, the PAN as well as the related return records maintained on the IT system can be migrated to the AO having the actual jurisdiction over the case for that particular year. In our view, since the advent of the e-filing and online processing of the tax returns, irrespective of whether the case was selected for scrutiny on the basis of CASS or manually selected under compulsory scrutiny as in the instant case, the said administrative procedure from an IT stand point has to be followed by the Assessing officer all over the country for the overall tax administration and the same cannot be held against the Revenue. It is true that issuance of a notice u/s 143(2) is an inherent and fundamental requirement to exercise jurisdiction over a particular case but merely because notice has been issued by one Assessing officer and thereafter transferred to another Assessing officer holding concurrent charge under the jurisdiction of same CIT cannot be held against the Revenue for want of jurisdiction.
11. In our view, in the instant case, the notice u/s 143(2) was therefore, rightly issued by ITO, Kishangarh and at that point in time when the notice was issued, the PAN was lying in the jurisdiction of ITO, Kishangarh as reflected in the IT system of the tax department and there was no way that the notice could have been issued by the ACIT, Circle 1, Ajmer. We are unable to accede to the contention of the Ld. AR that since jurisdiction over the matter for that particular year lies with the ACIT, Circle-1, Ajmer, the 14 ITA No. 922&923/JP/13 Anupam Marbles Pvt. Ltd. Vs. ACIT issuance of the notice u/s 143(2) has to be done by the ACIT Circle-1, Ajmer and by no other Assessing Officer. In our view, there are situations where the return of income filed by the assessee may vary from year to year and it can so happen that in the first year, the returned income is less than Rs. 5,00,000/- and in the subsequent year the returned income is more than Rs. 5,00,000/- and vice-versa. Further, there could be situations where the original return discloses income less than Rs 5,00,000 and the assessee revises its return of income exceeding the threshold of Rs 5,00,000. Then in such a situation where the second year return is selected for scrutiny, it may so happen that the PAN is still lying in jurisdiction of the first Assessing Officer who happens to be ITO and it has not been migrated/transferred to the second Assessing Officer who happens to be the ACIT/DCIT before the due date of issuance of the said notice. The issuance of notice under section 143(2) of the Act in such a situation will be done by ITO and cannot be done by ACIT/DCIT. In such a situation, if we were to accept the contention of the ld. AR, then in the cases where the PAN could not migrated/transferred from one Assessing Officer to another Assessing Officer, the Revenue will lose his jurisdiction to assess the income of that particular year even though it satisfies the required parameters for scrutiny assessment. In our view, this is precisely the reason, if we look at the instruction no. 1 dated 10.08.2010 which has been issued in the context of scrutiny assessment through CASS but at the same time, it highlights this very situation where the notice u/s 143(2) has to be issued by the Assessing Officer having the PAN in his jurisdiction. In our view the said instruction makes it amply clear that notice has to be issued by the Assessing Officer who is having the PAN of the assessee in his jurisdiction and thereafter the same can be transferred to the Assessing Officer who is having the territorial and the pecuniary jurisdiction over the assessee to complete the assessment proceedings.
15ITA No. 922&923/JP/13 Anupam Marbles Pvt. Ltd. Vs. ACIT
12. Given that both ITO, Kishangarh and ACIT, Circle -1, Ajmer were having concurrent jurisdiction over the subject matter and based on pecuniary limits, the matter was transferred by ITO, Kishangarh to ACIT, Circle -1, Ajmer and there was no question of dispute relating to jurisdiction which calls for intervention of Chief CIT or CIT u/s 124 of the Act in the instant case as contended by the ld AR.
13. In light of above, in the entirety of facts and circumstances of the case and taking into consideration all the contentions of the both the parties, we are of the view that the notice u/s 143(2) has been rightly issued and served on the assessee by the ITO, Kishangarh within the prescribed time limits and thereafter the assessment proceedings have been completed u/s 143(3) of the Act by ACIT, Circle -1 Ajmer and do not see any infirmity in terms of ACIT, Circle-1, Ajmer exercising jurisdiction over the matter. In the result, ground no. 1 of the assessee's appeal is dismissed.
14. In the second ground of appeal, the assessee has challenged that the action of the Revenue in conducting the survey proceedings u/s 133A by un- empowered officials in completely unlawful manner with force, fabrication, forgery and black-mailing, and has challenged the consequent assessment proceedings based on such unlawful survey proceedings.
15. In this regard, the ld AR vehemently argued the matter and relied on the written submissions which are reproduced as under:
A. As required by proviso to sec. 133A, neither Ld. A.O. (ITO, Kishangarh) got approval from Joint CIT before taking the action u/s 133A(1) nor otherwise, he was authorized by Ld. Joint CIT for taking the action u/s 133A(1) and therefore, entire survey proceedings was unlawful. After the 16 ITA No. 922&923/JP/13 Anupam Marbles Pvt. Ltd. Vs. ACIT survey, on demand of appellant under RTI Act, Ld. ITO, Kishangarh (A.O.) gave the information regarding 'I.T. Officials participated in the survey proceedings 'vide his order dated 13.05.2009 and as per this information, Mr. Surendra Yadav, ITO Kishangarh was not authorized for this survey u/s 133A against the appellant.
B. It appears from the alleged stock inventory, cash inventory, inventory of books of accounts found and statement of one of the director, that all were prepared or got prepared by Mr. Surendra Yadav, I.T.O. Kishangarh but without taking any approval from jurisdictional Joint CIT.
C. It also appears from the alleged statement of one of the director and assessment order that it was recorded on oath whereas there is no such provision u/s 133A for recording the statement on oath and therefore, alleged statement is unlawful as also held in following cases:-
(a) CIT vs. S. Khadar Khan & Sons (2008) 300 ITR 157 (MAD)
(b) Paul Mathews & Sons Vs CIT (2003) 263 ITR 101 (KER) D. After being relaxed from the tension of survey proceedings, directors of appellant-company filed letter of rebuttal cum grievance petition dated 24.02.2009 to ld. A.O. himself and dated 25.02.2009 to the Chairman, CBDT, New Delhi but Ld. A.O. as well as Ld. CIT(Appeals) ignored this entire fact very arbitrarily for initiating and completing the assessment proceedings.
E. There is no provision in the Income-tax Act to get surrender of income u/s 133A but on the contrary, there is binding CBDT instructions No. f. No. 286/2/2003-IT (Inv. II) dated 10.03.2003 for not getting any forceful confession for undisclosed income which was issued in follow-up of para 151(j) of speech of Hon'ble Finance Minister of Govt. of India while putting 17 ITA No. 922&923/JP/13 Anupam Marbles Pvt. Ltd. Vs. ACIT the Finance Bill, 2003 on 28.03.2003. In this speech, Hon'ble Finance Minister stated, "(i) simplifying the procedure and methods employed during search and seizure and during the survey by the Income-tax Department. First, hereafter, stock found during the course of a search and seizure operation will not be seized under any circumstances. Second, no confession shall be obtained during such search and seizure operations. Third, no survey operation will be authorized by an officer below the rank of Joint Commissioner Income-tax. Finally, books of account impounded during survey will not be retained beyond ten days, without prior approval of the Chief Commissioner." More ever, as held in following cases, such surrenders are unlawful and not conclusive and statement u/s 133A has no evidentiary value:-
(a) Paul Mathews & Sons Vs. CIT (2003) 263 ITR 101 (KER)
(b) ITO Vs. Vijay Kumar Kesar (2010) 327 ITR( 497 (C) CIT Vs. Dhingra Metal Works (2010) 328 ITR 384
(d) ACIT Vs. Smt Usha Rani Talla ( 2010) 6 ITR ( Trib) 37 (DEL)
(e) Ravindra Kumar Vs. DCIT (2009) 33 SOT 251(DEL)
(f) Satish Builders Vs. ACIT (2009) 23 DTR (DEL) ( Trib) 171
(g) DCIT Vs Premsons (2010) 130 TTJ (Mum) 159 (H) ITO Vs Smt Pratibha Goyal (2011) 132 ITD 517(JP).
F. As mentioned above, survey proceeding itself was unlawful and therefore, Ld. A.O. erred in law in initiating the proceeding u/s 143(2) merely on the basis of alleged survey proceedings (First para on page No. 1 of Assessment Order) and therefore, assessment proceeding is also unlawful.
G. The entire survey proceeding was carried out in completely unlawful manner with fabrication and forgery and Ld. A.O. succeeded in getting so 18 ITA No. 922&923/JP/13 Anupam Marbles Pvt. Ltd. Vs. ACIT called surrender of undisclosed income of Rs. 89,34,271/- by force, fabrication, forgery and black-mailing.
H. As per the order of Ld. A.O. under RIT Act dated 13.05.2009 survey proceeding was started at 1.00PM on 18.02.2009 and concluded on around 8.00 AM on 19.02.2009 (total 19 hours for 2 Companies) and appellant is also agree with this fact but Ld. A.O. fabricatedly prepared all the documents i.e. statement of director, stock inventory, valuation of stock, cash inventory, impounding of documents etc in two survey proceedings (in case of Jain Stones Pvt. Ltd. also) at the same time in the back date of 18. 02.2009 which also proves the fabrication of Ld. A.O. If appellant's this allegation is not acceptable, then it is the serious issue that entire proceedings was completed on 18.02.2009, then what the survey team did on 19.02.2009 (except the forgery and fabrication)?
16. The ld AR, as regards comments of A.O. in remand report before Ld. CIT(Appeals) was concerned, submitted as under:-
(a) Copies of referred Annexure-E and F were not provided to the appellant.
(b) Ld. A.O. just repeated his version as mentioned in the assessment order without mentioning any new fact with reference to appellant's submission.
(c) As appellant submitted earlier in support of stay application before ld.
CIT(Appeals) and appellant again reiterated before ld. CIT(Appeals) that alleged entire survey proceedings as well as all the alleged entries which were shown to be passed in SAFE A/C between 05.05.2008 to 27.01.2009 were false and fabricated as these entries were actually passed on or after the entry of M/s Ankit Woodwool Industries dated 18.02.2009. It can be verified 19 ITA No. 922&923/JP/13 Anupam Marbles Pvt. Ltd. Vs. ACIT from the day book that every entry is having unique master id i.e. every single entry is having its own unique master id in Tally software and your honors will find that alleged entries which were passed physically in computer on different dates but actually, all the entries which were entered or get entered only on 18.02.2009 after the entry of M/s Ankit Woodwool Industries which is having master id number 1119 whereas all the alleged/false entries having unique master ids from 1120 to 1141. It shows that all the alleged/false entries were passed only on 18.02.2009 by the authorities of the department as alleged by the appellant-applicant. It is very much clear from the DAY Book of the appellant-applicant that all the entries in SAFE A/C were passed in the single sitting which is also evident from the copy of SAFE A/C with unique master id. A certificate of chartered accountant along with authenticated copies of day book of the relevant dates and SAFE A/C was also submitted before ld. CIT(Appeals) for his ready reference and your honour will also observe how the I.T. authorities have passed or got passed these alleged/false and imaginary entries in the books of appellant-applicant on single date in the various back dates.
(d) Appellant-applicant has already produced original CPU/Hard Disk before ld. CIT(Appeals) in addition to ld. AO. and appellant-applicant will always be ready to produce CPU/Hard Disk on any day before your honour for your kind satisfaction but ld. CIT(Appeals) also did not touch the CPU and totally ignored it's investigation deliberately.
(e) Copies of all the judgments/ITAT orders mentioned here-in-above were produced before ld. CIT (Appeals) as 'Judgements Paper Book' and it is very pertinent to observe that none of the judgments and ITAT orders were objected by ld. A.O. and even by CIT (Appeals).
20ITA No. 922&923/JP/13 Anupam Marbles Pvt. Ltd. Vs. ACIT
(f) It has been admitted by Ld. A.O. himself in his remand report that entire survey proceedings was completed on 18.09.2009 (impliedly till 11.59 PM) and then again, it is a serious issue, what the survey team did between 11.59 and 8.00 A.M. of 19.09.2009. This is also a fact of fabrication.
(j) Ld. CIT(Appeals) just repeated version of Ld. A.O. without making any justice. Therefore, entire survey proceeding and entire consequential assessment proceeding should be held unlawful and assessment order based on such unlawful survey proceeding should also be quashed.
17. It is noted that from perusal of the order of the ld CIT(A) that similar contentions have been raised by the ld AR before the ld CIT(A). It would therefore be relevant to refer to the relevant findings of the Ld. CIT(A) to examine how he has dealt with the ld AR's contentions. The relevant findings of the ld CIT(A) are contained at para 13.5 and para 4.5 of his order which are reproduced as under:-
"13.5 I have considered the contentions of the appellant as well as assessment order and remand report. It is seen that assessee's contention are similar as in the case of M/s Jain & Jain Stones Pvt. Ltd. The findings in case of above concern at the Para 4.5 supra are equally applicable in the present case also. In view of similar reasoning, this ground of appeal is dismissed."
"4.5 I have considered the contentions of the appellant as well as assessment order. It is seen that the assessee has claimed that survey u/s 133A was not authorized by the JCIT and stock and cash inventory and inventory of books of accounts were prepared by the AO, Shri Surendra Yadav without the approval of the JCIT. In the regard, it has already been pointed out by the AO in his remand report dated 08.02.2013 that for the survey u/s 133A approval was obtained from the then Addl. CIT Range-1 Ajmer by authorization dated 18.02.2009 and the AO Shri Surendra Yadav was legally authorized to prepare inventory of stock, cash and books of accounts and to record the statement of any persons present in the premises. The said 21 ITA No. 922&923/JP/13 Anupam Marbles Pvt. Ltd. Vs. ACIT authorization is available on record as per which Sh. Surendra Yadav, ITO and AO was duly authorized for the purpose carrying out survey and all consequential actions in this regard. The said authorization has also been served on the Director and signatures obtained at the time of survey. In above circumstances, the said contentions of the appellant are not sustainable.
As regarding the statement recorded on oath, it may be mentioned that the AO is authorized to record the statement of any person which may be useful for or relevant to any proceeding under the I.T. Act. As per the provisions of Sec. 133A, there is no need to administer the oath for recording the statement. However, this fact in itself does not invalidate the facts brought on record in the statement recorded by the AO. The case laws cited by the AO i.e. CIT vs. S. Khader Khan & Sons (2008) 300 ITR 157 (Mum.) and Paul Mathews & Sons vs. CIT (2003) 263 ITR 101 and other case laws relied upon by the assessee explain that statement recorded on oath during survey has no evidentiary value and any admission made during such statement cannot by itself be made the basis of addition. In this case, the additions are not solely based on the statement recorded. From the assessment order, it is apparent that the AO has not accepted the income declared by the assessee in a mechanical way but has applied his mind to the various aspects and documents found during survey before completing the assessment which have been discussed subsequently while deciding the additions on merits.
Further it may be mentioned inventories of the stock, cash, book of accounts and other documents can be drawn at any time during the survey proceedings.
As regarding the assessee's contention about issue of surrender and various additions made by the AO have been contested by the appellant separately and have been decided accordingly.
In view of the above discussion, this ground of appeal is dismissed."
18. We have heard the rival contentions and perused the material available on record. We have gone through copy of letter written by ITO Kishangarh dated 17.02.2009 available at Revenue's paperbook page 10-11 detailing the 22 ITA No. 922&923/JP/13 Anupam Marbles Pvt. Ltd. Vs. ACIT information gathered by ITO Kishangarh relating to activities of M/s Anupam Marbles, M/s Jain & Jain Stones Pvt Ltd and its directors and basis said information, seeking authorisation of the Additional CIT, Range -1, Ajmer u/s 133A of the Act. Thereafter, as apparent from the said letter, on 18.02.2009, the Additional CIT, Range -1, Ajmer accorded her approval stating that the case is found fit for survey u/s 133A and survey may be carried out on 18.02.2009. An authorisation under section 133A(1)(b) of the Act dated 18.2.2009 was issued in name of Shri Surendra Yadav, I.T.O. Kishangarh and other officials to carry out survey operations at business office/godown premises and sites occupied by M/s Anupam Marbles Pvt Ltd, E-201, Industrial Area, Madanganj, Kishangarh available at Revenue's paperbook page 12. The said authorization has also been served on the Director Shri Ashok Kumar Bohra on 18.2.2009 and his signatures obtained at the time of survey. In light of the same, the survey proceedings have been duly approved and the duly authorised officials have carried out the survey proceedings and we donot see any infirmity in the said action.
19. Regarding the contention of the ld AR that no reliance can be placed upon the statement made by the directors of the appellant during the survey proceedings under Section 133A of the Act for the reason that it was recorded on oath. It is undisputed that even under Section 133A of the Act dealing with survey proceedings, the revenue authorities are entitled to record the statement of any person which may be useful or relevant to proceedings under the Act. The power to record a statement during survey proceedings is found in Section 133A (3) of the Act which provides that an income tax authority acting under this section may record the statement of any person which may be useful for, or relevant to, any proceeding under this Act. The requirement of recording a statement on oath is found in Section 132 of the Act i.e. during search and seizure proceeding and such a requirement is not found in Section 133A of the 23 ITA No. 922&923/JP/13 Anupam Marbles Pvt. Ltd. Vs. ACIT Act. Nevertheless, a statement under Section 133A of the Act does not loose its evidentiary value merely because it is made on oath. Besides, the statement in this case, as we have noted in subsequent paragraphs, is one of the evidences being relied upon by the AO and as confirmed by the ld CIT(A) and is not the sole evidence in the instant case.
The case law relied upon by the appellant passed by the Hon'ble Madras High Court in the matter of CIT v. S. Khader Khan Son [2008] 300 ITR 157 proceeded on the fact that the authorities did not accept the retraction made by a deponent of a statement made on oath during survey proceedings under Section 133A of the Act. This was on the ground that statement was made on oath. Besides the sole evidence against the assessee in that case was the statement made on oath during the survey proceedings which is not the case in the present facts. Further, in this case the assessee has not been able to show that the statement made is not correct and/or unbelievable. Therefore, the case law relied upon by the assessee is completely distinguishable and not applicable to the present facts.
20. In light of above, we don't see any infirmity in the findings of the ld CIT(A) which are hereby confirmed. In light of above, ground no. 2 of the assessee's appeal is dismissed.
21. Now, coming to third ground of assessee's appeal wherein the assessee has challenged the action of the ld CIT(A) in confirming additions made by Ld. AO on the basis of unlawful surrender obtained during the survey proceeding u/s 133A on account of completely false unsecured loans of Rs. 80,30,000/-
22. In this regard, the ld AR vehemently argued the matter and relied on the written submissions which are reproduced as under:
24ITA No. 922&923/JP/13 Anupam Marbles Pvt. Ltd. Vs. ACIT A. Ld. A.O. erred in law in making additions on the basis of unlawful surrender obtained during the survey proceeding U/s 133A on account of completely false unsecured loans in imaginary names of Rs. 80,30,00,000/- because these unsecured loans are completely creation, fabrication of Ld. AO.
B. After being relaxed after survey proceedings, directors of appellant- company filed letter of rebuttal cum grievance petition dated 24.02.2009 to Ld. AO himself and dated 25.02.2009 to the Chairman, CBDT, New Delhi but Ld. AO and CIT(Appeals) totally ignored this entire facts very arbitrarily for initiating and completing the respective proceedings.
C. Original diary and relevant one ball-pen was also produced before Ld. A.O. during the assessment proceedings for verification as well as for any type of scientific testing such as SFL etc and also offered to produce for all types of scientific investigations for knowing the truth and fabrication of I.T. Authorities and original Diary was also produced before Ld. CIT(Appeals) but Ld. AO as well as CIT(Appeals) overlooked and avoided appellant's reasonable request just to justify the action of concerned AO. Appellant is also producing herewith separately that diary and Ball-pen before your honours also and also requests your honours to issue commission u/s 131 for verification as well as for any type of scientific testing such as SFL etc for knowing the truth and fabrication of I.T. Authorities.
D. Ld. AO as well as Ld. CIT(Appeals) also seriously erred in law in not considering the affidavits filed by the appellant and in providing any opportunity to cross-examine of the I.T. Officials involved in the unlawful survey proceedings.25
ITA No. 922&923/JP/13 Anupam Marbles Pvt. Ltd. Vs. ACIT E. False & fabricated entries of Rs. 80,30,000/- were also entered or got entered by survey team in the computer of the appellant-company during the survey proceedings only. Appellant also produced the original hard disc before the ld. AO as well as before CIT(Appeals) for scientific examination of this hard disc and to issue the commission to know the date of entries for entering these entries in the computerized cash book of the appellant but Ld. A.O. as well as before CIT(Appeals) ignored the examination of that hard disc to know the truth. Original hard-disc of that computer is still ready with the appellant-company during the appeal hearing from where any computer expert including departmental experts can know when alleged entries were made in that computer. Appellant also requests your honours to please issue commission to any computer expert u/s 131 of the Income tax Act, 1961 for scientific analysis of the date on which alleged entries were made in the computer of appellant-company.
F. None of a prudent businessman can make such false entries of unsecured deposits in the books without any use or benefit of such entries and when entries were already in books of a business man, only a mad businessman will write such entries in code words in a telephone diary which is openly used by all the people related to a company (for no logic)?
G. Your honour will find from the Safe Account that debit entries were started/shown in this account since 05.05.2008 and last entry was shown on 27.01.2009 and as per fabricated story, not a single rupee was utilized by the appellant in it's business in last 9 months or for investment. Only a foolish businessman can make such credits for no use. Were these extra ordinary & abnormal entries made just to show the survey team only? This non-utilisation of these funds also proves that it is only a fabrication just to achieve the target.26
ITA No. 922&923/JP/13 Anupam Marbles Pvt. Ltd. Vs. ACIT H. If Ld. AO came to know about any SAFE containing Rs. 80,30,000/- why that place where 'SAFE' was kept was not surveyed in the interest of revenue when such place is covered by explanation to Sub-section (1) of Sec. 133A? It implies that it was impossible for Ld. A.O. as there was neither any SAFE nor any such place for SAFE. This fact also supports appellant's allegation of False story, forgery and fabrication.
I. As alleged, entire survey proceeding was arbitrary and unlawful and full of forgery and fabrications and therefore, for knowing the truth, both the directors of company offered on 20.12.2011 before Ld. AO for any type of scientific tests such as NARCO Test, Lie detecting test, polygraph and brain mapping tests etc. and such request was also made before Ld. CIT(Appeals) but Ld. AO as well as CIT(Appeals) ignored and avoided any such type of test. Even now, both the directors of company request your honour to issue commission u/s 131 for any type of scientific tests such as NARCO Test, Lie detecting test, polygraph and brain mapping tests etc. for knowing the truth.
J. So far as comments of Ld. AO in remand report before Ld. CIT(Appeals) is concerned, appellant submits as under:-
(a) here again, Ld A.O. admitted that survey was concluded in the morning of 19.02.2009 whereas every action was completed/concluded on 18.02.2009 (As per record), then what action and activities were carried out on 19.02.2009 except the fabrications.
(b) Copy of judgement of 230 ITR 791 referred by Ld. AO was also filed before Ld. CIT(Appeals) but it is also not pertaining to survey and statement u/s 133A and another two judgments were also totally irrelevant.
27ITA No. 922&923/JP/13 Anupam Marbles Pvt. Ltd. Vs. ACIT
(c) As appellant submitted earlier in support of as well as before CIT(Appeals) before Ld. CIT(Appeals) and, appellant again reiterates before your honours that alleged entire survey proceedings as well as all the alleged entries which were shown to be passed in SAFE A/C between 05.05.2008 to 27.02.2009 were false and fabricated as these entries were actually passed on or after the entry of M/s Ankit Woodwool Industries dated 18.02.2009. It can be verified from the day book that every entry is having unique master id i.e. every single entry is having its own unique master id in Tally software and your honours will find that alleged entries were shown to be passed on different dates but actually, all the entries were entered or get entered on 18.02.2009 after the entry of M/s Ankit Woodwool Industries which having master id number 1119 whereas all the alleged/false entries having unique master ids from 1120 to 1141.
(d) It shows that all the alleged/false entries were passed only on 18.02.2009 by the authorities of the department as alleged by the appellant-applicant. It is very much clear from the day book of the appellant-applicant that all the entries of SAFE A/C were passed in the single sitting which is also evident from the copy of SAFE A/C with unique master id. A certificate of chartered accountant along with authenticated copies of day book of the relevant dates and SAFE A/C were also produced before Ld. CIT(Appeals) for his ready reference and your honour will observe how the I.T. authorities have passed or get passed these alleged/false and imaginary entries in the books of appellant-applicant on single date in the various back dates.
(e) Appellant-applicant has already produced original CPU/Hard Disk before Ld. CIT(Appeals) in addition to Ld. AO and appellant-applicant will always be ready to produce CPU/hard disk on any time before your honours for your kind satisfaction.
28ITA No. 922&923/JP/13 Anupam Marbles Pvt. Ltd. Vs. ACIT
(f) In the remand report dated 28.02.2013, Ld. AO misconceived and mis- understood on the basis of a chart of total 20 entries and stated that it can be seem that entries having former Unique Master ID can be entered before the entries having later Unique Master ID which were already been entered in day book because the serial number of Unique Master ID cannot be changed irrespective of the date of voucher. Unique Master ID is also allotted by the Tally software in the sequence of the entries irrespective of the date of vouchers whereas date of vouchers can be changed at any time.
(g) It is also worthwhile to mention here that if any voucher is entered on particular date, its voucher number will be created in the sequence of date and time of the creation of the voucher and if that voucher/entry is cancelled/removed, the voucher numbers of all succeeding vouchers will be changed automatically whereas in case of cancellation/removal of any voucher, Unique Master ID of what voucher itself only will be removed and Unique Master ID of all succeeding voucher/entries will remain unchanged.
(h) Appellant would like to draw your kind attention towards u n-numbered para-3 of a certificate issue by CA Mukul Moondra, Information System Auditor dated 29.01.2013 in which he certified that "Unique Master ID" is allotted by Tally software ERP.9 as an unique code no./ serial number of each voucher in sequence of date and time irrespective of the nature and date of the voucher but A.O. has no negative comment against this certificate as well as against the automatic creation of Unique Master ID.
(i) In fact and in practice, business man generally maintains raw/temporary books in addition to computerized books in absence of regular and expert computer accountants or for convenience and therefore, entries in the 29 ITA No. 922&923/JP/13 Anupam Marbles Pvt. Ltd. Vs. ACIT computer are made as per time availability and suitability of the accountant. On the same time, all the transfer entries are generally not made on day to day basis but these are also made as and when accountant gets the time irrespective of the date of the voucher. It also happens that accountant corrects/ rectifies entries in the system as and when he feel and find the mistake and therefore, in those circumstances also, practically entries in the computerized books are not necessarily made on the actual date of the voucher and therefore, voucher number is allotted in the date which is entered while making the entry irrespective of the sequence of date and time of actual entry.
(j) We are reproducing here under the chart prepared by Ld. A.O. in his remand report in the sequence of unique Master ID:-
S.No. Master Party Date Nature
ID
01 80 Telephone Exp 31.05.2008 Cash payment
02 82 Smt. Shobha Devi Pokharna 31.05.2008 SBBJ C/C Receipt
03 93 M/s Kumawat Trading 16.05.2008 Building WIP
04 175 M/s Hindustan Petroleum Corp 03.06.2008 Oil & Greese Puchase
05 447 M/s Anupam Marbles P. Ltd. 11.09.2008 IDBI Bank payment
Katni
06 453 M/s Hindustan Petroleum Corp 03.06.2008 Discount Journal
07 468 M/s Kumawat Trading 16.05.2008 Cash payment
08 475 M/s Pawan Cement 31.05.2008 Cash Payment
09 497 Postage & Stamp 31.05.2008 Cash payment
10 641 M/s Parshwanath Barble 26.10.2008 Purchase
11 690 Input Sales Tax 31.10.2008 Journal
12 698 M/s Parshwanath Barble 23.11.2008 Purchase
13 770 Abhishek Kumar Pokharna 11.09.2008 SBBJ C/C A/C Receipt
14 793 Telephone Exp 16.12.2008 Cash Payment
15 858 Input (Sales Tax) 23.12.2008 Journal
16 1030 M/s Agarwal Iron & Steel Ind. 23.12.2008 SBBJ C/C A/C Receipt
30
ITA No. 922&923/JP/13
Anupam Marbles Pvt. Ltd. Vs. ACIT
17 1057 ESIC Exp 16.12.2008 SBBJ C/C A/C Receipt
18 1096 Machinery Exp 26.10.2008 Cash Payment
19 1097 Machinery Exp 31.10.2008 Cash Payment
20 1098 Machinery Exp 23.11.2008 Cash Payment
As per this chart, appellant submits that all the above entries were entered in above sequence irrespective of date of entry. For example, entry at serial No. 3 (Unique Master ID No. 93) dated 16.05.2008 was entered after the entry at serial No. 2 dated 31.05.2008 having the Unique Master ID No. 82 and therefore, there is no confusion regarding the sequence of Unique Master ID.
(k) In fact and with due respect appellant submits that ld. AO has know knowledge and expertise with reference to working of tally software. In fact, the software always results with truth which cannot be denied or challenged in absence of knowledge and expertise of Ld. AO.
(i) To understand the functioning of tally software, Unique Master ID and voucher number etc., we have brought here with the complete system along with system auditor who will give you the complete demo for your kind satisfaction. Appellant will have no hesitation if the system is checked, scrutinized and operated by any departmental expert, independent expert, chartered accountant or tally operator and rather we would like to welcome any such departmental expert, independent expert, chartered accountant or tally operator to unearth the truth of the tally software.
(m) So far as statement of both the directors during the survey proceedings is concerned, it is totally unlawful and beyond the provisions of section 133A for which we have already submitted various judgments in common judgment paper book dated 24.07.2013 but ld. AO did not contraverted/challenged against any judgment/order. Recently in case of Smt. Geeta Devi Rawal V/s 31 ITA No. 922&923/JP/13 Anupam Marbles Pvt. Ltd. Vs. ACIT ITO, Sirohi and Mahendra Rawal V/s ITO, Sirohi in ITA No. 111, 112, 227 and 228/JU/2013 vide order dated 06.08.2013. Hon'ble ITAT Jodhpur also held.
"We are in agreement with the Ld. A/R that any statement recorded during survey proceedings u/s 133A has no evidentiary value and therefore, only on the basis of admission made in that statement no addition can be made" and therefore also, on the basis of this ITAT order, the statement has no evidentiary value. Copy of ITAT order is being enclosed herewith for your ready reference and kind satisfaction.
23. We now refer to the relevant findings of the Ld. CIT(A) which are under challenge before us. The same are reproduced as under:-
"17.1 As per the assessment order, a diary was found in the drawer of the office table in the business premises of the assessee company. On the page No. 55, various transactions in the name of AMPL were noted. The above transactions were dated 05.05.2008 to 27.01.2009 and were noted in coded amounts. The assessee explained that AMPL represents M/s Anupam Marbles Pvt. Ltd. Shri Ashok Kumar Bohar, Director of the company after consultation with Shri Raj Kumar Pokharna, another Director of the company stated that the various amounts noted in this diary are bogus creditors which represent the undisclosed income of the assessee company. The above amounts have also been entered in the books of accounts but they are bogus and benami accounts. The amounts have been noted in code words after omitting three zeroes. Shri Ashok Kumar Bohra, the Director of assessee company surrendered the amount of Rs. 80,30,000 as undisclosed income based on above transactions as per reply to Question No. 36 of the statement recorded. The AO has reproduced the statement of the Director of the assessee company on Page No. 2 to 6 of the assessment order. The AO has mentioned that assessee has not disclosed the above income in the return of income filed and assessee has retracted from the surrender made by the assessee company. The assessee filed the various affidavits i.e. of Shri Ashok Kumar Bohra, Sh. Raj Kumar Pokharna (both the Directors of the company), Shri Navneet Mehta, Accountant and Sh. Manohar Sharma, employee of the company in support of retraction from the amounts surrendered for taxation. After considering the various contentions and affidavits as discussed in the assessment order, 32 ITA No. 922&923/JP/13 Anupam Marbles Pvt. Ltd. Vs. ACIT the AO has made the addition of Rs. 80,30,000 as per the findings reproduced at Para 15.1 of this order.
17.2 During appeal assessee has submitted the similar contentions as in the case of M/s Jain & Jain Stones Pvt. Ltd. Briefly stated, the assessee mentioned the various points viz unsecured loans are creation, fabrication of the AO, grievance petition has been filed on 24.02.2009, original diary and ball pen are produced for scientific testing, affidavits have not been considered, entries has been made in the computer of the appellant company by the survey team of Rs. 80,30,000/- for which hard disk has been produced before AO and even during appellate proceedings, the safe account was of no use to the assessee and was not surveyed. Similar contentions were made in the case of M/s Jain & Jain Stones Pvt. Ltd.
17.8 I have considered the contentions of the appellant as well as assessment order. It is seen that the basic issue regarding the addition of unsecured loans of Rs. 80,30,000 is similar to the case of M/s Jain & Jain Stones Pvt. Ltd. where the addition was made of unsecured loans to Rs. 45 lacs as discussed in Para 8.8 of this order. The findings of the AO as well as the assessee's contentions are on the similar lines as in the case of M/s Jain & Jain Stones Pvt. Ltd. As such the reasonings at Para 8.8 of this order in case of M/s Jain & Jain Stones Pvt. Ltd. are also applicable in the case of the assessee.
Further, the findings in respect of unique master ID for the various entries are similar to case of M/s Jain & Jain Stones Pvt. Ltd. discussed above as is evident from the remand report of the AO and Para L of the rejoinder dated 08.10.2013 filed by the assessee.
In view of reasoning as in the case of M/s Jain & Jain Stones Pvt. Ltd. discussed at Para 8.8 of this order and discussion above, the addition made by the AO of Rs. 80,30,000 is confirmed."
24. Regarding fourth ground of appeal, the assessee has challenged the action of ld CIT(A) in confirming the additions made by ld. AO on the basis of unlawful surrender obtained during the survey proceeding u/s 133A on account of excess stocks of Rs. 5,26,432 + 1,481/-.
33ITA No. 922&923/JP/13 Anupam Marbles Pvt. Ltd. Vs. ACIT
25. In this regard, the ld AR has vehemently argued the matter and relied on written submissions as under:
A. Ld. AO erred in law in making additions on the basis of unlawful surrender obtained during the survey proceeding u/s 133A on account of excess stocks of Rs. 5,26,432 + 1,481/- because complete inventorisation was made on the back of directors of appellant as per sweet will and suitability of ld. AO ld. AO himself has got admitted through statement that inventory was got prepared with the help of employees of the appellant-company.
B. Assessee-company also filed rebuttal and grievance application dated 24.02.2009 in which director of company has clearly mentioned that the stock lists were not prepared in the presence of any of the director but same were prepared as per sweet wishes of his survey team and thus, so called stock list is arbitrary, imaginary and unreliable.
C. It appears from the alleged stock inventory that this was prepared by Mr. Surendra Yadav, I.T.O. Kishangarh but without taking any approval from jurisdictional Joint CIT u/s 133A and therefore, this stock inventory itself is an unlawful document.
D. On the third page of alleged stock inventory, raw material was quantified as 601 lorries but neither such counting or measurement was actually done by measuring by lorries nor it is practicable to make counting or measurement by measuring by lorries where as raw material (blocks) are always purchased in weight (in Tonnes). For example, copy of Raw Material Account is being enclosed herewith for your honor's ready reference and satisfaction in which weight of each purchase is mentioned. If there is even 1% truth, please ask ld. A.O/ld D/R regarding size of lorry, registration number of lorry and mode & way of counting of raw-material by loading & unloading on lorry for inventorisation with in only 11 hours. In fact, appellant had no facility of such measurement but despite that fact, Ld. AO prepared 34 ITA No. 922&923/JP/13 Anupam Marbles Pvt. Ltd. Vs. ACIT this fabricated stock inventory as per his sweet will and succeeded in getting signatures of the one director forcefully on the alleged stock inventory.
E. It is apparent from alleged stock inventory, stock of crazy (Byproduct) is missing which is next to impossible for such a big plant but ld. A.O. prepared this fabricated stock inventory as per his sweet will and succeeded in getting signatures of the one director forcefully but forgotten to take stock of crazy.
F. Likely, quantity of Slabs and tiles were also written by estimation and as per sweet will of ld. AO. There are many quantities of slabs even more than 50 slabs of same size which is next to impossible to produce from the Machines of the appellant-company. For example, Machines of Anupam Marbles Pvt. Ltd. cannot produce slabs of same size from a single block and size of the slabs will be same only and only if the block is exactly rectangle in shape or it is dressed up exactly in rectangle shape by all the six sides (which is impossible), and not otherwise. A Block could have been dressed up in 2 to 4 sides only out of total 6 sides and therefore, all the slabs from one Block cannot be of same size. For knowing the truth, appellant requests your honours to visit appellant's plants to know the ground reality or issue commission for gathering technical data of such machines and size of slabs for knowing the truth. As per prevailing practice, in measurement, cracks and luffers are always excluded which comes to 10 to 25% of gross measurement but no such reduction was given in the estimated measurement.
G. Rates for valuation of inventory was also applied arbitrarily on average basis as per sweet will of ld. AO whereas rates are varies quality-wise and size-wise which is evident from enclosed copy of Raw material Account.
H. So far as comments of ld. AO in remand report is concerned, appellant submitted before ld. Ld. CIT(A) as under which should be considered by your honours in support of this ground of appeal:-
35ITA No. 922&923/JP/13 Anupam Marbles Pvt. Ltd. Vs. ACIT
(a) As mentioned here-in-above, Mr. Surendra Yadav was not authorized to conduct the survey proceedings against the appellant-company and therefore, he was not authorized to sign on stock inventory also.
(b) Ld. AO himself has admitted at P. B. No. 199 that quantity of 601 lorries was mentioned as told by Directors of the appellant-company. It means that no actual measurement and counting was made. It is also apparent from the alleged statement of Shri Ashok Kumar that stock list was prepared with the help of employees and not as per directors of the company. In any condition and at least, it is true and now admitted fact that no physical stock was taken for stock of 601 lorries but it was just estimated.
26. We now refer to the relevant findings of the Ld. CIT(A) which are under challenge before us. The same are reproduced as under:-
"15.1 As per the assessment order, the statement of Shri Ashok Kumar Bohra, Director of the assessee company was recorded who produced the trading and manufacturing account to show the book position of the stock of Rs. 1,07,92,272. The physical stock found was of Rs. 1,02,67,321. The inventory of the physical stock of the slab, tiles and block found was also confronted to the Director who accepted the same stating that he had no objection to the stock tally. So the difference of the stock was Rs. 5,24,951. The director of the company had surrendered the stock of Rs. 5,24,951 for taxation. The total excess stock has been mentioned as Rs. 5,26,432. The AO has reproduced the submissions of the appellant and affidavits filed by the appellant at Page 2 to 6 of the assessment order and has thereafter made the addition on account of excess stock, cash and unsecured loans as under:
"The submissions put forth by the A/R of the company during the assessment proceedings for rebuttal of surrendered income are not convincing and acceptable though the assessee has deposited an amount of Rs. 24,00,000/- as advance tax on this surrendered income. The statement of the Director Shri Ashok Kumar Bohra was not recorded under duress and thereafter was valid No pressure or duress was exercised on the assessee during the survey proceedings. Moreover 36 ITA No. 922&923/JP/13 Anupam Marbles Pvt. Ltd. Vs. ACIT all the proceedings u/s 133A were carried out in the presence of both the Directors who were present in the business premises. The discrepancies noticed in the course of survey proceedings were duly confronted with the Directors from time to time. After going through the inventories of stock, cash found, transactions of unsecured loans written in the diary which was shown and duly verified by them, the surrendered of Rs. 89,34,271/- was offered for taxation for the financial year 2008-09 relevant to the asstt. Year 2009-10.
It is out of place to mention that the managing director of the assessee Company, Shri Ashok Kumar Bohra, is B.Com. LLB and fully conversant with the business affairs and legal process. He surrendered the amount of Rs. 89,34,271/- as Undisclosed Income of the company, as admitted in his statement recorded on oath during the course of Survey proceedings in his full senses and with the consent of the other Director Shri Raj Kumar Pokharna, and paid the advance tax of Rs. 24,00,000/- till 27.03.2009 on the surrendered income. Though the company has not deposited balance amount of Rs. 23,00,000/-. Now the assessee is making false stories. The rebuttal application filed by the assessee is not acceptable and liable to be rejected as it is an afterthought, illegal and manipulated action without basis. The assessee made allegation that the survey team had forged the documents. If that was so then why the directors have not objected to at the time of recording the statement and signing the documents found and seized at the time of survey. Moreover the survey team cannot bring their own cash at the business premises. The stock was already lying at the business premises.
Therefore the additional income as surrendered by the assessee in the course of asstt. Proceedings is to be assessed. The reliance is placed in the Hon'ble Supreme Court's order in the case of Pullangode Rubber Produce Co. Ltd. Vs. State of Kerala. "As held by the Supreme Court in Pullangode Rubber Produce Co. Ltd. V. State of Kerala (1973) 91 ITR 18 (SC) an admission is an extremely important piece of evidence though it is not conclusive. Therefore, a statement made voluntarily by the assessee could form the basis of assessment. The mere fact that the assessee retracted the statement could not made the statement unacceptable. The burden lay on the assessee to establish that the admission made in the statement at the time of survey was wrong and 37 ITA No. 922&923/JP/13 Anupam Marbles Pvt. Ltd. Vs. ACIT in fact there was admission made in the statement at the time of survey was wrong and in fact there was no additional income."
15.2 During appeal the assessee reiterated the similar contentions as in the case of M/s Jain & Jain Stones Pvt. Ltd. regarding the excess stock of Rs. 5,26,132 + Rs. 1,481 which are not reiterated for the sake of brevity. Briefly stated, assessee contended that stock was taken behind the back of Directors, grievance petition was filed on 24.02.2009, ITO Kishangarh was not authorized for stock taking, raw material was quantified in lorries, stock of krezi was missing, quantity of slabs and tiles was written on estimate basis and rates of valuation of inventory were applied arbitrarily.
15.5 I have considered the contentions of the appellant as well as assessment order. It is seen that the issue is similar to that in the case of M/s Jain & Jain Stones Pvt. Ltd. except the difference in amount of excess stock i.e. 5,26,432 added by the AO. As the findings of the AO and contentions of the appellant on the issue are similar to the case of M/s Jain & Jain Stones Pvt. Ltd. Based on the similar reasoning as in Para 6.5 of this order, addition made by the AO on account of excess stock of Rs. 5,26,430 is confirmed. "
"6.5 I have considered the contentions of the appellant as well as assessment order. It is seen that as per the AO the stock of marble slabs and tiles was worked out at Rs. 26,04,987 while as per manufacturing cum trading account prepared by the assessee as on 18.02.2009, the value of the stock was Rs. 15,94,208 so there was difference of Rs. 10,10,779 which was surrendered by the Directors of the company. Further, similar addition was made of Rs. 23,573 on account of excess stock of raw material i.e. blocks and luffers and krezi. The assessee's contention that inventory of the stock was made at the back of Directors is not supported by the facts of the case as the said inventory of the stock is duly signed by the Shri Ashok Kumar Bohra, the Director of the company. As regarding the rebuttal and grievance petition dated 24.02.2009, it may be mentioned that this petition was filed after five days after the survey action. If assessee had any objection regarding the stock inventorisation, the same could have been pointed out at the time of survey itself and it does not require such a long time. Also, Shri Surendra Yadav AO was duly authorized to carry out the survey. So there can be no objection to his participation in the 38 ITA No. 922&923/JP/13 Anupam Marbles Pvt. Ltd. Vs. ACIT survey action. As regarding the qualification of raw material i.e. blocks and kreji, the inventory is duly signed by the Director of the company and addition of the excess stock of Rs. 23,573 has been made in the assessment order. As regarding the quantity of slabs and tiles, same have been inventorised in details and inventories are signed by the Director and AO. No cracks etc. have been pointed out in the said slabs and tiles. So no reduction on this account was given by the AO. Further, the AO has mentioned that in the remand report all the discrepancies regarding excess stock were pointed out to the Director of the company and no objections were raised and the Directors have preferred to offer the above amount for taxation.
The affidavits filed are dated 25.11.2011 i.e. they have been submitted approximately after two year and nine months of survey. The contents of the affidavit are contrary to the findings as per the survey documents. So, affidavits filed after a long gap of survey action cannot be basis for ignoring the findings of survey as brought out in the assessment order."
27. Regarding fifth ground of appeal, the assessee has challenged the action of ld CIT(A) in confirming the additions made by ld. AO on the basis of unlawful surrender obtained during the survey proceeding u/s 133A on account of excess cash of Rs. 3,77,839/-.
28. In this regard, the ld AR again vehemently argued the matter and relied on written submissions which are reproduced as under:
A. Ld. AO erred in law in making additions on the basis of unlawful surrender obtained during the survey proceeding u/s 133A on account of excess cash of Rs. 3,77,839/- because complete inventorisation of cash was also made on the back of directors of appellant as per sweet will and suitability of ld. AO Alleged inventory was even not signed by cashier of the appellant-company. Ld. A.O just obtained two signatures of one director by force and pressure tactics.39
ITA No. 922&923/JP/13 Anupam Marbles Pvt. Ltd. Vs. ACIT B. The entire proceeding u/s 133A was unlawful, arbitrary and fabricated. Ld. A.O also ignored the protest of the appellant. Ld. A.O also seriously erred in law in not considering the affidavits filed by the appellant and in providing any opportunity to cross-examine of the I.T. Officials involved in the unlawful survey proceedings.
C. It appears from the alleged cash inventory that this was prepared by Mr. Surendra Yadav, I.T.O Kishangarh but without taking any approval from jurisdiction Joint CIT for conducting survey and therefore, this stock inventory itself is an unlawful document.
D. If even 1% reliance is put on the story of ld. AO., there was cash balance of Rs. 84,92,641/- (80,30,000 in safe + 4,62,641/- in Hand), then how the cash was excessive ? In fact, this addition is also part of conspiracy to achieve the target of surrender of income.
E. Contrary to claim of ld. A.O. in the remand report, as mentioned here- in-above, Mr. Surendra Yadav was not authorized to conduct the survey proceedings against the appellant and therefore, he was not authorised to sign on inventories of cash also.
29. We now refer to the relevant findings of the Ld. CIT(A) which are under challenge before us. The same are reproduced as under:-
"16.1 As per the assessment order, cash of Rs. 8,40,440 was found in the almirah of the office of Director which was taken out in front of the Director Shri Ashok Kumar Bohra and inventory was prepared. As per the cash book of the company, cash balance in the books on 18.02.2009 was only Rs. 4,62,641. So excess cash of Rs. 3,77,839 was found. The assessee could not explain the excess cash so the Director after consulting another Director Shri Pokharna surrendered the above excess amount of cash of Rs. 3,77,839 for taxation. The assessee did not show the above amount in the return filed and filed affidavits retracting the above surrender during assessment proceeding. The AO after considering the affidavits has added the above amount to the income of the assessee based on the findings as reproduced supra in Para 15.1 as in the case of excess stock.40
ITA No. 922&923/JP/13 Anupam Marbles Pvt. Ltd. Vs. ACIT 16.2 During appeal assessee reiterated the similar contentions as in case of M/s Jain & Jain Stones Pvt. Ltd. which are not reproduced for the sake of brevity. Briefly stated, the assessee contended that cash inventory was prepared at back of Directors, survey was unlawful, inventory was drawn by ITO Kishangarh without approval of JCIT and safe account of Rs. 80,30,000 has not been considered while making addition.
16.5 I have considered the contentions of the appellant as well as assessment order. It is seen that the issue is similar to that in the case of M/s Jain & Jain Stones Pvt. Ltd. except the difference in amount of excess cash of Rs. 3,77,839 added by the AO. As the findings of the AO and contentions of the appellant on the issue are similar to the case of M/s Jain & Jain Stones Pvt. Ltd. Based on the similar reasoning as in Para 7.5 of this order, addition made by the AO on account of excess cash of Rs. 3,77,839 is confirmed."
7.5 I have considered the contentions of the appellant as well as assessment order. It is seen that the cash of Rs. 9,50,150 was found from the premises of the assessee while as per cash book the balance was Rs. 3,52,624. The Director of the assessee Shri Ashok Kumar Bohra was asked to explain the discrepancy in the cash. However, the Director of the company preferred to offer the above difference of Rs. 5,97,526 for taxation. The assessee's contention that above inventory was prepared at the back of Directors is not acceptable as the Director of the company has signed the inventory of cash for the said amount. Further, the trial balance submitted by the assessee showing the cash as per books. It is not the case that assessee has disowned the excess cash found. There is nothing to show that any force or pressure was applied for obtaining the signature of the Director. The issue regarding action u/s 133A and participation by the AO in survey action has already been separately decided supra. The assessee's contention that if the safe account of Rs. 45,00,000 is included in cash so there cannot be excess cash is not acceptable as in the trial balance on record, copy of which has been filed by the assessee both the above amounts i.e. cash in hand and safe account are separately mentioned and no correlation between these two account was established at the time of survey.
The affidavits filed are dated 25.11.2011 i.e. they have been submitted approximately after two year and nine months of survey. The contents 41 ITA No. 922&923/JP/13 Anupam Marbles Pvt. Ltd. Vs. ACIT of the affidavit are contrary to the findings as per the survey documents. So, affidavits filed after a long gap of survey action cannot be basis for ignoring the findings of survey as brought out in the assessment order.
In view of the above discussion, the addition made by the AO of Rs. 5,97,526/- is confirmed."
30. Regarding grounds no. 3, 4 and 5, we have heard the rival contentions and perused the material available on record. We have gone through the statement of Director Shri Ashok Kumar Bohra recorded during the course of survey u/s 133A and noted that the said statement have been recorded and given by the said director after due consultation with the other director Shri Raj Kumar Pokarna, consultation with the assessee's accountant who maintains the books of accounts on the computers, consultation with the employees/workers employed at their godown/premises where the stock is kept and maintained by the assessee company. From the review of answers given to the various questions raised by the survey officials, we find that the answers are clear and unambigious and shows clearity of thought and expression on the part of the Director knowing fully the state of affairs of the company and its activities. There is nothing to show that the statements were recorded under any force, threat or coercion. The director of the assessee company after consultation with the fellow director has admitted the amount which they wish to surrender and agreed to pay taxes thereon. Similarly, the other Director Shri Raj Kumar Pokarna in his statement recorded during the course of survey has concurred with the admission and statement of Shri Ashok kumar Bohra. Further, it is noted that said admission is based on not merely the statement of the two directors but is also based on credible information and evidence gathered during the course of survey in form of a diary found in the table of the drawer of the Director where the entries relating to the income of the assessee from undisclosed sources were recorded, excess and unreconciled inventory of cash and stock of marble slabs 42 ITA No. 922&923/JP/13 Anupam Marbles Pvt. Ltd. Vs. ACIT and tiles as found during the course of examination of physical inventory maintained in its godown by the assessee company and as recorded in the books of accounts of the assessee company. We have also gone through the contents of the Diary and the inventory list of cash and stock prepared by the officer and duly authenticated and approved by the director and find that the same support the statement made by the Director Shri Ashok Kumar Bohra and concurred by the other Director. It is no doubt true that the statement recorded during the survey proceedings has no evidentiary value of its own but where such statement is supported with crediable verifiable evidence in form of diary found during the course of survey where the entries were found recorded with clear names and amount relating to the income of the assessee from undisclosed sources in the name of bogus entries were recorded, excess and unreconciled inventory of cash and stock were found, then in such a situation, the statement recorded during the course of survey coupled with these credible evidence can definitely form the basis for making the additions in the hands of the assessee. In this regard, reference can be drawn to the decision of Hon'ble Supreme Court's order in the case of Pullangode Rubber Produce Co. Ltd. Vs. State of Kerala(1973) 91 ITR 18 (SC) has held that "An admission is an extremely important piece of evidence but it cannot be said that it is conclusive. It is open to the person who made the admission to show that it is incorrect."
31. Now, in terms of contentions of the ld AR that the statement was subsequently retracted as made during the course of survey, we refer to the legal proposition laid down by the Hon'ble Rajasthan High Court in case of Ravi Mathur & Others (vide its order dated 13thMay, 2016) in the context of statement recorded under section 132(4) and retraction thereof. To our mind, the same is equally applicable in the context of statement recorded under section 133A to the extent it relates to retraction of the 43 ITA No. 922&923/JP/13 Anupam Marbles Pvt. Ltd. Vs. ACIT statement so recorded and the manner of addressing the retraction. The relevant findings of Hon'ble Rajasthan High Court are as under:
"We may observe that retraction should be made as soon as possible and immediately after such a statement has been recorded, either by filing a complaint to the higher officials or otherwise brought to the notice of the higher officials, either by way of a duly sworn affidavit or statements supported by convincing evidence through which an assessee could demonstrate that the statements initially recorded were under pressure/coercion and factually incorrect. In our view, retraction after a sufficient long gap or point of time, as in the instant case, loses its significance and is an afterthought. Once statements have been recorded on oath, duly signed, it has a great evidentiary value and it is normally presumed that whatever stated at the time of recording of statements under Section 132(4), are true and correct and brings out the correct picture, as by that time the assessee is uninfluenced by external agencies. Thus, whenever an assessee pleads that the statements have been obtained forcefully/by coercion/undue influence without material/contrary to the material, then it should be supported by strong evidence which we have observed hereinbefore. Once a statement is recorded under Section 132(4), such a statement can be used as a strong evidence against the assessee in assessing the income, the burden lies on the assessee to establish that the admission made in the statements are incorrect/wrong and that burden has to be discharged by an assessee at the earliest point of time and in the instant case we notice that the AO in the Assessment Order observes:-
"Regarding the amount of Rs. 44.285 lakhs, it is now contended that the statement u/s 132(4) was not correct and these amounts are in thousands, not lakhs i.e. it is now attempted to retract from the statements made at the time of S & S operations."
Therefore, what we gather from the Assessment Order and on perusal of the above finding that the retraction was at the stage when the assessment proceedings were being finalized i.e. almost after a gap of more than an year. Such a so-called retraction in our view is no retraction in law and is simply a self-serving statement without any material."
44ITA No. 922&923/JP/13 Anupam Marbles Pvt. Ltd. Vs. ACIT
32. Applying the above legal proposition in the instant case, it is noted that the affidavits of Directors and accountants were filed nearing completion of the assessment proceedings after a gap of approximately two year and nine months from date of survey. The contents of the affidavits and each of the contentions raised by the ld AR relating to retraction of the statement has been dealt with at length by the ld CIT(A) and similar contentions have been raised before us. We donot find that the assessee has brought on record any convincing evidence through which an assessee could demonstrate that the statements initially recorded were under pressure/coercion and factually incorrect. The retraction so made is no retraction in law and the AO and the ld CIT(A) has rightly rejected the same. To make matter clear, we reproduce hereunder the following findings of the ld CIT(A) in the context of retraction of surrender of Rs 80,30,000 with which we are in agreement and hereby confirm:
"17.8 I have considered the contentions of the appellant as well as assessment order. It is seen that the basic issue regarding the addition of unsecured loans of Rs. 80,30,000 is similar to the case of M/s Jain & Jain Stones Pvt. Ltd. where the addition was made of unsecured loans to Rs. 45 lacs as discussed in Para 8.8 of this order. The findings of the AO as well as the assessee's contentions are on the similar lines as in the case of M/s Jain & Jain Stones Pvt. Ltd. As such the reasonings at Para 8.8 of this order in case of M/s Jain & Jain Stones Pvt. Ltd. are also applicable in the case of the assessee.
Further, the findings in respect of unique master ID for the various entries are similar to case of M/s Jain & Jain Stones Pvt. Ltd. discussed above as is evident from the remand report of the AO and Para L of the rejoinder dated 08.10.2013 filed by the assessee.
In view of reasoning as in the case of M/s Jain & Jain Stones Pvt. Ltd. discussed at Para 8.8 of this order and discussion above, the addition made by the AO of Rs. 80,30,000 is confirmed."
"8.8 I have considered the contentions of the appellant as well as assessment order. As per the assessment order total amount of Rs. 45 45 ITA No. 922&923/JP/13 Anupam Marbles Pvt. Ltd. Vs. ACIT lacs (written in various names in code words after omitting three zeroes i.e. '000') was found noted in the diary found in the drawer of the table of the Director of the assessee company during the survey proceedings and assessee accepted that these amounts have been credited in the name of Suresh and other names in the books of accounts and they represent the income of the assessee from undisclosed sources in the name of bogus entries. Accordingly, the Director of the assessee company Shri Ashok Kumar Bohra with the consent of other Director Shri Raj Kumar Pokharna, offered the above amount for taxation in the statement recorded. The assessee's contention is that these unsecured loans are creation and fabrication of the I.T. officials of the survey team.
From the facts on the record, it is seen that the said diary was found in the drawer of the table of Director of the assessee company during survey on 18.02.2009. The assessee for the first time vide letter dated 24.02.2009 i.e. after five days of the survey, filed the grievance regarding forceful surrender of income. However, nothing specific was stated even in this letter regarding such bogus entries claimed to have been fabricated by the survey team. There is no reason that such objections would not have been taken by the assessee at the time of survey itself especially when the said documents were confronted to the Director and statement was recorded in this regarding. In fact at the time of survey assessee surrendered the above amount without any objection. Further, assessee has claimed that relevant diary and ball pen were produced before the AO for investigation. However, assessee has not been able to show as to how any other conclusion can be drawn from the contents of said diary by producing the above items. It is not the case of the assessee that said entries are not noted in the diary. The affidavits filed are dated 25.11.2011 i.e. they have been submitted approximately after two year and nine months of survey. The contents of the affidavit are contrary to the findings as per the survey documents. So, affidavits filed after a long gap of survey action cannot be basis for ignoring the findings or survey as brought out in the assessment order.
Further, it may be mentioned that in the affidavit of Shri Navneet Mehta, accountant of the assessee in Para 2, it has been stated that he has made the false credit entries in the computer on forceful order of 46 ITA No. 922&923/JP/13 Anupam Marbles Pvt. Ltd. Vs. ACIT ITO Kishangarh. Similar contention that 'income tax authorities managed to get entered the entries of many fabricated transactions in our computer' have been mentioned in Para 3 of affidavit of both the Directors of the appellant company. However in the submission during appeal at Para 6(E) supra, it has been mentioned that false entries of Rs. 45 lac were entered by survey team in the computer of the appellant company. Both the above contentions are contrary to each other which shows that the claim of the assessee is not sustainable. Further, the contents of the affidavits are not supported by any evidence.
It has been mentioned by the appellant that false entries of Rs. 45 lacs was entered by the survey team in the computer and original hard disk has been produced before the AO for investigation during assessment proceeding and same is ready even at the appellate stage. In support of his contentions, the assessee has also submitted the copy of the safe account along with the master ID number against various entries running from 1042-1058 in name of various persons along with the date, particulars, voucher type, voucher number, debit amount etc. The said copy of safe account along with the submission regarding contents of computer filed by the assessee in this regard were sent to the AO for remand report and AO has given his comments in his remand report which have been reproduced supra.
In this context regarding the entries in the computer, it may be mentioned that said hard disk of the computer was not impounded during the survey. After the survey, assessee for the first time produced the said hard disk at the time of assessment which was completed on 13.12.2011 and claimed that it is same original hard disk. In such a case, reliance cannot be placed on a unsealed hard disk of the computer and no specific details of configuration of original hard disk are on record. Whether the hard disk is same or not is itself not proved. Further, the assessee has not pointed out any objection regarding any specific entries claimed to have been made during the survey by the survey team in the computer in his grievance petition dated 24.02.2009 which was filed five days after the date of survey. If the averments of the assessee are assumed to be true, the above facts should have been brought on record immediately during and after survey. Further, the AO has pointed out that there were no master ID numbers in the original 47 ITA No. 922&923/JP/13 Anupam Marbles Pvt. Ltd. Vs. ACIT safe account while assessee in the printout now submitted has stated the master ID numbers for the first time. Hence there is difference between the safe account noted at the time of survey and which has been filed now by the assessee. Further, even for the sake of assumption, it is assumed that the entries were made at the one time on the day of survey, it has not been proved that it was the survey team which has made the entries in the computer of the assessee. In this context, even in A/R's reply dated 08.10.2013 in respect of remand report of the AO, it has been mentioned in Para E of the reply as under:
"E in fact and in practice, business man generally maintains raw/temporary books in addition to computerized books in absence of regular and expert computer accountants or for convenience and therefore, entries in the computer are made as per time availability and suitability of the accountant. On the same time, all the transfer entries are generally not made on day to day basis but these are also made as and when accountant gets the time irrespective of the date of the voucher. It also happens that accountant corrects/rectifies entries in the system as and when he feel and find the mistake and therefore, in those circumstances also, practically entries in the computerized books are not necessarily made on the actual date of the voucher and therefore, voucher number is allotted in the date which is entered while making the entry irrespective of the sequence of date and time of actual entry."
If seen in above context as in the case of entries for vouchers stated above, it is equally possible that entries in the safe account in the computer were made at one time in above manner while temporary book records were maintained as in the diary found in the drawer of the assessee. The assessee's contention that both the contents of the diary and as well the entries in the books of accounts regarding the bogus unsecured loan of Rs. 45 lacs were got written by force by the survey team is not acceptable. It is beyond comprehension that in the business premises of the assessee which was controlled by the assessee in every respect, in presence of the Directors and employees, any outsider or a person in the survey team will be able to hold of above diary and computer and can make the false entries in the computer or get them written in the diary by force. Had it been so, the assessee would have definitely taken up the issue at the time of survey or immediately 48 ITA No. 922&923/JP/13 Anupam Marbles Pvt. Ltd. Vs. ACIT thereafter. The assessee for the first time made such contentions regarding the specific entries at the time of assessment after a substantial gap of time. So, no cognizance given to above claim.
The business affairs of the assessee are controlled by the Directors and they run the business as deemed fit. The survey was conducted as per provisions of Sec. 133A of the I.T. Act at the business premises of the assessee and findings of the survey have been considered by the AO while making the above addition. Further, AO has also pointed out that Shri Ashok Kumar Bohra, MD of the company is highly qualified and is fully conversant with the business affairs. It may be mentioned that assessee himself after the survey had paid advance tax of Rs. 17 lac till 27.03.2009 on the income surrendered and only balance amount of Rs. 9 lac was not paid as pointed out by the AO in the assessment order. If assessee had any objection to the survey results, there was no need for the assessee to pay any amount of tax on the surrendered income. The assessee's contention that decision of Hon'ble Supreme Court in Pullangode Rubber Co. Ltd., vs. State of Kerala (1973) 91 ITR 18 relied upon the is a old judgment does not in any case change the ratio of the said decision. All the necessary facts on record for deciding the issue have been considered and in fact remand report of the AO have been called twice so as to seek clarification regarding the contentions made by the appellant.
In view of above discussion, the addition made by the AO of Rs. 45,00,000 is confirmed."
33. Similar contentions have been raised by the ld AR regarding retraction of surrender relating to cash and goods which have been dealt with by the ld CIT(A) at length in para 6.5 and para 7.5 noted above and on the same reasoning, as we have discussed above, it doesn't inspire any confidence in acceppting such retraction. We accordingly confirm the said findings of the ld CIT(A).
34. In light of above discussions and in the entirety of facts and circumstances of the case, taking into consideration the contentions of the ld 49 ITA No. 922&923/JP/13 Anupam Marbles Pvt. Ltd. Vs. ACIT AR and ld DR both verbally and through written submission as well as the legal pronouncements, we hereby confirm the findings of the ld CIT(A) and the additions so made by the AO is hereby confirmed. In the result, assessee's ground of appeal no. 3, 4 & 5 are dismissed.
35. In the result, the appeal of the assessee is dismissed.
ITA No. 923/JP/1336. In ITA No. 923/JP/13, the facts of the case are exactly identical wherein the survey was conducted at the business premises of M/s Jain & Jain Stones Pvt Ltd and the statement of the directors who also happened to be the directors of M/s Anupam Marbles were recorded. Based on statement so recorded and other evidence so gathered during the course of survey, the additions were made to the returned income of the assessee company. Similar grounds of appeal have been taken by the assessee company and similar contentions have been raised before us as we have noted initially in case of ITA No. 922/JP/13 and as agreed and submitted by both the parties. Hence, our findings and directions in ITA No. 922/JP/13 shall apply mutatis mutandis to this matter as well. In the result, the appeal of the assessee is dismissed.
In the result, both of the appeals of the respective assessees are dismissed.
Order pronounced in the open court on 07/07/2017.
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(Kul Bharat) (Vikram Singh Yadav)
U;kf;d lnL;@Judicial Member ys[kk lnL;@Accountant Member
Jaipur
Dated:- 07/07/2017
Santosh*
vkns'k dh izfrfyfi vxzsf"kr@Copy of the order forwarded to:
50ITA No. 922&923/JP/13 Anupam Marbles Pvt. Ltd. Vs. ACIT
1. [email protected] Appellant-Anupam Marbles Pvt. Ltd., E-201, RIICO Industrial Road, Madanganj-Kishangarh.
B. The Appellant- Jain & Jain Stones Pvt. Ltd. Jaipur Bye-pass Road, RIICO Industrial Road, Madanganj-Kishangarh.
2. izR;FkhZ@The Respondent-ACIT, Circle-1, Ajmer.
3. vk;dj vk;qDr@CIT
4. vk;dj vk;qDr¼vihy½@The CIT(A)
5. foHkkxh; izfrfuf/k] vk;dj vihyh; vf/kdj.k] t;iqj@DR, ITAT,
6. xkMZ QkbZy@Guard File (ITA No.922& 923/JP/2013) vkns'kkuqlkj@By order, lgk;d iathdkj@Assistant Registrar.
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