TMI Blog2021 (9) TMI 445X X X X Extracts X X X X X X X X Extracts X X X X ..... t and added the same in the income of the assessee, therefore, we direct to delete the addition qua this issue. Appeal of the assessee is allowed. - ITA No. 297/JODH/2019 - - - Dated:- 6-9-2021 - Shri Sandeep Gosain, Judicial Member And Shri Vikram Singh Yadav, Accountant Member For the Assessee : Shri Suresh Ojha, Adv. And Shri Sudarshan Jhabak, CA. For the Revenue : Smt. Sanchita Kumar, CIT-DR ORDER PER: SANDEEP GOSAIN, J.M. The present appeal has been filed by the assessee against the order passed by the ld. CIT(A)-IV, Jaipur dated 07/09/2019 for the A.Y. 2012-13 wherein following grounds have been taken by the assessee: 1. That the order passed by the Assessing Authority and sustained by the Commissioner of Income Tax (Appeals) is illegal and against the law. 2. That the order is illegal in view of the fact that the Commissioner of Income Tax (Appeals) as well as the Assessing Authority fails to cross examine the deponent of the affidavits submitted before the Assessing Officer. In view of judgment of Hon ble supreme Court delivered in the case of M/s Mehta Parekha Co., the contents of the affidavit should have been accep ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gainst the said order of ld. CIT(A), the assessee has preferred the present appeal before the ITAT on the grounds mentioned above. 5. All the grounds of appeal are interrelated and interconnected but by way of this appeal, the assessee is basically aggrieved by the order of the ld. CIT(A) in confirming the action of the A.O. and submitted that the amount seized from the assessee does not belong to him but belonged to M/s Lux Industries Ltd.. In this regard, the ld AR appearing on behalf of the assessee has reiterated the same arguments as were raised before the ld. CIT(A) and also relied on the written submissions filed before the Bench and the same is reproduced below: That the assessee successfully discharges the burden by finding respective evidence is available on record in the paper book. The assessee submitted his affidavit stating that amount belongs to the Lux Industries Limited; also submitted affidavit of Director of Lux Industries Limited which too was also confirm in their response of summon. All this fact established that amount belong to Lux Industries Limited and with the Directory is also accepting that the amount belongs to company and not Ashok Banthia ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rial it is obvious that the money carried by you amounting to ₹ 25 lacs was your unexplained income. The subsequent averments of Sh. Ashok Kumar Todi appear to be a cooked-up story and hence, the same is not acceptable. Thus, you have failed to discharge your burden of proof as per Indian Evidence Act that an amount of ₹ 25 lacs seized from your possession does not belong to you. The assessing officer having no evidence, but rejected the explanation by taking shelter of world cooked story. In spite of the request the department fails to supply any evidence against the assessee and rejected the explanation for the sake of rejection. There are cantina of judgment that real owner should be taxed. Shri Ashok Bhatia that is the assessee in the statement stated that the amount belongs to Lux Industries Limited and also submitted copy of the affidavit, which is available at page number 6-9 during the course of assessment proceeding during the course of assessment proceeding the assessee also submitted and affidavit of the Director of Lux Industries Limited sh Ashok Todi. The copy thereof is available at page 13 of paper book. It will be worthwhile to submit that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... di admitted that the amount belongs to the Lux Industries Limited. The relevant portion of statement is been reproduced here under:- Q. No. 4 Since Mr. Ashok Banthia is your commission agent and entitled only to a small commission why as he carrying so much cash of about ₹ 25 lakhs on 19.04.2011? Ans. The amount pertains to sale proceeds of a particular lot of T-shirts of Kolkata Knight Riders sold in Delhi and since the goods originally belonged to Kolkata and there was requirement of cash in Kolkata, Mr. Ashok Banthia was directed to bring the cash to Kolkata. Q. No. 5 How much commission is paid to Mr. Ashok Banthia on an average per annum? Ans. The amount of commission depends on sales made through him. The amount of commission is around ₹ 5 to ₹ 6 lakhs per annum is respect of sales made on behalf of Lux Hosiery Ltd and Todi Hosiery Ltd. Q. No. 6 Mr. Ashok Kr. Banthia in his statement recorded by DDIT (Inv.), Unit-V(1), Delhi on 19.04.2011 has stated that he is employed as Sales Head in Delhi for Lux Industries Ltd. and his annual salary is ₹ 3 lakhs per annum. What do you have to say in this regard? Ans. Mr. As ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... It is submitted that the amount so found is belongs to the Lux Industries Limited Kolkata in this respect I want to draw your kind attention towards the fact that in the affidavit Shri Ashok Banthia category speaking and the owner of the amount i.e. Lux Industries Limited himself accepting that amount belongs to him. Subsequently and affidavit of Shri Ashok Todi the Director of the company was also submitted and that too was confirm in course of recording the statement by the counterpart of the assessing authority of Kolkata in the statement it will be worthwhile to submit here that subsequently the Commissioner of Income Tax ( appeals) raised query and directed to submit the evidence in respect of availability of rupees 25 lacs in the shape of cash book 70-73 and that too was submitted in this way all the information was obtained and made available to the department, The relevant information is at page no.51 to 73 of paper Book. In this fact and circumstances you will observe that the documentary evidence so submitted is lead to the conclusion in support of the claim of the assessee and that the amount not belongs to assessee. In these facts and circumstances you are requeste ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... High Court, Jaipur Bench, in case of the Assistant Commissioner Taxes Officer Vs. Kishori Shyam Brijesh Kumar reported in 93 STC Page 213 (Raj.). The Hon'ble Court held that missing of read over and accepted over the signature the Hon'ble Court not accepted the statement as correct. In the fact and circumstances you will observe that admission cannot be considered to be an admission at all since even the basic requirement of law has not been complied with. It is submitted that during the course of assessment the assessee come forward with judicial pronouncement in person as well as in writing in the written submission submitted before the Commissioner of Income Tax (Appeals). I am herewith attaching to one chart of the pronouncement on which the assessee relied before the Commissioner of Income Tax (Appeals) which is at page 49 of paper book. From the perusal of same you will observe that Commissioner of Income Tax (Appeals) have not followed the judgment having the character of binding nature, as per Article 141 of constitution of India. From the list you will observe that there are judicial pronouncement delivered by Rajasthan High Court, Supreme Court and Territor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pported the orders of the lower authorities and submitted that as per the statement of Mr. Todi, Director of the Lux Industries, no cash was carried by the assessee for and on behalf of the company either on earlier occasion or subsequently. She also stated that the assessee failed to explain the source of cash amount seized from him. The ld. CIT(A) has rightly upheld the action of the Act. 7. We have considered the rival contentions and carefully perused the material placed on record. As per the facts of the present case, we noticed that the assessee is a commission agent and received commission as agent of M/s Lux Industries Ltd., Kolkata, he filed his return of income for the year under consideration declaring total income of ₹ 2,20,007/-. A search and seizure operation was carried out on 19/04/2011 at New Delhi Airport and during search, amount of ₹ 25.00 lacs were found and seized from the assessee. On verification, the assessee told that the cash amount of ₹ 25.00 lacs seized from the him belong to the company M/s Lux Industries Limited, Kolkata and the assessee is connected with the said company and posted at Delhi as commission agent, therefore, the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lakhs per annum is respect of sales made on behalf of Lux Hosiery Ltd and Todi Hosiery Ltd. Q. No. 6 Mr. Ashok Kr. Banthia in his statement recorded by DDIT (Inv.), Unit-V(1), Delhi on 19.04.2011 has stated that he is employed as Sales Head in Delhi for Lux Industries Ltd. and his annual salary is ₹ 3 lakhs per annum. What do you have to say in this regard? Ans. Mr. Ashok Kr. Banthia is the commission agent in Delhi and no fixed salary is paid to him. Statement of Shri Bhaskar Poddar, who is an accountant in M/s Lux Industries Ltd. was also recorded and in his statement, Sh. Bhaskar Poddar also stated that the amount belongs to Lux Industries Limited. The statement of Bhaskar Poddar also established that the amount belongs to Lux Industries Limited. In view of the above statement, we can say that the amount seized from the assessee does not belong to him but belonged to the Lux Industries Limited. However, as per facts of the present case, the A.O. adopted the method of pick and choose certain words from the statement of Sh. Bhaskar Poddar and reached to a contrary conclusion. The A.O. has chosen only those words which were more favourable to the Revenue where ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l Corporation 273 ITR 262 (Mad) wherein it was categorically held that if the Sales tax authorities accept the sale belonging to a party then in that eventuality, the said findings of the Sales tax authorities are binding on the income tax authorities and the A.O., thus, in this way, the income tax authorities has not power to scrutinize the said documents again in respect of sales which have already accepted by the Sales tax authorities. As from the very beginning, it has been specifically stated by the assessee that M/s Lux Industries Ltd. had already shown this amount of sales at ₹ 25.00 lacs in their sales tax returns. Moreover, Shri Ashok Todi, director of M/s Lux Industries Ltd. has categorically mentioned that Mr.Bhaskar Poddar who has also got his statement recorded is a very junior staff and mainly looking after loading and unloading and some times preparation of invoices. It was submitted that sales are sometime recorded in draft sheets and the invoices are prepared at a later date against which VAT has also been paid and in this regard challan of payment of VAT has also been placed on record, which is at page No. 62 of the paper book which shows that the amount so ..... X X X X Extracts X X X X X X X X Extracts X X X X
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