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2016 (5) TMI 1172 - AT - Income TaxSuppression of sales - Held that:- When the assessee had filed annual return showing higher turnover and paid the amount of CST on the basis of CST sales reported in annual return and this is not shown to us that any rectification request was made before sales tax authority or that any refund was received or claimed from the sales tax authority on account of higher amount of CST sales reported in annual return by mistake, this is not acceptable that there is a mistake in the amount of CST sales as per the annual return filed before the sales tax authority. Monthly returns are filed earlier after each month and thereafter, annual return is filed after the end of the financial year and in the present case, the annual returns for the financial year 2004-05 was filed on 01-06-2005. Hence, it cannot be claimed that there is a mistake in the annual return only on this basis alone that figure of sale reported in monthly return is less, as compared to figure of turnover reported in annual return because the annual returns are filed after proper verification and generally, we find that there may be mistake in the monthly return and not in the annual return. Mere comparison with the monthly return is not sufficient, particularly when there is no rectification application filed before the sales tax authority, asking for rectification in annual return and asking for refund of excess sales tax paid on the basis of mistake in the annual return. Hence, we find that no merit in this contention that there is mistake in the annual return - Decided against assessee Addition of difference between the value of stocks falsely declared to Canara Bank as at 31-03-2004 and 31-03- 2005 - Held that:- We find that as per the Tribunal’s order in assessee’s own case for assessment year 2004-05 wherein it was held that closing stock as on 31-03-2004 should be considered as opening stock on 01-04-2004 relevant for the assessment year 2005-06. In the present year, the closing stock as per stock statement given to Canara Bank as on 31-03-2005 is ₹ 51.70 lakhs. The closing stock as per the stock statement submitted to Canara Bank as on 31-03-2004 was of ₹ 35,74,910/- and the AO made the addition of difference amount only of ₹ 15,95,091/-. This is in line with the Tribunal order in assessee’s own case for the assessment year 2004-05 - Decided against assessee Addition of bogus creditors - Held that:- The addition in dispute as per this ground of ₹ 7.24 lakhs is in respect of these creditors. It is also noted by the learned CIT(A) that even in appeal, the assessee could not establish anything better. The assessee has filed confirmation of these three creditors by way of additional evidence on pages 338 to 340 of the paper book but this is not a case where confirmation was not available earlier. In fact, these three creditors filed confirmation before the AO also and they appeared before the AO and confirmed only part amount of the credits and the AO allowed the benefit to the extent of credit amount confirmed by these creditors. There is nothing brought on record before any of the authorities below or before us that why these parties confirmed only part of the amount of the credit when they appeared before the AO. Therefore, on the basis of these confirmation letter submitted before us as additional evidence, no relief can be allowed to the assessee in view of the fact that these parties appeared before the AO and confirmed only part amount of credit and nothing has been brought on record by the assessee to show that there was any mistake in the statement of these three parties before the AO, as per which they confirmed only part amount of credits - Decided against assessee Unexplained cash deposit - Held that:- The entire amount of closing stock of earlier year has been considered by the AO as opening stock of the present year and the additions was made by the AO to the extent of excess of closing stock of the present year over such opening stock. It means that the entire amount of opening stock has been considered as part of the closing stock of the present year and therefore, such opening stock cannot be available for explaining cash deposit in the bank because, even if it is held that opening stock was sold and the sale price was used for purchasing different items which were available in closing stock then also, G.P addition has to be made in respect of such sales out of opening stock. Under these facts, the assessee does not deserve any relief on this point. Moreover, ld.CIT(A) has no power to set aside the matter to the file of the AO and he has to decide the issue himself and if required, he may obtain remand report from the AO. In the present case, ld.CIT(A) has restored the matter to the file of the AO with some directions. The order of the ld. CITA) is not sustainable and therefore, we set aside his order on this issue and restore the matter back to his file for a fresh decision Validity of assessment - period of limitation - Held that:- We find that as per the provisions of sub-sec.2A of sec. 153 of the IT Act, 1961, the AO had to pass a consequential assessment order after setting aside of the matter to his file by the Tribunal as per its order u/s 254 of the IT Act. The present assessment order had been passed by the AO after passing of the order by the Tribunal u/s 254(2) of the IT Act as per which, the scope of the original Tribunal order was enlarged by the Tribunal and therefore, we find force in the submission of the ld. DR of the revenue that the period of limitation as provided in sub-sec.2A of sec.153 has to be considered from the receipt of this order in M.P. in the office of CIT and when this is done than it is clear that the present assessment order is not time barred because the same is passed before the expiry of one year from the end of FY in which the order u/s 254(2) of the IT Act was passed by the Tribunal. - Decided against assessee.
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