Home Case Index All Cases Income Tax Income Tax + HC Income Tax - 2019 (3) TMI HC This
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2019 (3) TMI 76 - HC - Income TaxAssessment u/s 153A - Validity of search on grounds of absence of panchas - preparation of mahazar as also recording of statements under oath, were carried out in the presence of Police and without any panchas - After such proceedings were carried out two persons were called from the outside and forced to sign the mahazar - HELD THAT:- If that was the case, we agree with the Counsel that probably, the assessee could not have raised objections before the search party itself, especially when it is averred that the search was in the presence of Police. However, that does not preclude the assessee from raising a contention before the Assessing Officer when notice is issued in the proceedings under Section 153A. If that had been raised at the first instance and cross-examination was not allowed by the Assessing Officer, definitely, it could have been considered by any of the Appellate Authorities. The fact that even then, the assessee could have won over the panchas would be irrelevant insofar as the passage of time having occasioned only by reason of the Assessing Officer having not followed the requirement of law, of examining the panchas when it was first sought for. Having not raised the contention before the Assessing Officer we perfectly agree with the Standing Counsel that if it is permitted at the appellate stage, it could only lead to chaos. Referring to decision in Pooran Mal [1973 (12) TMI 2 - SUPREME COURT] which itself specifically spoke of the safeguards insofar as a search under Section 132 held that compliance with the provisions of the CrPC, with respect to search and seizure is the most important safeguard insofar as the acceptability of the search is concerned. If there is no compliance with the most important safeguard, definitely it should fail. We have no quarrel with the proposition as laid down in the cited decisions. But however, the contention raised here is with respect to the absence of panchas; which we are of the firm opinion, should have been raised at the first instance. The non-presence of panchas raised for the first time before the First appellate authority after a period of three years from the search conducted, cannot at all be countenanced. There was no valid ground for the Tribunal to cancel the assessment in the light of the order of the co-ordinate Bench which the Tribunal has specifically referred to and found to be distinguishable. The questions to be answered in favour of the revenue Limitation under Section 153B - contention taken up is that the order was dispatched after the office hours - HELD THAT:- Requirement as noticed by the Tribunal from the judgment of this Court in Cochin Plantations Ltd. v. State of Kerala [1997 (2) TMI 76 - KERALA HIGH COURT] is to ensure that by the last day of limitation, the order is beyond the control of the authority concerned; ensuring that no changes or modifications are made after the expiry of limitation period. Hence if a conscientious officer passed the order on the last day of limitation and dispatched it after office hours, it cannot be said to be a factor vitiating the order or enabling the limitation period to be applied to find a bar for issuing the said order. - Decided against the assessee Rejection of books of accounts - estimation of turnover - pre-search enquiry had revealed sale of 2.02 gms of gold locket on the basis of an estimate slip which did not find a place in the accounts of the assessee - HELD THAT:- As search revealed estimate slips issued for a period of 15 days which totalled a sale of 175.174 gms; whereas the sale accounted for the said 15 days was only 17 gms. This is the basis on which the Assessing Officer rejected the accounts and estimated the turnover. The materials as revealed in the search in our opinion, was sufficient to reject the books of accounts of the assessee. Estimation of Income - estimation of turnover 10 times - Disclosed Gross Profit of 36.55% to 48.08% in its accounts. - HELD THAT:- IA reasonable computation was made considering the Gross Profit available in that line of business and a far lower gross profit of 20% was adopted for all the years. The estimation was made at ten times the returned turnover, finding that only 10% of the sales are accounted. The addition of ten times turnover was reduced by the First Appellate Authority to five times. The Tribunal modified it slightly to make it six times. There is absolutely no question of law arising from the estimation. Personal investment of the Managing Partner - HELD THAT:- The learned Standing Counsel Sri.Jose Joseph also points out that there was no separate addition made on that count and the addition made is only on the turnover at ten times, reduced later to six times, with gross profit @ of 20%. We also find that such a ground was not taken up before any of the appellate authorities. Hence we do not think that such a ground can be raised at the stage of appeal under Section 260A - Assessee appeal dismissed.
|