TMI Blog2012 (9) TMI 72X X X X Extracts X X X X X X X X Extracts X X X X ..... - TC(A). Nos. 1150 to 1152 of 2006 - - - Dated:- 3-8-2012 - Chitra Venkataraman And K Ravichandrabaabu, JJ. For Appellant : Mr. M P Senthilkumar For Respondent : Mr. T R Senthil Kumar Standing Counsel JUDGEMENT Per : Chitra Venkataraman, J : The assessee has filed the above appeals as against the order of the Income Tax Appellate Tribunal for the assessment years 1995-96 and 1996-97. The T.C.(A).No. 1150 of 2006 was admitted on the following substantial questions of law:- "(i) Whether on the facts and in the circumstances of the case, the Income Tax Appellate Tribunal was right in law in holding that the interest under Section 234B is leviable even if there was no liability to pay advance tax is fastened on assessee, since at the due dates of payment of advance tax, the assessee was incurring losses and could not have comprehended taxable income at a later date? 2. Whether on the facts and in the circumstances of the case, the Appellate Tribunal was right in law in holding that the levy of interest under Section 234B is consequential?." 2. The T.C.(A).Nos. 1151 and 1152 of 2006 were admitted on the following substantial questions of law:- "(i) W ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ompletion of project for the purpose of arriving at the income could not be accepted and the percentage completion method alone had to be adopted in arriving at the assessable income of the assessee. The Commissioner of Income Tax (Appeals) held that since the assessee was engaged in the activity of civil construction, Section 44AD of the Act was applicable. Consequently, the assessment was directed to be redone by the Assessing Officer. However, as regards the method of accounting, the Commissioner of Income Tax (Appeals) modified the order of the Assessing Officer. Aggrieved by this, the Revenue went on appeal, so too the assessee. 5. As far as the estimation of income on the basis of pro rata construction is concerned, the Tribunal pointed out that when unaccounted income on the basis of the diary had been considered for addition, the expenditure noted therein also had to be considered for the purpose of deduction. Thus, agreeing with the assessee on this issue, the Appellate Tribunal remanded the assessment back to the Officer to find out how much of the expenditure was allowable expenditure with respect to the particular project as claimed by the assessee. In the light of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Officer pointed out that the reply was evasive. However, the statement shows that there were 15 parties other than J.B. Exports, who had paid Rs.2.69 lakhs in cheque and a further sum of Rs.1.82 crores as cash payment. Pointing out to the identical workings in both the slips marked 10 in the seized bunch relating to the transactions of J.B.Exports, the Officer came to the conclusion that the unaccounted portion of the transaction was to the tune of Rs.86.50 lakhs and hence, the stand of the assessee that the income to be estimated could be to the tune of money actually seized viz. to the extent of Rs.25.86 could not be accepted. Aggrieved by the addition of Rs.86.50 lakhs, the assessee went on appeal before the Commissioner of Income Tax (Appeals). The Commissioner of Income Tax (Appeals) pointed out to the slips relating to G6 and G7 and held that unaccounted portion, could be Rs.42.86 lakhs alone and not Rs.86.50 lakhs. To that end, the Officer was directed to deal with further addition. Apart from this, there was yet another addition regarding Rs.1,17,350/- towards sale of scrap at the time of demolition of old building. The Commissioner of Income Tax (Appeals) however rejec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed counsel pointed out that when the assessee's Accountant had wrongly noted the rate of sq. ft, there being no material at the hands of the Revenue, the addition as ordered by the Tribunal is unsustainable. Reiterating the reasoning of the Commissioner of Income Tax (Appeals) learned counsel sought for cancellation of the order of the Tribunal. 13. Heard learned counsel for the assessee as well as learned Standing counsel for the Revenue and perused the materials available on record. 14. We do not find any justifiable ground to interfere with the order of the Tribunal. Firstly the assessee does not dispute the fact that there was search in the premises. During the search, certain loose sheets were seized. These slips indicated the business transaction of the assessee. One particular transaction was the sale to JB Exports in respect of two shops viz., G6 and G7. Thus, the assessee does not as a matter of fact disputes that the seized materials related to its business transaction recovered at the time of search conducted in the business premises of the assessee. The only challenge made by the assessee herein as to the order of the Tribunal confirming the order of the Assessing O ..... X X X X Extracts X X X X X X X X Extracts X X X X
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