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TMI Blog2014 (6) TMI 476X X X X Extracts X X X X X X X X Extracts X X X X ..... irm and without allowing the appellant to argue its case and to refer to the paper book including written submissions and evidences filed before the authorities below which is against the principles of natural justice and that of right of hearing in view of trite law that 'no one should be condemned unheard?' II)Whehter the ITAT was justified in disposing of the Miscellaneous petition vide orders dated 16.4.2013, Annexure A.6 by dismissing it without appreciating the fact that during the initial hearing of the appeal, the Hon'ble ITAT has simply closed the hearing with the observation that from the facts it is apparent that the matter has been wrongly decided against the assessee firm and in view of judgment of the Jurisdictional High Court and that of Hon'ble M.P.High Court the capital introduced by the partners in the firm has to be added in the hands of the partners and not to that of the firm so that the ITAT should have recalled its initial order dated 1.6.2010? III)Whether the ITAT was justified in disposing of the appeal vide orders dated 1.6.2010, Annexure A.5 by dismissing it without appreciating the fact and making the addition of the impugned amount in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ppeal before the Commissioner of Income Tax (Appeals) [CIT(A)]. Vide order dated 19.12.2007, Annexure A.2, the appeal was dismissed by the CIT(A). Still not satisfied, the appellant filed appeal before the Tribunal. Vide order dated 31.7.2008, Annexure A.3, the Tribunal allowed the appeal and remanded the case back to the CIT(A) to decide the appeal of the assessee afresh in accordance with law. Vide order dated 13.3.2009, Annexure A.4, the CIT (A) again dismissed the appeal and confirmed the addition. The assessee again approached the Tribunal by filing appeal. Vide order dated 1.6.2010, Annexure A.5, the Tribunal dismissed the appeal. Thereafter, the assessee filed miscellaneous application before the Tribunal for recalling the order dated 1.6.2010. The said application was also dismissed by the Tribunal vide order dated 16.4.2013, Annexure A.6. Hence the present appeals by the assessee. 4. There is delay in filing both the appeals. It was urged on behalf of the appellant that application under Section 254(2) of the Act was filed for rectification of the order dated 1.6.2010, Annexure A.5, which was decided after lapse of more than two and a half years and it was in view thereof ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... are claimed to have been made. Scrutiny of copies of accounts of all these farmers reveals that there was debit balance with almost all alleged farmers and no rent whatsoever has been credited to their accounts on account of use of cold storage by the alleged farmers. Further it is also noticed that large amount has been advanced to the alleged farmers but assessee firm has no iota of the addresses of the alleged farmers. In case none of the alleged farmers does not use the cold storage of the assessee, the assessee has no option except to recover the alleged advances to them. In such an eventuality it is not understood as to how the assessee will recover the amount advanced to them in the absence of addresses. All these facts lead to the conclusion that books of accounts maintained by assessee firm have not been maintained in the manner from which the true profits can be deduced. Considering all the facts conjointly, it is held that the money introduced in the names of partners was infact earned by firm from its business of cold storage. The assessee firm has relied upon the judgments in the case of CIT v. Burma Electro Corp (2001) 252 ITR 344 (Pb. & Haryana). With due regard to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te with the bank is claimed to have been settled in November 2002. After the settlement of the dispute with the bank. The assessee could not be afraid of introduction of money in lumpsum. Instead of introducing the money in lump sum after settlement of dispute with the bank, the partners preferred to introduce money installments. This fact falsify by the assessee's claim that the money was not introduced because of dispute with the bank. Infact partners were not in possession of any money as on the day of settlement of dispute with the bank. In reality they wait for the receipt of money from the tenants of the cold storage and introduced the money as and when it was received from the users of the cold storage. In view of these facts and circumstances of the case it is evident that the firm has introduced its unaccounted income in the names of the partners. The case is therefore squarely covered under the case of Swati Dayal, referred to supra. In view of the facts and circumstances of the case it is held that the money introduced in the names of partners is the income of the firm and accordingly brought to tax in the hands of the firm. Accordingly addition of Rs.11 lacs is ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e requisite evidence, which has not been done. Having regard to the fact situation noted by the CIT(Appeals), we are satisfied that enough opportunities were provided by the CIT (Appeals). Therefore, in our view, the proposition canvassed by the assessee cannot be applied to the facts of the present case." 12. The Tribunal vide order dated 16.4.2013, Annexure A.6 passed in the application filed by the assessee for rectification of the order dated 1.6.2010, Annexure A.5 observed as under:- "No further evidence was furnished before the tribunal and the same has been noted and an addition of Rs. 11 lacs has been upheld by the Tribunal. In view of the above said facts we find no merit in the allegation made vide para 1, wherein it has been alleged that the matter has been wrongly decided against the applicant firm and reliance for that has been made on the decision of the Hon'ble Jurisdictional High Court and the Hon'ble Madhya Pradesh High Court. Both the decisions have been considered by the Tribunal while adjudicating the issue in hand and the recourse made by the applicant vide present Miscellaneous Application is not sustainable in view of the limited mandate of section ..... X X X X Extracts X X X X X X X X Extracts X X X X
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