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TMI Blog2015 (4) TMI 1X X X X Extracts X X X X X X X X Extracts X X X X ..... nventories of stock prepared by the survey team during the course of survey and the stock shown by the assessee as per its books of account on that date. Such direction was given by the Bench for the first time on 26/09/2014 and thereafter, on several occasions but such evidences were not produced by the Department and thereafter again on 25/11/2014, similar directions were given to the Revenue with last opportunity and the date was fixed for compliance on 16/12/2014. The required evidence was not produced on 16/12/2014. Again opportunity was given to the Revenue for producing those evidences and the date was fixed on 15/01/2015. On this date also, such evidences were not produced and one final last opportunity was given to the Revenue for making compliance and the date was fixed on 10/02/2015 but on this date also, the Revenue did not produce this evidence and hence, the appeals were heard in the absence of those evidences. 5. None appeared on behalf of the assessee on the appointed date of hearing. Neither anybody appeared on the present date nor any request was filed for adjournment and therefore, we proceed to decide the appeals ex-parte qua the assessee. 6. We have considere ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e incorrect taking of stocks by the department and retraction as to the surrender which was done under pressure. He has also noted that the Assessing Officer has also not commented upon or controverted or tried to examine the arguments and affidavits which were also placed before him during the assessment proceedings. We have seen that before us also, in spite of providing several opportunities, the survey folder and assessment folder were not produced before us by learned DR of the revenue. Without carrying out actual weighment, how the stock inventory can be prepared when the bags were not having uniform weight. Considering all these facts, we do not find any reason to interfere in the order of CIT(A) on this issue. Accordingly, this ground of Revenue is rejected. 7. Ground No. 2 is as under: "2. That the Ld. Commissioner of Income-tax (A) has erred in law and on facts in accepting the books reliable, without appreciating the fact that the difference in stock was found at the time of survey." 8. Learned D. R. of the Revenue supported the assessment order. 9. We have considered his submissions. We find that this issue was decided by CIT(A) as per Para 14 of his order, which is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... have considered his submissions. We find that this issue was decided by learned CIT(A) as per Para 18 of his order, which is reproduced below for the sake of ready reference:- "18. I have gone through the trial balance and written submissions given by the appellant. The appellant had pointed out specific reasons why this document is incorrect and cannot be relied upon. It had given such detailed explanations to the AO during the course of assessment and had requested the AO to get the same compared with the documents seized during the course of survey. The AO did not point out any defect in the objections given by the appellant nor did he comment on the letter submitted by a computer expert on 14.3.2005 (date of survey being 9.3.2005) that the software programme was corrupt and incorrect. Furthermore the AO did not also reconcile any of the figures in the alleged trial balance with the books. The appellant has pointed out that the sales as per that trial were Rs. 6,34,57,711/- only whereas the sales as on that date as per regular books of accounts were Rs. 17,35,36,988/- and the sales and purchases have been duly accepted by the AO further the balances of bank, parties, fixed asse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g the appeal of the assessee without appreciating that during the course of survey it was revealed that production/manufacturing of cattle feeds by the assessee firm and its sister concern were carried on at the same premises and both the concerns were manufacturing the same brand namely "KAPILA". This proves that the assessee has come into existence by the splitting up of an existing unit. Thus the condition laid down u/s section 80IB(2)(i) is not satisfied. 3. That the order of the learned CIT(A) is erroneous in law and on facts as learned CIT(A) has ignored the ratio of the judgment passed by the Hon'ble Supreme Court in the case of Textile Machinery Ltd. vs. CIT [1977] 107 ITR 195 and CIT vs. Orient Paper Mills ltd. [1989] 176 ITR 110. The ratio of this decision is squarely applicable to the facts of the present case. 4. That the order of the Learned Commissioner of Income Tax (Appeals)-I, Kanpur is erroneous in law and on facts as he has not relied upon, the facts revealed from the statement of Shri Anil Kumar Gupta, Administrative Officer of the assessee firm and also by ignoring the ratio of 'decision given in the following cases: i) Narayan Bhagwantrao Gosavi Bat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e failed to prove identity, credit worthiness and genuineness of the transactions." 19. Learned D. R. of the Revenue supported the assessment order. 20. We have considered his submissions. We find that this issue was decided by CIT(A) as per Para 9 of his order, which is reproduced below for the sake of ready reference:- "9. From the above, it is evident that the facts of the case were not examined by the AO properly and the order was made in haste. The appellant has filed the order in respect of A.Y.2004-05 passed under section 147/143(3) by the AO stating that all the balances of parties (stated to be bogus by the AO in this assessment year) were duly verified and found to be correct. These proceedings were initiated and completed as per the directions of AO given in the assessment order under appeal. Thus, the conclusion of the AO regarding incorrect confirmations fails on this account itself Furthermore the appellant has pointed out that the AO tended to make additions due to the fact that he was of the opinion that there was a variation in the regular books of the appellant and the impounded registers. The appellant has clearly shown that except for 2 parties there is no suc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ified the same. This is also noted by him that the sales against these advances were made in subsequent years and the same was accepted as genuine. Considering these facts, we are of the considered opinion that no interference is called for in the order of CIT(A) on this issue also. Ground No. 5 is also rejected. 21. Ground No. 6 is as under: "6. That the learned CIT(A) has erred in law and on facts in deleting the addition of Rs. 50.25.492/- on account of excess stock without appreciating the fact that the A.O. made this addition on account of excess stock found during the course of survey as per physical verification and assessee also failed to bifurcate the stock position relating to both the units." 22. Both the sides agreed that this issue is identical to ground No. 1 in the case of Kapila Krishi Udyog Ltd. and the same can be decided on similar line. In the case of Kapila Krishi Udyog Ltd., this issue was decided by us in favour of the assessee as per Para 6.1 above. Accordingly, in this case also, this ground is decided in favour of the assessee. This ground is also rejected. 23. In the result, the appeal of the Revenue stands dismissed. 24. In the combined result, both ..... X X X X Extracts X X X X X X X X Extracts X X X X
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