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2015 (7) TMI 155 - ITAT AHMEDABAD

2015 (7) TMI 155 - ITAT AHMEDABAD - TMI - Addition u/s 69 A - CIT(A) deleted the addition - Held that:- CIT(A) while deleting the addition has given a finding that during the assessment proceedings, Assessee had filed replies for each of the items of jewellery and cash seized and had also furnished the addresses of the senders of parcel and cash, the original affidavits of the senders were also filed. A.O had not verified any of the evidence either at the assessment stage or the remand stage. Ld .....

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s were held in the capacity of the courier and there was no question of ownership and Section 69A was not applicable. Before us, Revenue has not produced any material on record to controvert the findings of ld. CIT(A) - Decided against revenue.

Addition on account of luxury bus expenses - CIT(A) deleted the addition - Held that:- CIT(A) after considering the submissions and the documents has given a finding that except of ₹ 500 per day which was given to driver for lodging, ther .....

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015 - Shri Shailendra Kr. Yadav, J.M. And Shri Anil Chaturvedi, A.M.,JJ. For the Appellant : Ms. Nidhi Srivastava CIT/DR For the Respondent : Shri R.K. Jindal, A.R. ORDER Per Shri Anil Chaturvedi, A. M. 1. These 2 appeals, of which 1 is filed by the Assessee and the other is filed by the Revenue, are against the order of CIT(A)-I, Ahmedabad dated 28.03.2011for A.Y. 2008-09 and Assessee has also filed C.O. 2. The relevant facts as culled out from the material on record are as under. 3. Assessee i .....

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herein it was admitted by them that the bags containing different parcels of jewellery items of gold, silver etc. belonged to the business concern. Subsequently, Assessee electronically filed its return of income for A.Y. 08-09 on 22.07.2008, declaring total income of ₹ 5,47,850/-. On perusing the return of income, A.O noticed that the jewellery worth ₹ 50,68,573/- and the cash of ₹ 2,13,495/- that were seized during search action under 132 of the Act has not been offered to ta .....

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ellery aggregating to ₹ 52,82,068/- u/s.69A of the Act by considering the Assessee to be its owner. Aggrieved by the order of A.O., Assessee carried the matter before ld. CIT(A) who after considering the submissions of the Assessee, the remand report, reply of the Assessee to the remand report etc decided the issue in favour of the Assessee by holding as under:- 9 I have considered the submissions of the.appellant and perused the records. As the additional evidences furnished in appeal pro .....

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stated that they are the employees 'of the appellant. The police unpacked all the parcels and later on, called the Income tax department. The department took action u/s 132 of the act. Both the employees and partner in the spontaneous statements u/s.131 and 132(4), stated that they are courier and impugned parcels belongs to their, customers. The list of these parties along with the parcels that was also seized and marked as As7 containing 15 pages. During the assessment preceding, the appe .....

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s along-with the details on page no. 48 of Annexure A. 10. The AO has mentioned in the assessment order that the person who claimed that the jewellery belongs to them have not been produced for verification. Therefore, the identity of these persons is not verified. The Id. AO also referred the proceeding u/s 132B(1)(i) and concluded that no extra evidences were produced during the assessment proceeding and therefore, the AO concluded that the appellant is the owner of the seized material and mad .....

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regarding parcels and. produced the list of parcels sender and receiver. The appellant cannot be expected to have the documentary evidence explaining the source of this jewellery items / cash etc. The appellant was courier and explained through evidences that these parcels belongs to its customers and he received these during the course of its business. The appellant is showing courier charges since last more than ten years. The appellant is registered with the service tax department as a couri .....

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ich show that the appellant is the owner of these goods. The courier charges are credited in the books of accounts and the appellant has established that the courier charges ₹ 5300 for the impugned parcels were received and entered in the Jaipur branch cash book on 14/12/2007. Hence, the impugned parcels become part of the books of accounts. 12. After considering all the facts, surrounding circumstances and available record, I hold that the appellant has discharged his burden that the appe .....

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were being transported from Jaipur to Ahmedabad. The nature of business carried on by the appellant is very much akin to the services rendered by the post office. 13. When it is established that these parcels were held in the capacity as a courier, then there is no question of ownership of the appellant oh seized jewellery and cash. Hence section 69A is not applicable in. the appellant's case. Therefore, the addition of ₹ 52,82,068/- is deleted. The above view is also supported in the .....

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ts In deleting the addition made u/s69A amounting to ₹ 52,82,068/-. 2. Ld.CIT(A) erred in law and on facts in restriction the addition on account of luxury bus expenses to ₹ 3,34,375/-as against addition of ₹ 6,68,750/- 5. On the issue of addition u/s. 69A of ₹ 52,82,068/- before us, ld. D.R. supported the order of A.O. On the other hand, ld. A.R. reiterated the submissions made before A.O and ld. CIT(A) and supported the order of ld.CIT(A). 6. We have heard the rival sub .....

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Assessee was courier and had explained through evidences that the parcel belonged to its customers and the parcels were received during the course of business. Ld. CIT(A) has further given a finding that there was no evidence to show that the Assessee was the owner of the goods. Ld. CIT(A) has further noted that Assessee was mere custodian of the articles that were handed over to him and which was being transported from Jaipur to Ahmedabad and the parcels were held in the capacity of the courier .....

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f luxury bus activities which included expenses on account of driver salary, diesel expenses, repair expenses, food expenses etc. He further noticed that 30% of the expenses were by self made vouchers and were not supported by third party evidences. He therefore considered 25% of the expenses of ₹ 26,75,000/- to be unverifiable and accordingly disallowed ₹ 6,68,750/- on account of expenses to be for non business purposes. Aggrieved by the order of A.O., Assessee carried the matter be .....

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xpenses" etc. have also been debited in the accounts which are obviously not allowable. Considering the facts in totality, the 50% of the addition of ₹ 6,68,750/-is sustained and balance 50% addition is deleted. 8. Aggrieved by the aforesaid order of ld. CIT(A), Revenue is now in appeal before us. 9. Before us, ld. D.R. supported the order of A.O. On the other hand, ld. A.R. reiterated the submissions made before A.O and ld. CIT(A) and supported the order of ld. CIT(A). 10. We have he .....

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controvert the findings of ld. CIT(A). We therefore find no reason to interfere with the order of ld. CIT(A) and thus this ground of Revenue is dismissed. 11. In the result, the appeal of Revenue is dismissed. C.O No. 183/AHD/2011 for A.Y. 2008-09 12. The grounds raised by the C.O reads as under:- 1.The Hon'ble CIT(A) has erred in not adjudicating on the first ground of the appellant raised before the Ld. CIT (A). 1.1 In the facts & circumstances of the case the Id, A.O. has erred in pa .....

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jewellery of ₹ 50,68,573/- and V.P.P cash ₹ 2,13,495/- are stock of the appellant hence seizure made by the department is illegal and contrary to law. The AO'S order is illegal hence it be held now and order passed be cancelled. 2.The Hon'ble CIT(A) has erred in confirming the levy of interest under s. 234A , 234B/234C of the Act. The levy of interest be held as incorrect and same be deleted now. 3. The order passed by the Hon'ble CIT(A) is bad in law, contrary to legal .....

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in law and on facts in confirming the addition of ₹ 1,10,000 out of various expenses treated as incurred for non business purposes. 2. The Ld. CIT(Appeal) has erred in law and on facts in confirming ₹ 3,34,375/- being 50% of the addition of disallowance of luxury bus expenses ₹ 6,68,750/-out of total expenses of ₹ 89,19,141/-. Ld. CIT. (Appeal) further erred in law and on fact in ignoring and arbitrarily brushing aside the evidence of the Appellant without any cogent and .....

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