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2015 (8) TMI 1095 - ITAT JAIPUR

2015 (8) TMI 1095 - ITAT JAIPUR - TMI - Deciding the case ex parte U/s 144 - Held that:- The assessee’s attitude was totally non-cooperative with the department as evident from the number of dates for hearing given by the Assessing Officer. The assessee had never produced the books of account before the Assessing Officer as claimed by him, which has been confirmed by the ld CIT(A). Both the authorities cannot be held irresponsible when assessee’s conduct shows that he had not produced books of a .....

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of shares and stock option (derivatives) - Held that:- As per Section 43(5) “Speculative transaction” means a transaction in which a contract for the purchase or sale of any commodity, including stocks and shares, is periodically or ultimately settled otherwise than by the actual delivery or transfer of the commodity or scrips.Prima facie it is clear that Section 43(5)(d) is for trading in derivatives not trading of shares. The assessee claimed that the assessee has traded these shares through b .....

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addition - Held that:- As mentioned above, the assessee was non-cooperative with the department even there is no copy of replies filed to show that full name, address and PAN of trade creditors were filed before Assessing Officer. The ld CIT(A) was also wrong to accept the assessee’s claim and held that show cause notice was given by the Assessing Officer itself for trade creditors on 27/12/2010 is against the fact of the case as submitted by the ld DR with reference to paper book submitted by t .....

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it all the required details for his satisfaction to prove the genuineness of the trade creditors as per law. - Decided in favour of assessee for statistical purposes.

Addition of unsecured loan - Held that:- The assessee furnished these details on 27/12/2010 hardly three days had remained with the Assessing Officer to complete the assessment proceedings, therefore, there is no lapse on the part of the Assessing Officer to make the addition U/s 68 of the Act, which was confirmed by th .....

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ssessee for statistical purposes.

Addition of miscellaneous expenses - Held that:- The ld Assessing Officer issued various questionnaire to the appellant, which was not responded. On 27/12/2010, he appeared before the Assessing Officer. Before that he partly filed the information before the Assessing Officer whatever evidence it referred, does not support the assessee’s case that he had filed the required evidences for claim of expenses, therefore, we in the interest of justice, set .....

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-, which has been credited in the P&L account and thereafter net income was ₹ 21,94,196/- for the year under consideration. Therefore, order of the ld CIT(A) deserved to be confirmed on this issue. - Decided against revenue.

Addition to fixed assets - CIT(A) deleted addition - Held that:- The assessee never had furnished any evidence for purchase of assets before the lower authorities. Books of account were also not produced before the Assessing Officer. The ld CIT(A) also decid .....

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ses. - ITA No. 485/JP/2012, ITA No. 561/JP/2012 - Dated:- 11-8-2015 - SHRI R. P. TOLANI AND SHRI T. R. MEENA, JJ. For The Assessee: Shri S. S. Gogra (Adv) and Shri S. K. Gogra (C. A.) For The Revenue : Mrs. Neena Jeph (JCIT) ORDER PER: T. R. MEENA, A. M. These are cross appeals, one by the assessee and another by the revenue arise against the order dated 27/03/2012 passed by the learned C. I. T.(A), Kota for the A. Y. 2008-09. The grounds of assessee s as well as revenue s are as under:- Ground .....

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t and Loss account. Furthermore, the learned CIT(Appeals) dealt with the said addition and after discussions addition was enhanced by ₹ 1,92,538/- and increased to 11,41,070/- by disallowing the part of the loss sustained in share trading by quoting Sec. 73 of the I. T. Act. 3. That the ld CIT(A) grossly erred on law and facts in disallowing the loss in share trading ₹ 11,41,070/- and thereby enhancing the taxable income and initiating penalty proceedings separately. 4. That the lear .....

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omplete miscellaneous expenditure of ₹ 15,12,001/- on unhealthy discussion and the learned CIT(Appeals) also grossly erred in sustaining the same by marking that the assessee did not produce the books of accounts. 7. That the learned CIT(Appeals) grossly erred in initiating penalty proceedings U/s 271(1)(c) by treating the loss disallowed by him as concealed income ₹ 11,41,070/-. Ground of ITA No. 561/JP/2012 On the facts and in the circumstances of the case, the ld CIT(A), Kota has .....

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ary; iii) deleting addition of ₹ 14,83,182/- to be fixed assets despite of the fact that the assessee failed to produce books of account, vouchers etc. in support of investment in fixed assets and could also not explain the sources of this investment. 2. The 1st ground of the assessee s appeal is against deciding the case ex parte U/s 144 of the Income Tax Act, 1961 (hereinafter referred as the Act) by the Assessing Officer and confirmed by the ld CIT(A). The ld Assessing Officer observed .....

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an application was received on 05/12/2008 for want of sine die adjournment wherein the following has been stated: This is to inform you that we are busy in our business. The business of farma is gaining momentum in winter season. We therefore, request you to adjourn the case sine die. The ld Assessing Officer further observed that the assessee again requested vide letter dated 04/6/2009 to furnish audit report alongwith supporting documents in respect of its declared income and case was fixed f .....

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h adjournment was sought at least for 20 days as the consultant was out of station. Thereafter, again notice U/s 142(1) was issued to the assessee on 08/09/2010 fixing the case for hearing on 21/09/2010. On the date of hearing i. E. 21/09/2010 also, none attended nor any adjournment sought. Thereafter on 04/10/2010, assessee furnished copy of audit report alongwith copy of computation of income and copy of I. T. return for A. Y. 2008-09. Thereafter, assessee has again sought adjournment vide app .....

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ing i. E. 18/11/2010, partly submissions were filed by the assessee. Thereafter vide his office letter dated 10/12/2010, the assessee was specifically informed to submit the complete details and information alongwith books of accounts, bills, vouchers and other relevant details/documents which were found at the time of survey, as per Annexure-A. The case was fixed for 16/12/2010. The ld Assessing Officer reproduced the questionnaire issued to the assessee on page 2 to 4 of the assessment order. .....

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foresaid notice till 10.00 am on 27/12/2010 would result in ex parte assessment as well as initiation of penalty proceedings U/s 271(1)(b) of the Act. The extract of letter of Assessing Officer reproduced on page No. 4-5 of the assessment order. On 27/12/2010 at the given time, no one attended nor any reply received from the assessee. However, at 2.30 PM on this date, the assessee submitted more or less same reply as already filed on 18/11/2010 but not produced books of account and other incrimi .....

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he assessee, the assessment was completed U/s 144 of the Act. 3. Being aggrieved by the order of the Assessing Officer, the assessee carried the matter before the ld CIT(A), who had dismissed the assessee s ground by observing that there was a survey U/s 133A of the Act at the business premises of the assessee on 12/10/2007. Various books of account and documents were found during the course of survey were inventorised. During the course of hearing before the Assessing Officer, the assessee did .....

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submitted all the papers, details produced printouts of ledger accounts maintained in computer system to ld Assessing Officer on 27/12/2010 and also before the CIT(A) on 24/1/2012 as evident from the submissions made to them. The copies of the letters dated 27/12/2010 and 24/1/2012 has been annexed, therefore, ld AR argued that framing of the assessment U/s 144 of the Act may please to declared as null and void. All these details required by the Assessing Officer was submitted in detail on 27/12 .....

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correct that he has furnished details before the Assessing Officer on 27/12/2010, it shows that the assessee s intention not to be investigated or scrutinized the case in proper sense of scrutiny. Therefore, this ground may please be dismissed. 6. We have heard the rival contentions of both the parties and perused the material available on the record and gone through the case law. The assessee s attitude was totally non-cooperative with the department as evident from the number of dates for hear .....

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/12/2010, therefore, the assessee s ground of appeal is dismissed. 7. The 2nd and 3rd ground of assessee s appeal is against estimating the G. P. and enhanced by the ld CIT(A) by ₹ 1,92,538/- and increased to 11,41,070/-. The ld Assessing Officer observed that the assessee has claimed trading expenses at ₹ 3,07,858/- and claimed gross loss of ₹ 4,89,312/-. The assessee was asked to furnish the evidences of trading expenses of ₹ 3,07,858/- on various dates but the assessee .....

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. The assessee was also asked to furnish head wise as well as quantity wise and quality wise inventories of purchases and sales but no such inventory was furnished at the ending reply dated 27/12/2010. The ld Assessing Officer asked to furnish two trading accounts from 01/4/2007 to 12/10/2007 (till the date of survey) and from 13/10/2007 to 31/3/2008, separately. But the same was not submitted before the Assessing Officer. He simply stated that during the course of survey proceedings the trial b .....

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irm, which were duly signed by Shri Murli Manohar Gupta, one of the partner of the firm and incriminating documents impounded during the course of survey had been returned back on the same date to the assessee. Therefore, the ld Assessing Officer has not found the assessee s reply convincing but beyond the truth. Accordingly he decided the assessee s sale at ₹ 13.25 crores against the sale declared in trading account at ₹ 13,13,70,013/- and recasted the trading account and gross prof .....

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377; 8,28,80,996/- and ₹ 7,77,80,690/- the opening stock was nil and closing stock was ₹ 2,75,400/-. The assessee had claimed expenses of ₹ 74,521/- related to share business. The assessee had claimed loss of ₹ 48,24,906/- on sale of shares. It was seen by the ld CIT(A) that the transactions were squared up without actual delivery and as per the details filed by assessee itself the loss of squared up transactions (without delivery) comes to ₹ 11,41,070/-. The assess .....

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rading of shares.. The assessee had incurred loss of ₹ 11,41,070/- from trading of shares without any delivery, therefore the same was found by him as speculation loss and accordingly, disallowed U/s 73 of the Act. After reducing loss of share trading, the assessee s profit from medical business came to ₹ 43,35,594/- on a turnover of ₹ 4,96,19,004/- giving G. P. rate of 8.74%. The gross profit rate of 8.74% is considered reasonable in the line of wholesale medical business. Acc .....

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g turnover of medical equipment as well as trading turnover of shares. The ld A. O. has estimated the turnover at ₹ 13.25 crores without any basis. The ld CIT(A) wrongly held that sale transactions were speculative in nature as these transactions were made through electronic mode and when the purchases made and shares come on screen of the broker, it tantamount to purchase and when it is sold then it is a perfect sale. He again referred Section 43(5)(d) that an eligible transaction in resp .....

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t note issued by such broker or sub-broker or others. The said sale and purchase would be treated as trading of shares (business) and not the speculation transaction. These transactions were done through broker, who has issued the transaction note after charging the commission. In speculative transaction, no transaction note is issued by the broker but he only gives the difference of profit/loss in case of his speculative share transaction. The assessee had shown purchase and sale number of shar .....

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d argued that the ld CIT(A) had verified all the particulars of transactions of shares and held that these transactions are speculative in nature. Therefore, order of the ld CIT(A) may please be confirmed. 11. We have heard the rival contentions of both the parties and perused the material available on the record. As per Section 43(5) Speculative transaction means a transaction in which a contract for the purchase or sale of any commodity, including stocks and shares, is periodically or ultimate .....

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aimed that the assessee has traded these shares through broker and through electronics mode, which comes U/s 43(5)(d) of the Act and shall not be deemed to be an speculative transaction, has wrongly interpreted Section 43(5) of the Act. The assessee has not produced any evidence regarding delivery of shares and transactions note, detail of scrap traded during the year under consideration. Therefore, we do not find any reason to intervene in the order of the ld CIT(A). Accordingly, both these gro .....

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e, addresses, PAN, copy of ledger to support its claim but the same were not submitted before him even books of account were also not produced before the Assessing Officer. Therefore, he made addition of ₹ 18,12,459/-. 13. Being aggrieved by the order of the Assessing Officer, the assessee carried the matter before the ld CIT(A), who had allowed the appeal partly by observing that in case of creditors having PAN, the Assessing Officer would have verified the details from their case records .....

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em. Merely on the ground of non furnishing of PAN numbers, the action of ld A. O. by treating the sundry creditors as un-genuine was unjustified. The details of sundry creditors was furnished before the ld Assessing Officer vide submission dated 16/12/2010 (point No. 5(ii). He has also drawn our attention on page NO. 123 of the paper book for this purpose. Further these details for confirmation was required by ld A. O. vide show cause notice dated 27/12/2010 and were filed before the Assessing O .....

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ing PAN number. The ld Assessing Officer is discharging the function of quasi judicial authority which should have justified himself for making proper inquiry in the matter of creditors and about their genuineness. The assessee had submitted details of the trade creditors alongwith balance sheet. Against the appeal made by the revenue, it has been submitted that the nature of the transaction with sundry creditors is of trading activity only which occurs against purchase and sales of any commodit .....

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ious show cause letters mentioned in the assessment order and it is found that the assessee himself admitted that it has submitted its audit report on 04/10/2010 alongwith computation of income, copy of return for the year under consideration, hardly less than two months were remained with Assessing Officer to complete the assessment. As per assessee s submission as page 120 and 121 of the paper book, the assessee submitted creditors ledger copy on 18th November, 2010 before the Assessing Office .....

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vide letter dated 22/12/2010 (paper book page No. 124) at item No. 4 has again asked the assessee to furnish complete name, address, PAN alongwith confirmation and copy of ledger in support of these sundry creditors. Again the ld CIT(A) as well as the assessee were wrong on fact that the Assessing Officer was asked to file confirmation by show cause notice dated 27/12/2010. On 27/12/2010, the assessee submitted a letter before the ACIT, Circle-, Kota and repeated the same reply in point No. 4 re .....

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ce was given by the Assessing Officer itself for trade creditors on 27/12/2010 is against the fact of the case as submitted by the ld DR with reference to paper book submitted by the assessee. We have also perused the above documents, the argument of the ld DR was found correct and the assessee had not submitted complete details of creditors with full address with PAN before the Assessing Officer. Any expenses claimed in the P&L account, burden lies on the assessee, which has not been discha .....

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f M/s Gera Medical agencies. The ld Assessing Officer observed that the assessee had shown unsecured loan of ₹ 3 lacs in the name of M/s Gera Medical agencies. The ld Assessing Officer gave show cause vide letter dated 25/12/2010 to furnish the complete name, address alongwith confirmation of M/s Gera Medical agencies in regard to this unsecured loan. As per letter dated 18/11/2010, the assessee had filed ledger copy of M/s Gera Medical agencies but no confirmation regarding the same was f .....

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g Officer accordingly he dismissed the appeal of assessee. The assessee submitted before us that the assessee had taken loan of ₹ 3 lacs through account payee cheque and interest on which paid by cheque after TDS deducted. The ledger copy of PAN was submitted to the Assessing Officer vide submission dated 27/12/2010 (relevant point No. 5), copy annexed with the paper book at page No. 129, copy of ledger account of M/s Gera Medical agencies and TDS deposit challan for above said period has .....

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ld have enquire this transaction by issuing summon U/s 131 of the Act. The assessee s book of account were computerized which is duly evident from the statement recorded by the departmental authority on 12/10/2007, therefore, same may be deleted. 18. The ld DR vehemently supported the order of the ld CIT(A) and has also drawn our attention on paper book submitted by the assessee that the assessee on 27/12/2010 had submitted that he had received the loan through account payee cheque and deducted .....

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Medical agencies, Kota on which no PAN has been given by it. The assessee furnished these details on 27/12/2010 hardly three days had remained with the Assessing Officer to complete the assessment proceedings, therefore, there is no lapse on the part of the Assessing Officer to make the addition U/s 68 of the Act, which was confirmed by the ld CIT(A). Even evidence filed before us, does not show that the assessee had filed confirmation as well as PAN number before the Assessing Officer. Even the .....

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r. 20. Ground No. 6 of the assessee s appeal is against confirming the addition of miscellaneous expenses at ₹ 15,12,001/- by the ld CIT(A). The ld Assessing Officer observed that during the course of survey proceedings, both the partners had admitted that they voluntarily surrendered additional income of ₹ 41,93,700/- for taxation but while filing the income tax return, the net income had been declared at ₹ 21,94,196/- and claimed various expenses at ₹ 15,12,001/-. Since .....

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ve gone through Assessing Officer s finding and assessee submission. The assessee surrendered as sum of 41,93,700/- represent by cash (Rs. 20,49,000/-) and bogus creditors (Rs. 21,44,700/-). Both of these represent cash/income generated from business. In this case assessee generated undisclosed income of ₹ 41,93,700/- out of which it introduced ₹ 21,44,700/- in books of accounts through bogus cash credits and remaining 20,49,000/- was found as excess cash. The Assessing Officer has r .....

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Assessing Officer had not issued any show cause notice before disallowing these expenses. The salary expenses had been added twice while framing assessment order by the Assessing Officer and CIT(A) is also erroneous to this extent by which such addition is sustained. The ld Assessing Officer disallowed 50% salary expenses out of ₹ 6,58,526/- and again further total expenses are disallowed, which is quite unjustified in the facts and circumstances of the case. The following expenses were c .....

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bmitted to the ld Assessing Officer vide submission dated 16/12/2010. He has drawn our attention on page No. 123 of the paper book. The ld Assessing Officer had considered assessee s reply in his assessment order at page 4-5 for issuing final show cause notice to the assessee. He further argued that the ld Assessing Officer vide show cause notice dated 22/12/2010 has not asked to file any evidence with respect to Misc. expenses claimed by the assessee. He referred particularly page No. 124 to 12 .....

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out copy of ledger account had been submitted to the Assessing Officer and to the CIT(A) vide submission dated 27/12/2010 and dated 24/1/2012 respectively. He further relied on the decision in the case of Brij Bhushan Lal Parduman Kumar Etc. Vs. CIT (1978) 115 ITR 524 (SC) on ex parte assessment and State of Kerala Vs. C. Velukutty (1966) 60 ITR 239 (SC) on best judgment and State of Orissa Vs. Maharaja Shri B. P. Singh Deo (1970) 76 ITR 690 (SC) on best judgment. Thus, he prayed to delete the a .....

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ons of both the parties and perused the material available on the record. The ld Assessing Officer issued various questionnaire to the appellant, which was not responded. On 27/12/2010, he appeared before the Assessing Officer. Before that he partly filed the information before the Assessing Officer whatever evidence it referred, does not support the assessee s case that he had filed the required evidences for claim of expenses, therefore, we in the interest of justice, set aside this issue to t .....

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₹ 3,44,763/- out of salary expenses. Since the assessee had not surrendered any part of the cash found during the course of survey on account of bogus salary. The ld Assessing Officer observed that the assessee had claimed salary payment of ₹ 6,89,526/-, the Assessing Officer asked vide letter dated 10/11/2010 to furnish the detail of salary payment in the prescribed proforma. The assessee made partly compliance on 18/11/2010. Therefore, the Assessing Officer against requested on 10/ .....

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nd address of these persons. However, it is last reply dated 27/12/2010, the assessee filed copy of ledger account of these persons and tried to justify its claim towards salary paid to them. On verification of details, it was found that ₹ 90,000/- salary paid in cash to one Shri Rajesh Soni, who was claimed as purchase manager. An outstanding balance of ₹ 2,19,500/- has also been shown against his name. During the course of survey proceedings, statement of Shri Rajesh Soni was also .....

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eplied vide letter dated 27/12/2010 by the assessee that Shri Rajesh Soni was paid salary of ₹ 90,000/- and remaining amount is advanced to him. The ld Assessing Officer considered the assessee s reply and held that in statement of Shri Rajesh Soni, he admitted only salary of ₹ 20,000/- p. M. on account of expenses but salary has not been decided till date of survey i. E. on 12/10/2007. The other persons also admitted the identical fact. Shri Prem Kumar Prajapat (salesman) admitted s .....

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377; 50,000/-out of total salary on ₹ 3,44,763/-. 27. Being aggrieved by the order of the Assessing Officer, the assessee carried the matter before the ld CIT(A), who had allowed the appeal by observing that the assessee has surrendered Misc. income of ₹ 41,93,700/- related to unaccounted cash found during the course of survey. The payment of bogus salary would result in generation of cash and as the amount of cash surrendered was more than the salary disallowed. The assessee has bee .....

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e P&L account and thereafter net income was ₹ 21,94,196/- for the year under consideration. Therefore, order of the ld CIT(A) deserved to be confirmed on this issue. 29. We have heard the rival contentions of both the parties and perused the material available on the record. The assessee had surrendered cash found during the course of survey at ₹ 20,49,000/- in total surrender of ₹ 41,93,700/-, therefore, we uphold the order of the ld CIT(A). This ground of revenue is dismi .....

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and to that extent his share capital had been credited in personal capital account, remaining additions were made during the year were computer, fire equipments and car Jen Estilo but no bill vouchers and books of account were produced before the Assessing Officer. Therefore, he made addition of ₹ 14,83,182/-. 31. Being aggrieved by the order of the Assessing Officer, the assessee carried by the matter before the ld CIT(A), who had allowed the appeal by observing that the assets were duly .....

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