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TMI Blog2016 (5) TMI 1172X X X X Extracts X X X X X X X X Extracts X X X X ..... he assesee that a copy of the written submission dated 22-07-2009 filed before the CIT(A) is available at page Nos.1 to 21 of the paper book and in particular, our attention was drawn to page no.8 of the paper book and it was pointed out that as per the details given in para-21 of the written submission, the figure of sale as per books is tallying with the details, as per monthly returns in form no.3, but by mistake, in the annual return in form no.4, a higher amount of sale was reported and the addition was made by the AO on the basis of this figure of sale in the annual return by ignoring the figures of sale in the monthly return of VAT. It was further submitted that on page no.102 of the paper book is the monthly abstract of sales turnover as per monthly sales tax return for the financial year ending 31-03-2005 and as per the same, the total CST turnover for this year is Rs. 10,28,93,012 which is tallying with figure of sales as per assessee's books of accounts. He has also drawn our attention to page no.151 to 154 of the paper book on which there is copy of annual return of turnover filed with CST authority for the year ending 31-03-2005 and he pointed out that as per the same, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 004-05 was filed on 01-06-2005. Hence, it cannot be claimed that there is a mistake in the annual return only on this basis alone that figure of sale reported in monthly return is less, as compared to figure of turnover reported in annual return because the annual returns are filed after proper verification and generally, we find that there may be mistake in the monthly return and not in the annual return. We do not want to say that there cannot be any mistake in the annual return but then the assessee has to establish that there is mistake in the annual return by bringing cogent material on record and simply saying that since the annual return is not tallying with monthly return, there is mistake in Annual return is not sufficient because mistake may be in monthly returns also. Mere comparison with the monthly return is not sufficient, particularly when there is no rectification application filed before the sales tax authority, asking for rectification in annual return and asking for refund of excess sales tax paid on the basis of mistake in the annual return. Hence, we find that no merit in this contention that there is mistake in the annual return and therefore, this ground of a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... learned AR of the assessee that copy of the confirmatory letter dated 09-11-2012 given by three creditors in respect of Rs. 2.98 lakhs, Rs. 3.60 lakhs and Rs. 5.30 lakhs are available on pages 338 to 340 of the paper book. He submitted that it should be admitted as additional evidence and the addition made by the AO and confirmed by the CIT(A) should be deleted. 8. The learned DR of the revenue submitted that the additional evidence should not be admitted and he supported the orders of the authorities below. 9. We have considered the rival submissions. We find that on page no.16 of the order, it is noted by the learned CIT(A) that the AO had asked the assessee to furnish the names and detailed address of the sundry creditors along with the confirmation and in reply, the assessee filed a letter stating that there was a balance of Rs. 42,36,272/- which was cleared subsequently out of amounts received from sundry debtors, but details called for were not furnished. When the AO asked again for filing the details, the assessee filed names and address without any confirmation letters and account extracts. The AO addressed letters to these creditors to appear along with various details a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ld not establish these credits. Therefore, the aforesaid addition is confirmed. 12. Before us also, the assessee could not establish these credits by bringing the confirmation and any documents in support of identify of the creditors and their credit worthiness. Therefore, we find no reason to interfere with the order of the ld.CIT(A) on this issue. Accordingly, ground no.5 is also rejected. 13. Ground no.6 & 7 are as under; "6. That the Respondent Officer erred in making an addition on account of the alleged unexplained cash deposit in to the overdraft account no.1147 with the Canara Bank with complete disregard to the facts of the case and as such the impugned addition so made is liable to set aside. 7. That the ld.CIT(A) erred in directing to make an additions to the extent of Rs. 37,20,061/- on account of the alleged unexplained cash deposits in to the overdraft account no.1147 with the Canara Bank with complete disregard to the facts of the case and as such the impugned addition so made is liable to set aside". It was submitted by the learned AR of the assessee that the learned CIT(A) had deleted the part of the amount of addition, whereas he should have deleted the e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ordingly, ground no.6 & 7 are allowed for statistical purposes. 15.1. Ground no.8 is general in nature and ground no.9 is consequential. 16. In the result, the appeal of the assessee is partly allowed for statistical purposes. 17. Now we take up the appeal of the revenue for assessment year 2005-06 in ITA No.382(B)/2012. 17.1 The grounds raised by the revenue are as under; "1. Whether the CIT(A) is right in deleting the addition made on account of unexplained cash credits on a presumption that such cash credits have resulted from the cash flow generated on account of the trading activity of the assessee & hence the addition should be restricted to the peak of the same? Whereas the fact is that no nexus could be established between the cash deposits and the trading activity of the assessee and the so called trading activity is not accounted in the books of account at all. 2. Whether the CIT(A) is right in deleting the addition made on account of excess closing stock worked out after giving due credence to the assets and liabilities and taking into consideration the trading results based on a presumption that the addition on account of gross profit and closing stock differen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he file of the AO for his decision with some directions but the CIT(A) cannot set aside and restore the matter back to the file of the AO. He has to decide the issue himself and if required, he can obtain remand report from the AO. It is also seen that he has held that the opening stock should be considered as available for sale for deposit in bank account and he directed the AO to keep this aspect in consideration while working out peak credit by giving the credit for the closing stock of the earlier year but while deciding the issue in respect of opening stock on the basis of closing stock at the end of the last year, the AO has held in his assessment order that the closing stock of the present year is inclusive of the opening stock and he has made addition to the extent of the balance amount only being the excess of closing stock over opening stock. If the opening stock was part of the closing stock of the present year then how the same can be sold and sale proceeds can be deposited in the bank account. Therefore, we feel it proper that this matter should go back to the file of ld.CIT(A) for fresh decision. Learned CIT(A) should decide the issue himself instead of restoring the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion and credit worthiness of the parties could not be verified. These amounts are in respect of five creditors who have filed reply in tapal on 17-12-2008 before the AO. This addition was deleted by the ld. CIT(A) by observing that these creditors have confirmed the transaction and there is no dispute that they are in existence and they did confirm having agricultural lands. Under these facts, it was held by the ld. CIT(A) that the primary onus of assessee gets discharged. The assessee has submitted English translation of the records of RTC certificate issued by the revenue authorities in respect of land held by creditors which are in Kannada and are available on pages 215 to 247 of the paper book. The identity of the creditors is not doubted by the AO also and the addition was made by him on this basis alone that the genuineness of the transaction and credit worthiness of the creditors could not be established. This is not the case of the AO that coffee was not purchased by the assessee from the parties. The ledger account of first party Shri M.L.Raju is available at page no.205 of paper book which shows opening balance of Rs. 2,17,272/- and fresh purchase of coffee from this part ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3. The ld.CIT(A) erred in upholding the impugned addition of Rs. 82,69,825/- made by the AO out of mere suspicion and surmise and with complete disregard to the facts and circumstances of the case. 4. The ld.CIT(A) erred in not directing the deduction of stock in trade addition of Rs. 51,70,000/- as at 31-03-20- 05 while computing the current year's income and as such the impugned order is liable to set aside. 5. That the impugned levy of interest u/s 234B and 234C are liable to set aside insofar as the assessee's is not liable there for. Relief claimed In view of the grounds herein urged and of those which may be urged at the time of hearing, the assessee prays that Hon'ble ITAT may please; 1. set aside the impugned addition of Rs. 82,69,825/- made by the respondent officer. 2. direct deduction of the stock of Rs. 51,70,000/- considered by the AO for AY: 2005-06; and 3. to set aside the impugned levy of interest u/s 234B and 234C of the IT Act". 24. The assessee has also raised additional grounds which are as under; "1. The impugned order of assessment made on 21-12-2011 by the ld. AO u/s 143(3) r.w.s. 254 is null and void and is liable to be annulled in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fee taken together comes to 4.20 lacs Kgs. But as per monthly summary but as per copy of URD purchase Register for the month of April, 2005 available on pages 127 to 134 of the paper book, the total purchase during the month of April 2005 is only 313450 Kgs. Then how this purchase register is correct and moreover it was also pointed out that the quality of coffee is not mentioned in the purchase register. The Bench also wanted to know whether any details of monthly summary available on pages 171 to 171A of the paper book is available to find out from where the separate quantity of purchase of both type of coffee was worked out. In reply, it was submitted by the ld.AR of the assessee that such working is not available and although, the quality of coffee is not mentioned in the purchase register, but the difference in rates of the purchase price of both coffee is indicative of the type of coffee purchased. 27. The ld. DR of the revenue supported the order of the A.O. 28. We have considered the rival submissions. We find that this issue was decided by the ld.CIT(A) at para-4.10 of his order and the same is reproduced below for ready reference; "4.10 I have considered the rival con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ort of his argument that the purchase of Arabica coffee was reported as Robusta coffee. 29. Before us also, such evidence could not be produced by the ld, AR of the assesssee. In fact, as discussed above, the purchase quantity, as per purchase register having the details of price is less than the purchase shown by the assessee in monthly summary available on page no.171 and 171A of the paper book for the month of April 2005. Hence, we find no merit in this ground of appeal of the assessee and the same is hereby rejected. Now, we decide the additional grounds. It was submitted by the ld.AR of the assessee that the original Tribunal order setting aside the matter to the file of the AO was passed on 26-06-2009 and the consequential assessment order is dated 21-12-2011 passed by the AO u/s 143(3) rws 254 of the IT Act, 1961 and therefore, the assessment order is time barred. As against this, it was submitted by the ld. DR of the revenue that after passing of the Tribunal order on 26-06-2009 which is available on pages 95 to 303 of the paper book, the revenue moved a M.P. before the Tribunal and the Tribunal passed order in M.P.No.96(B)/2009 on dated 06-08-2010, copy of which is avail ..... X X X X Extracts X X X X X X X X Extracts X X X X
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