TMI Blog2012 (8) TMI 1041X X X X Extracts X X X X X X X X Extracts X X X X ..... t of the assessee as appearing in the books of the supplier. Before us the Ld. A.R. has urged that the addition has been made on the basis of assumption and presumption. However, no documentary evidence has been furnished before us in its support. Thus in the absence of any material to the contrary, we do not find any reason to interfere in the order of CIT (A). We thus uphold the order of CIT (A) and dismiss this ground of assessee. - I.T.A. No. 366/AHD/2009. - - - Dated:- 31-8-2012 - SHRI MUKUL KR.SHRAWAT JM SHRI ANIL CHATURVEDI A.M.) For the Appellant : Mr.M.K. Patel For the Respondent : Mr.B.L. Yadav, Sr. D.R. ORDER PER: SHRI ANIL CHATURVEDI, ACCOUNTANT MEMBER. This appeal is filed by the assessee against the order of Ld. CIT (A) Valsad dated 29-9-2008 for the assessment year 2005-06. 2. Ground No.1 and 2 in this appeal are not adjudicated as they are general in nature. 3. Ground No.4 of the appeal is not pressed at the time of hearing due to smallness of the amount and therefore not adjudicated. 4. Ground No.3 relates to the addition of ₹ 1,26,55,804/- made during the course of proceedings u/s.133A. 5. During the year under a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The A.O. has used the words investment in construction whereas the assessee had used the words purchase of materials for construction which according to the assessee is one and the same thing. He further submitted that the A.O. has specified the investment in R.H. Enterprises whereas the assessee had disclosed investments in R.A. Shaikh Paper Mills Pvt. Ltd. It was thus submitted that the assessee cannot invest in a company not owned by him and accordingly the survey team had wrongly inferred the name of the firm. CIT (A) held the retraction made by the assessee to be not valid. He dismissed the appeal of the assessee by holding as under: 8.18. I have perused the submission made by the appellant and the remand report of the A.O. It is seen that the appellant has offered additional income of ₹ 1,06,00,000/- in its return of income and has paid tax on the said sum. The A.O. has not considered the fact that investment in construction and purchase of construction material are more or less the same. The appellant is an illiterate person and has conformed to his words of declaration to the survey team. Regarding investment in a firm, no business person is expected to inv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that no business person is expected to invest in a firm or a concern not owned by him. Further in the declaration made during the survey there is no mention of any loan to third party. There is no independent evidence or finding regarding the declaration/discrepancies found during the survey. However, CIT (A) has upheld the addition only for the reason that the voluntary disclosure made by the assessee was not as per the specific heads of disclosure made during the survey proceedings. The Ld. A.R. relied on the following decisions: (1) Paul Mathews Sons vs. CIT (2003) 263ITR 101 (Ker) (2) Pullangode Rubber Products Co. Ltd. vs. State of Kerala(1973) 91 ITR-18 (SC) (3) CIT vs.Khader Lhan Son (2008) 300 ITR 157 (Mad.) (4) CBDT Instruction dated 10th March, 2003. 9. On the other hand the Ld. D.R. supported the order of the A.O. and further submitted that the retraction made after a period of more than 2 years is an after thought on the part of the assessee and therefore the same needs to be ignored. 10. We have heard the rival submissions and perused the material on record. The factual matrix of the case is that a survey u/s. 133A was carried out on 22-7-2004 and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... terconnected and therefore, disposed off together for the sake of convenience. 14. The assessee is engaged in the business of manufacture of corrugated boxes. The assessee was originally carrying on the same business from Gala No.18, Balaji Industrial Estate Piparia. He commenced its activitiy from the above premises from accounting period relevant to A.Y. 1998-99. During A. Y. 2003-04 the assessee closed down its unit w.e.f. 30- 9-2002 and did not claim any deduction u/s. 80IB till the date of closure. From 1st October, 2002 the assessee started a new unit at Amli Industrial Estate and disclosed profit of ₹ 27,68,653/- and claimed deduction u/s. 80IB of the Act. The A.O. after examination disallowed deduction u/s. 80IB as according to him, to escape the levy of tax the assessee formed a new unit and closed down its old unit at Balaji Industrial Estate as soon as the old unit completed its 5 year of claim of deduction u/s. 80IB. The A.O. was of the view that to enjoy the benefit of deduction @ 100% for another 5 years, suddenly the assessee closed down its old unit which was doing well and shifted it to a new address. The A.O. also observed that though the assessee had con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eal before us. 16. Before us, the Ld. A.R. at the outset submitted that on identical facts, the Hon ble Tribunal in the assessee s own case in ITA No.1496 and 2586/Ahd/2007 (order dated 23-10-2010) for A.Y. 2003-04 and A.Y. 2004- 05 has allowed the assessee s appeal and allowed the deduction u/s. 80IB. He placed on record the copy of the aforesaid order. He thus submitted that since the facts of the case in the present appeal are identical to the facts in A.Y. 2003-04 2004-05, following the decision of ITAT, his appeal be allowed. On the other hand the Ld. D. R. supported the order of A.O. 17. We have heard the rival submissions and perused the material on record. We find that the facts in the case before the co-ordinate Bench in ITA No.1496 2586/Ahd/2007 as stated in para-8 was as under:- 8. The second issue is regarding not granting deduction under section 80IB. The facts of the case are that the assessee had a unit of manufacturing corrugated boxes at Gala No.18, Survey No.205/1/2, Balaji Industrial Estate, Piparia, UT of Dadra Nagar Haveli. It commenced its business from the accounting year relevant to Asst. Year 1998-89 and carried out its manufacturing activit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the activities of the business in the same industrial undertaking. But where at a new location independent of the earlier existing unit, new plant and machinery are purchased and installed, new capital is invested then it would be a case of setting up of a new unit even though for carrying out the same business. The essential difference lies in change in location and installation of new infrastructure in the form of factory building and plant and machinery, whether assessee carries out the same business or different business is not an essential ingredient to hold it is a reconstruction or not. The Revenue authorities were not justified in treating it as a case of reconstruction merely because assessee continued to carry on the same business in the new unit also. On the basis that old unit did not function or it has stopped activities may give rise to an impression that the new unit is the reconstruction of business already in existence. But carrying on the same business in the new unit is not sufficient at its own to hold that the new unit is a reconstruction of business already in existence unless location is the same and there is no installation of new plant and machinery. The ol ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s made (including protective addition of ₹ 1,50,347/- opening balance of creditors). Aggrieved by the addition, the assessee carried the matter before CIT (A). CIT (A) upheld the order of the A.O. for the reason that the assessee had not furnished any evidences to rebut the presumptions of the A.O. The assessee being aggrieved with the order of CIT (A) is now before us. 22. Before us the Ld. A.R. submitted that the addition has been made by the A.O. merely on the basis of cross verification with the vendor s account on the basis of cash transaction only without any material on record. The assessee has not made any cash payment to those parties and the addition has been made on the basis of presumption without any evidence or material on record. He thus urged that the addition made be deleted. 23. On the other hand the Ld. D. R. relied on the order of the A.O. 24. We have heard the rival submissions and perused the material on record. The factual matrix of the case is that the A.O. made addition on the basis of the ledger account of the assessee as appearing in the books of the supplier. Before us the Ld. A.R. has urged that the addition has been made on the basis of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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