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TMI Blog2019 (9) TMI 655X X X X Extracts X X X X X X X X Extracts X X X X ..... 3)/153A of the Act is without jurisdiction in view of the fact that before transferring of jurisdiction from one assessing officer to another assessing officer no opportunity of being heard given to the appellant. Therefore the assessment order is liable to be quashed. 4. That, the appellant craves to alter, amend or add any other ground that may be considered necessary in the course of appeal proceeding. 2. Brief facts of the case are that the assessee is a wholesale dealer of seasonal stationary items of Rakhi, Greetings, Fire works, Holi Colour etc. and filed his return of income in the capacity of an individual. On 07.11.2013 he was travelling from Bhubaneswar to Delhi by Indigo Flight and on reaching New Delhi Air port, he was intercepted by AIU Team New Delhi at Terminal ID, IGI Airport. During the course of search proceedings u/s.132 of the Act, it was found that he was carrying in person cash worth Rs. 20 lakhs out of which Rs. 19 lakhs was seized. The case was first centralized with erstwhile Circle-1(2), Bhubaneswar and again centralized with Central Circle-2, Bhubaneswar by the jurisdiction order of the CIT-1 & 2, Bhubaneswar vide no. CIT/BBSR/Jurisdiction/127/03/201 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... coping in respect of purchase and sales made by him and confirmed the gross profit @9.06% on the sales of Rs. 31,66,463/-, which was remained unexplained before the AO as suppression of both sales and purchase. 5. Further feeling aggrieved, the Revenue is now in appeal before the Income Tax Appellate Tribunal. 6. During the course of hearing, ld. AR did not argue on the legal grounds raised in ground No.1 & 3. He argued only on the ground No.2. He submitted that Rs. 20 lakhs cash was seized at Terminal 1D, IGI Airport, which was confirmed by the Tribunal in ITA No.93/CTK/2013, for the assessment year 2014-2015 vide order dated 26.04.2018. In the sum of Rs. 20 lakhs assessee's unaccounted GP of Rs. 2,86,881/- was included, therefore, double taxation should not be made on the same amount which has been taxed in the subsequent year. 7. On the other hand, ld. DR relied on the order of lower authorities and submitted that tax should be charged in the hands of the assessee which falls in the same assessment year and also submitted that the tax should be charged in the same assessment year in which income has been earned. Therefore, the contention of the assessee is wrong. He has also ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .35 PM on 7.11.2013. He observed that it could be understandable if the assessee retracted his first statement at the time of deposition of his second statement. There was also seven hours gap between the two statements. The assessee in his admission to the disclosure of cash also stated its source as his unaccounted income of the proprietorship firm M/s. Manoj Season Centre which has originated out of unaccounted sales for the Financial Year 2013-14. This shows that while making the statement before the Authorities, the assessee has applied his mind and not only made the disclosure of cash but also explained its source. Therefore, the explanation during the present proceedings that he was not in proper state of mind during the course of search cannot be accepted as such. Rather the present explanation is an afterthought resorted by the assessee to evade tax. The Assessing Officer further observed that the second contention of the assessee in explaining the cash that he was sufficient availability of cash in his Cash Book from which he had drawn Rs. 20.15Lakhs on 06.11.2013. It was interesting to note that the assessee had absolutely forgot to intimate this vital information to sea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed in the bank by the assessee, it is found that from 03.04.2013 to 24.07.2013, assessee has not deposited any cash in his bank account. The probability of the assessee utilizing this cash towards major purchase of any stock in trade during this three months is ruled out as from the ledger account of the 10 top suppliers of the assessee, it is noted that most of the payments towards the purchase has been made after July-2013. In otherwords the cash of Rs. 33,75,000/- was lying with the assessee during these three months without being utilized towards any purpose. From 25.07.2013 assessee started depositing cash in his bank account on a regular basis. Further, the Assessing Officer observed that the assessee he was carrying cash for purchasing the items of calendars, diaries, greeting cards etc. and outstanding payment of M/s. Calendar Corporation, Siddhipura, Delhi-06. During the course of the present proceedings, notice u/s. 133(6) was issued to M/s. Calendar Corporation at the address given by the assessee in his statement. The said notice was returned by the Postal Authority with a comment "Incomplete address". When confronted with this, the assessee vide written submissions sta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e cash book of the assessee and therefore, the retraction from the statement admitting cash seized as unaccounted cash is not justified. The CIT(A) therefore, confirmed the action of the Assessing Officer. 7. Before us, ld A.R. argued that no addition can be made merely on the basis of admission of undisclosed income by the assessee in a statement made u/s.132(4) of the Act unless the same is corroborated with materials found during the course of search. For this, relied on the decision of Amritsar Bench of the Tribunal in the case of ACTI vs. Janak Raj Chauhan (2006) 102 TTJ 316, where, it was held that admission made at the time of search action is an important piece of evidence but the same is not conclusive. It is open to the assessee who made the admission to show that it is incorrect and the same was made under a mistaken belief of law or facts. Further, the Jodhpur Bench of the Tribunal in Maheshwari Industries v. Asstt. CIT [2005] 148 Taxman 74 (Jodh) (Mag.) has held that additions should be considered on merits rather than on the basis of the fact that the amount was surrendered by the assessee. It was his argument that the assessee before the Assessing Officer filed th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and sales vouchers and expense vouchers. In the circumstances, we do not find any error in the conclusion of the lower authorities to the effect that the cash book produced by the assessee is unreliable. In absence of any reliable materials produced by the assessee to show the source of cash of Rs. 20 lakhs found in the possession of the assessee on 7.11.2013, we do not find any good reason to interfere with the orders of lower authorities and dismiss this ground of appeal of the assessee." 9. We also noted from the order of lower authorities that this difference of Rs. 31,66,463/- has been treated as suppression of sales by the which has rightly been allowed partly by the CIT(A). The observations of the CIT(A) in this regard at page 14 are as under :- "Coming to the claim of the Ld. A.R regarding peak credit and telescoping theory, though it has its judicial recognition in Ananthram Veerasinghiah & Co. Vs. CIT (1980) 123 ITR 457 (SC), the appellant has never came up with the proposal either before the A.G in course of assessment proceedings or in course of appellate proceedings. It is a submission of the Ld. A.R for sake of argument. Regarding the alternative submission of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pugned assessment year, therefore, taxability on the same amount cannot be carried forwarded in the subsequent year. The income has been defined as per Section 2(24) of the Act. For the completeness of our order, we would like to reproduce the provisions of Sections 4 & 5 of the Act, 1961 :- "Charge of income-tax. 4. (1) Where any Central Act enacts that income-tax shall be charged for any assessment year at any rate or rates, income-tax at that rate or those rates shall be charged for that year in accordance with, and [subject to the provisions (including provisions for the levy of additional income-tax) of, this Act] in respect of the total income of the previous year [***] of every person: Provided that where by virtue of any provision of this Act income-tax is to be charged in respect of the income of a period other than the previous year, income-tax shall be charged accordingly. (2) In respect of income chargeable under sub-section (1), income-tax shall be deducted at the source or paid in advance, where it is so deductible or payable under any provision of this Act. Scope of total income. 5. (1) Subject to the provisions of this Act, the total income of any pr ..... X X X X Extracts X X X X X X X X Extracts X X X X
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