TMI Blog2023 (5) TMI 1210X X X X Extracts X X X X X X X X Extracts X X X X ..... full details of the share of the assessee and since the learned CIT (A) out of the above has allowed certain expenses towards commission, therefore, in absence of any contrary material brought to our notice, the order of the learned CIT (A) is upheld and the grounds raised by the assessee on this issue are dismissed. CIT (A) power in directing AO to enhance the income - HELD THAT:- As held in various decisions that the power of the CIT (A) is co-terminus with that of the power of the AO and the CIT (A) can do which the Assessing Officer has failed to do. Since CIT (A) has already deleted an amount and another amount subject to certain verification, therefore, by directing the AO to rectify the mistake amounting to Rs.31.00 lakhs does not amount to any enhancement of income. Therefore, he is not required to issue any notice for enhancement of income. In any case, the learned CIT (A) has given a simple direction to rectify the mistake which the AO has committed by not adding the amount which has attained finality . Therefore, the order of the CIT (A) on this issue is justified. The grounds raised by the assessee on this issue are accordingly dismissed. - ITA No. 412/Hyd/2021 - ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... issue by the Assessing Officer and decide the issue in accordance with law. Further, we make it clear that the agreement produced by the assessee is self-serving document and it cannot be acted upon as the assessee categorically stated before the Assessing Officer that there was no agreement. Accordingly, this issue is remitted back to Assessing Officer for fresh consideration. 5. So far as the addition of Rs.38,00,000/- is concerned the Tribunal had also restored the issue to the file of the Assessing Officer by observing as under: 11. The contention of the assessee is that the amount of Rs.38 lakhs is incurred by two other parties namely Sri Venkateswara Films Rs. 5 lakhs and SS Communications Rs. 33 lakhs which was paid to Prasad Laboratories on behalf of assessee and according to the assessee the same to be allowed. If these payments are not claimed as expenditure in the hands of these two parties, then it is natural to allow the claim of the assessee. Being so, it is appropriate to examine the issue in detail accordingly. 6. It may be pertinent to mention here that the CIT (A) in the first round of litigation has sustained the addition of Rs.31.00 lakhs and the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fficer accordingly determined the total income of the assessee at Rs.8,25,80,545/-. 8. In appeal, the learned CIT (A) partly allowed the appeal filed by the assessee. So far as the addition of Rs.3,02,75,200/- is concerned, he sustained an amount of Rs.1,97,12,023/- by observing as under: 6.28 I have carefully considered the contention of the assessee and examined the same in the light of the fact of the case as emanating from the documentary evidence placed on record. At the outset, it may be noted that the assessee is once again harping on the MOU wherein it is stated that the agreement between the assessee and the distributor i.e., M/s. Asha Film Distributors is that of an outright sale and, therefore, the entire profits would accrue to the distributor after transferring the distribution and theatrical rights for fixed consideration. As such, the assessee has placed heavy reliance upon the MOU Which has been rendered otiose by the Hon'ble ITAT vide order dated 10.01.2014 (supra) on account of the fact that the same is self-serving document in nature inasmuch as it was not produced before the AO during the course of first round of assessment proceedings. 6.29 At ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... received Rs.1,40,00,000/- only from M/s. Asha Film Distributors towards the sale of distribution rights of Telugu feature film Pokiri for Ceded Area. 6.33 Be that as it may, as per the impounded document, being the Fax message received by the assessee from M/s. Asha Film Distributors, it is clearly stated that as on 28.07.2006 i.e., 91 days collections, the total share of the assessee is Rs.4,42,75,200/-, but before claiming commission and other expenses. Further, as per the said impounded document which is captioned REPORT TITLED DCR , as on 27.07.2006 i.e., 91 run days, in respect of Ceded Area, the total gross collection came to Rs.6,94,22,079/-. Further, the total net collections is worked out to Rs.5,92,38,541/-, and against which the assessee's total share amount is quantified at Rs. 4,42,75,200/-. 6.34 Also, it is pertinent to note that, out of Rs.4,42,75,200/-, a sum of Rs. 88,55,040/-, being 20% of the said amount has been reduced stating that 20% commission. Similarly, a sum of Rs.17,70,437/- has been reduced towards share of Kurnool area and Tirupati area. Accordingly, the net total share of the assessee has been recorded as Rs.3,37,12,723/-, At the jun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... - by allowing an opportunity to the appellant Accordingly, the assessee was given an opportunity vide this Office letter dt: 26-11-2010 to offer his submissions in this regard. The assessee vide his reply dated 07-02-2011 has reiterated the earlier stand that the amount of Rs.31,00, 000/- was part and parcel of the undisclosed sum of Rs.225 lakhs and hence the same should be added back again. The facts of the case are verified and concluded on the following lines. The undisclosed income admitted by the assessee of Rs.225 lakhs during post survey proceedings was stated by the assessee as receipts received but not recorded in the books. During the course of assessment proceedings, the books of account were verified and found that an excess amount of Rs.31,00,000/- over and above Rs.225 lakhs was also received by the assessee and addition Was made treating this mount as unaccounted. The assessee's contention that the said amount of Rs.31 lakhs was only a noting but not actual receipt finds no strength as he collections received were noted as cash and cheque receipts. Therefore, as the assessee could not come up with any further evidence to support his claim except reiterating ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e u/s 133(6) to Mr. A. Mallikarjun who was the witness of the Assessing Officer. Mr. Mallikarjun in his reply has categorically stated that he had purchased the distribution rights on outright basis for Rs.1,40,00,000/- only. Therefore, in the absence of any contrary material, the addition made by the Assessing Officer and sustained by the CIT (A) is not justified. So far as the document impounded during the course of survey is concerned, the learned Counsel for the assessee referred to page 6 of the Paper Book and submitted that the same is a dumb document since neither it contains the signature of the assessee nor it is in the handwriting of the assessee. It was simply a paper found from the office premises which was received on fax. 14. Referring to the decision of the Hon'ble Supreme Court in the case of Kathiroor Service Co-operative Bank Ltd. v. CIT [2014] 360 ITR 243, he submitted that the Hon'ble Supreme Court in the said decision has held that although the power can be exercised in the course of inquiry by calling for information even where no proceedings are pending, however, the same has to be exercised only with the permission of the Director or the Commissio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assessee which was received in his Fax number only. When the said document gives the time, date, name of the Centre with whom the assessee is doing business giving full details of the share of the assessee, it cannot be said that it is a dumb document. Although Sri Mallikarjun has stated that he has given only Rs.1,40,00,000/-, however, he did not produce any books of account to support his claim nor he has given any explanation as to how and why the fax was sent from his office to the assessee. Since the impounded document clearly gives full details of the share of the assessee at Rs.4,42,75,200/- and since the learned CIT (A) out of the above has allowed certain expenses towards commission, therefore, in absence of any contrary material brought to our notice, the order of the learned CIT (A) is upheld and the grounds raised by the assessee on this issue are dismissed. 17. Grounds of appeal No. 4 5 relate to the order of the learned CIT (A) in directing the Assessing Officer to enhance the income by Rs.31,00,000/-. 18. After hearing both sides, we find the above amount of Rs.31.00 lakhs was sustained as unaccounted income and the assessee has not challenged the above addi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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