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TMI Blog2025 (1) TMI 1558X X X X Extracts X X X X X X X X Extracts X X X X ..... 8-19 07.08.2024 30.09.2021 06. ITA No. 517 2019-20 07.08.2024 30.09.2021 2. At the outset, it would be pertinent to mention herein that these group of appeals are being fixed for hearing on various occasions i.e., on 28.10.2024, 09.12.2024, 23.12.2024, 08.01.2025, 10.01.2025 and finally on 13.01.2025. During the aforesaid date of hearing, the assessee was represented by Shri Subhash Agrawal, Advocate on 28.10.2024, but the case was adjourned for certain reasons like to obtain a report from the Ld. AO and to production of assessment records etc. On next date of hearing dated 09.12.2024, Shri Mahesh Jain, employee of the company put up an appearance to adjourn the matter with written request, therefore, the case was adjourned to 23.12.2024. Again, on 23.12.2024 when the matter was fixed up for, no-one has put up an appearance on behalf of the assessee, however, certain connected issues are fixed for hearing on 13.01.2025, therefore, the matter are adjourned on 08.01.2025. When the matter was called for hearing on 08.01.2025, it is observed that no-one on behalf of the assessee has available to represent the case, neither any application for adjournment has been filed before u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er has been going on since long and had been adjourned for one or the other reason, therefore, we are not inclined to accept the assessee's request for adjournment of the matter for a period of 1 or 2 months and, thus, fix the same for hearing on 13.01.2025. It is clarified that no further adjournment will be permitted and the matter in absence of representation of either of the parties would be proceeded with and disposed of. The case is adjourned to 13.01.2025." 3. On the next hearing dated 13.01.2025, again there was no representation on behalf of the assessee, neither any application of adjournment was placed on record, therefore, the matter was taken up for hearing and adjudication. After hearing the Ld. CIT-DR and on perusal of the material available on record the cases are taken up for adjudication. 4. On perusal of the case records, it is noticed that the appeal filed by the assessee is barred by limitation on account of delay in filing of appeal by 35 days has pointed out by the registry. In this regard, an application for condonation of delay in furnished by the assessee, the same is culled out as under: 5. Considering the facts and reasons for delay as explained i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... G.P. of Rs.74,64,891/- in the return filed u/s 153A. 4. For that, on the facts and in the circumstances of the case, the Ld. CIT(A) grossly erred in confirming the disallowance of Rs.6,34,30/- made by the A.O. on account of alleged commission @ I% of the alleged undisclosed sale. 5. For that the Ld. ClT(A) ought to have directed the A.O. to compute proper interest u/s 234A, 234B and 234C as per law. 6. The appellant craves leave to add further grounds of appeal or alter the grounds at the Additional grounds of appeal in ITA No. 513/RPR/2024 9. At the very beginning of the hearing, Ld. CIT-DR submitted that the issues in the aforesaid appeals of the assessee for AY 2014-15, 2015-16, 2016-17, 2017-18, 2018-19 & 2019-20 are common and identical. A chart showing the nature of additions along with quantum in the respective assessment years has been placed before us for the sake of reference and clarity, the same is culled out as under: 10. The brief facts of the case as reiterated, are that the assessee is a Pvt. Ltd. company engaged in the business of Iron and Steel. A Search & Seizure Action u/s 132 was conducted on the business and residential premises of Sarthak Group of ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the question of law where it is necessary to consider that question to correctly assess the tax liability of an assessee. Whereas in present case the issue raised does not constitute any question of law, which is necessary to assess the tax liability of the assessee. Ld. Sr. DR placed her reliance on the judgment in the case of Checkmate Services (P.) Ltd. Vs ADIT, CPC reported in (2024) 164 taxmann.com 498 (Ahd. Trib.), dated 16.07.2024, while dealing with such an objection by the department, the tribunal has held as under: 16. The Hon'ble Supreme Court held in that case the Tribunal has jurisdiction to examine a question of law which arises from facts as found by the authorities below. The Court further held that the question of law may be allowed to be raised when it is necessary to consider that question in order to correctly assess the tax liability of an assessee. Thus, it is clear from this decision that any question of law may be allowed to be raised only in order to correctly assess the tax liability of the assessee. So far as the correct assessment of the tax liability in this case is concerned, the issue involved in this case is already settled by the decision of H ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t in a given case, it cannot be presumed on the mere say of the assessee that no application of mind was there while granting the approval. The Hon'ble High Court had further observed that the language used in the letter granting the approval revealed the subjective satisfaction that was arrived at based on the documents that were produced before the Jt. CIT. It was further observed, that on a perusal of the language of the approval letter, it cannot be presumed that there was no application of mind as the approval need not be a detailed assessment order. The Hon'ble High Court after pressing into service Section 114 of the Evidence Act had observed that in case where the official act had been done in accordance with official procedure, then it would lead to presumption that due diligence was followed. 7.6 As the facts involved in the present case remains the same as were there before the Hon'ble High Court in the case of Hitesh Golecha Vs. ACIT, Central Circle-1, Raipur (supra), wherein the Hon'ble High Court had looked into the similarly worded approval granted by the Jt. CIT, Range-Central, Raipur and had rejected the assessee's claim that the said approval ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssee, incriminating documents/ loose papers / data found from laptop, hard disk and other digital evidence found and seized from the various premises, statement recorded during the search and seizure proceedings and post search investigation, the GP rate @5% on unaccounted sale and purchase was offered by the assessee company, but not acceptable. Therefore, the rate of GP is taken at 8% on the total unaccounted sale of the assessee and the same is treated as unaccounted income of the assessee for respective assessment years, as under: AY Unaccounted Sales (A) GP on Sale (B) Total Unaccounted profit (A* B) Declaration of the assessee Addition 2011-12 72,841,269 8% 5,827,302 2,183,330 3,643,972 2012-13 16,920,113 8% 1,353,609 507,160 846,449 2013-14 799,298,672 8% 63,943,894 33,268,687 30,675,207 2014-15 149,297,831 8% 11,943,826 7,464,891 4,478,935 2015-16 1,707,205 8% 136,576 85,360 51,216 2016-17 443,080 8% 35,446 - 35,446 2017-18 3,506,208 8% 280,497 - 280,497 2018-19 656,132 8% 52,491 - 52,491 TOTAL 1,044,670,510 83,573,641 43,509,428 40,064,213 16.2 Aggrieved with the aforesaid additions, assessee preferred an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... th on the merits of the issue, to rest the prolonged litigations pending before him. As the conduct of assessee before us is also observed to be evasive and of a non-compliant, as the group matters of the assessee were fixed for hearing on various occasion, but the assessee remains non-responsive or has represented only for seeking of adjournments for one or another reasons, which are not found to be reasonable. We, thus, in terms of aforesaid observations are of the considered opinion that there was no infirmity in the order of Ld. CIT(A) in confirming the addition made by the Ld. AO in absence of any plausible explanation by the assessee to dislodge the same. We, thus, uphold the order of Ld. CIT(A), with no interference on our part. In result, ground no. 3 of the assessee stands dismissed. 17. Ground No. 4: Regarding disallowance of Rs. 63,430/- by Ld. AO on account of commission @ 1% on undisclosed sale, confirmed by the Ld. CIT(A). 17.1 On this issue, the facts are culled out from the order of Ld. CIT(A), which reads as under: 6.Ground No. 2 :- During the search & seizure the data backup of Laptop it is found that M/s Sarthak Ispat Pvt. Ltd has provided sales bills during ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t all the above transaction are not related to the regular books of accounts. All the above transactions are duly part of the accounted sales as per the audited books of accounts and the respective taxation on the same had been duly paid with, sir, addition of the same of the same again will lead to double taxation and will not prevail justice for the assessee. The contention of the assessee has been considered however it is not acceptable. As per incriminating document it reveals that assessee has involved in providing bogus sale bills in lieu of commission. Further assessee has returned the same amount in cash to above mentioned parties. Therefore, in view of the incriminating documents and discussion above 1% of total transaction against the bogus sales of Rs. 83,43,003/- and commission income is addition of Rs. 63,430/- is made to the total income of the assessee for A.Y. 2014-15. 17.2 Aggrieved with the aforesaid addition, assessee preferred an appeal before the Ld. CIT(A), however, assessee remained absent before the Ld. CIT(A) on various occasions, when the matter was fixed for hearing. Ld. CIT(A). Thereafter, Ld. CIT(A) had deliberated on the issue in absence of any repr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ptable for the reason that the assessee is involved in providing of Bogus Sales bills in lieu of commission, therefore, in light of incriminating documents commission @ 1 % was added to the income of the assessee. The issue has been challenged by the assessee before the Ld. CIT(A) however, there was no representation by the assessee on 06 occasions, when the appeal was fixed for hearing. Under such circumstances, Ld. CIT(A) was compelled to decide the appeal based on facts on record available before him after deliberating thoroughly at length on the merits of the issue. As the assessee's conduct before us is also observed to be evasive and of a non-compliant as the group matters of the assessee were fixed for hearing on various dates but the assessee remains non-responsive or has represented only for seeking of adjournments. We, thus, in terms of aforesaid observations are of the considered opinion that there was no infirmity in the order of Ld. CIT(A) in confirming the addition made by the Ld. AO in absence of any plausible explanation by the assessee to dislodge the same. Further, we observe that the assessee's involvement in providing of Bogus Sales bills in lieu of comm ..... X X X X Extracts X X X X X X X X Extracts X X X X
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