VIJAY SOLVEX LTD,ALWAR vs. DCIT, ALWAR

आयकर अपीलीय अधिकरण] जयपुर न्यायपीठ] जयपुर IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHES,”A” JAIPUR Jh lanhi xkslkbZ] U;kf;d lnL; ,oa Jh jkBkSM+ deys'k t;arHkkbZ] ys[kk lnL; ds le{k BEFORE: SHRI SANDEEP GOSAIN, JM & SHRI RATHOD KAMLESH JAYANTBHAI, AM vk;dj vihy la-@ITA No. 357/JP/2023 fu/kZkj.k o"kZ@Assessment Years : 2014-15 cuke M/s Vijay Solvex Limited DCIT, Vs. Bhagwati Sadan, Swami Dayanand Alwar Marg, Alwar LFkk;h ys[kk la-@thvkbZvkj la-@PAN/GIR No.: AAACV 6864 A vihykFkhZ@Appellant izR;FkhZ@Respondent fu/kZkfjrh dh vksj ls@ Assessee by : Sh. P. C. Parwal (FCA) jktLo dh vksj ls@ Revenue by : Sh. Arvind Kumar (CIT) lquokbZ dh rkjh[k@ Date of Hearing : 09/08/2023 mn?kks"k.kk dh rkjh[k@Date of Pronouncement: 26/09/2023 vkns'k@ ORDER PER: RATHOD KAMLESH JAYANTBHAI, AM

This appeal is filed by assessee and is arising out of the order of the Commissioner of Income Tax (Appeals)-4, Jaipur dated 30.03.2023 [here in after (ld. CIT(A))] for assessment year 2014-15 which in turn arise from the order dated 29.12.2018 passed under section 143(3)/144C(3) r.w.s 153A of the Income Tax Act, by the ACIT, Central Circle, Alwar.

2. The assessee has marched this appeal on the following grounds:-

2 Vijay Solvex Ltd vs. DCIT “1. That the ld. assessing officer has erred in law as well as on the facts and circumstances of the case in making the additions on account of Unaccounted Sales for Rs. 930000.00 under the provisions of Income Tax Act, 1961 simply on the basis of his own presumption and surmises and on the basis of notting and jotting, which have no reference of any sale and the addition is without controverting the submissions of the assessee company and learned Commissioner of Income-Tax (A)-IV, Jaipur has erred in sustaining the same.”

3. The fact as culled out from the records is that a search and seizure action u/s 132 of the Income Tax Act, 1961 was carried out by the Income Tax Department on the members/concerns of Data Group, Alwar on 14.10.2015 of which the Assessee is one of the members. During the course of the above referred action, stock-in-trade, documents, books of account and/or loose papers were found and/or seized from the premises of the members of the Data Group of which one such member happens to be the Assessee. Thereafter, the jurisdiction over the case was assigned to Central Circle, Alwar by the Pr. CIT, Alwar by means of an Order u/s 127 of the Act circulated vide Pr. CIT/Alw/127/2015-16/2602 dated 12.02.2016.

Notice under section 153A of the Act was issued and served upon the Assessee on 06.09.2016 requiring him to file a true and correct return of income as prescribed under Rule 12 of the Income Tax Rules, 1962 within 15 days of the service of the said notice. acknowledgement no. 427028621281114 declaring income of Rs. 8,01,91,080/-. In response to the notice u/s 153A, a return of income was e-filed by the assessee company vide acknowledgment No. 583738941050117 on 05/01/2017 declaring income of Rs. 8,01,91,080/-.

The assessee company primarily engaged in the manufacturing, crushing and extracting of oil from oil seeds, refining of oil, producing of vegetable oil, Manufacturing of Bone China crockery, Insulators & Generation of electricity. Also engaged in manufacturing of tin containers etc. and power generation through Wind Mill set up at Jaisalmer. There is no change in nature & style of business as well as the its management in the year under consideration.

3.2 In the assessment proceeding pursuant to the search a sum of Rs. 46,96,642/- was added on account of Dharmada / charity as part of sales.

The ld. CIT(A) has deleted the said addition and there is no disputed on that part of the either party. The only dispute that the assessee has taken up in this appeal is related to the addition of Rs. 9,30,000/- made by the ld. AO and sustained by the ld. CIT(A). On the issue of the related facts is that a diary was seized from the business premises of M/s Vijay Solvex Ltd (VSL) situated at Bhagwati Sadan, S.D. Marg, Alwar. The assessee during Exhibit-1 of annexures AS. The assessee failed to explain the transactions during search as well as post search proceedings. During the course of assessment proceedings the assessee vide query letter dated 30/10/2018 was asked to give the proper justification of the transactions mentioned on the above said page and in absence of any proper justification it was asked to show cause as to why the same may not be considered as its unaccounted sales and added to the total income of the assessee. The A/R of the assessee vide reply dated 18/12/2018 submitted as under:-

Page number 98 of Ex. No. 1 of AS-1:- This page number relates to AS-2 in place of AS-1, as the AS-1 relates to residence at Bhagwati Sadan and there is no such notting and jottings on page number 98 of AS-1, therefore, the AS-1 should be read as AS-2. During the course of recording of statement of Sh. Ishwar Chand Gupta, he has stated in question and answer number 13 that these notting and jottings are in relation to the method or working of the cash discount to be given to the parties, if the parties makes the payment 15 days before the due date, on proportionate basis, copy enclosed (Annexure 2). Further, the date of 26.10.2013 is mentioned on the said page and we are enclosing therewith a copy of customer ledger entry and your honor will observe while going through the said ledger, that on 26.10.2013, the order entries on 26.10.2013 are revolving around 930000.00 and in order to work out the cash discount to be given an illustrative figure/ amount of Rs. 930000.00 was picked up. In this regard, we beg to invite your honor attention towards letter/reply dated 11.12.2017 given in the case of Sh. Vijay Data, copy enclosed (Annexure 3), wherein the following explanation was given:- "It is working to understand the calculation of cash discount, 60p on Rupees 100/- on payment realize from a customer within the due time and does not hold any financial implication on the books of accounts of the assessee or its company kindly refer question number 13 of statement recorded dated 18.09.2017 of Sh. Ishwar Chand Gupta."

5 Vijay Solvex Ltd vs. DCIT Thus, in view of the above submissions, we humbly submits that there is no occasion to consider the said notting and jottings as unaccounted sales and request your honor to kindly not to draw any adverse inference out of the said nottings and jottings made on the diary referred hereinabove."

The ld. AO noted that the reply of the assessee considered carefully but not found tenable. In support of its claim the A/R of the assessee a copy of ledger a/c of 'Gemini Enterprises'. On perusal of the same it was noticed that there was not any entry of amount of Rs. 9,30,000/-. The seize document itself does not have any name of party or date. Therefore, the submission of the assessee could not be relied upon. The assessee is just trying to correlate any entry found in its books of accounts of similar amount as mentioned on the page. Niether the amount of Rs. 9,30,000/- nor the amount of cash discount of Rs. 55477-mentioned on the page was found entered from the regular books of accounts. In view of the above, the reply of the assessee was just an afterthought and not found sustainable.

The assessee completely failed to verify the amount of Rs. 9,30,000/- from the books of accounts. Therefore, the amount of Rs. 9,30,000/- was considered as unaccounted sales of the assessee and addition of even amount is being made in the total income of the assessee. preferred an appeal before the ld. CIT(A)/NFAC. A propose to the grounds so raised the relevant finding of the ld. CIT(A)/NFAC is reiterated here in below:

“7.2 I have considered the facts of the case and written submissions of the appellant as against the observations/findings of the AO in the assessment order for the year under consideration. The contentions/submissions of the appellant are being discussed and decided as under:- (i) The AO has observed that during the course of search, a diary was seized from the business premises of M/s Vijay Solvex Ltd. The appellant was asked during the search to explain the transactions mentioned at page No. 98 of Ex. 1 of Annex. AS-1. The assessee failed to explain the transactions during search as well as post search proceedings. During the course of assessment proceedings, the appellant was asked again to give proper justification about the transaction mentioned on the above said page. In response, the appellant furnished a copy of ledger a/c of "Gemini Enterprises and from the ledger A/c the AO observed that there was no entry of amount of Rs. 9,30,000/- nor the amount of cash discount of Rs. 5547/- was there. Therefore, the AO made an addition of Rs. 9,30,000/- on account of unaccounted sale. ii) During the appellate proceedings, the AR of the appellant has contended that loose papers are created merely on the basis of estimation, and it is not mandated that these papers provide exactness to be matched with the books and in support a copy of customer ledger entry was provided. Further, the AR of the appellant has also contended that merely on the basis of notting on the loose paper containing rough estimates prepared to understand the working of cash discount cannot be relied upon to make addition on account of undisclosed income in the absence of any independent evidence. iii) On perusal of copy of customer ledger entry, which is in the name of Gemini Enterprises, it has been observed that there was no entry of the amount of Rs, 9,30,000/- and the cash discount was also not entered. Only on the basis of matching of date i.e. 26.10.2013 on the seized paper and customer ledger entry, it cannot be said that the customer ledger entry provided by the appellant is related to seized paper. The principal amount and amount of cash discount should be matched. Further, on the issue raised by the AR of the appellant that loose paper containing rough estimates prepared to understand the working of cash discount, it has been observed that on the one hand the appellant has himself accepted during the course of statement u/s 132(4) that this page is related to cash discount and statement recorded u/s 132(4) has evidential value

7 Vijay Solvex Ltd vs. DCIT which is supported by case laws, on the other hand, the AR of the appellant is producing a customer ledger entry to prove the genuineness of the transaction of Rs. 9,30,000/-. Hence it cannot be said that it is a only loose paper containing rough estimate. (iv) This is a fact that this document was seized at the time of search and as per provisions of sec. 132(4A) a presumption is drawn that it is a true documents and not a dumb document. It mentions a specific date i.e. 26.10.2013 which is relevant for the A.Y. under consideration and also mentions the figure of Rs. 9,30,000/-. The appellant has failed to produce any evidence to the effect that it is dully recorded in the books of accounts. The appellant's submissions on the issue remain unsubstantiated. The claim that it is calculation of discount is not logical since it is not a complicated calculation and the appellant has not been able to prove with evidence that any such discount was given. In view of these facts and circumstances of the case, I do not find any ambiguity in the addition made by the AO which is based on the entries found to be recorded in the seized document. Accordingly, this ground of appeal is rejected and the addition of Rs. 9,30,000/- is confirmed.”

5. As the assessee has not received the relief in second addition of Rs. 9,30,000/- so made by the ld. AO. The assessee preferred the present appeal on the single ground challenging the confirmation of the addition by the ld. CIT(A). Apropos to the sole ground the ld. AR appearing on behalf of the assessee has placed their written submission on record and the same is reproduced here in below:

1. The assessee filed the return declaring total income of Rs.8,01,91,080/- on 28.11.2014. A search was conducted on the business premises of assessee on 14.10.2015. In pursuance to notice u/s 153A the assessee again filed the return on 05.01.2017 declaring same income.

2. In course of assessment proceedings the AO on the basis of Pg 98 of Annexure AS-2 scanned at Pg 10 of the assessment order observed that the paper represent unaccounted sales of Rs.9,30,000/- by not accepting the explanation of assessee and thus made addition for the same.

8 Vijay Solvex Ltd vs. DCIT 3. The Ld. CIT(A) at Pg 21-25 of its order after reproducing the submission of assessee held that the paper contains a specific date, i.e. 26.10.2013 and therefore u/s 132(4A) it is presumed to be a true document and not a dumb document. The assessee failed to produce any evidence that the amount noted on the paper is recorded in books of accounts. The claim that it is a calculation of discount is not logical since it is not a complicated calculation and assessee has not proved with evidence that any discount was given. Accordingly the addition was confirmed.

Submission:-

Ashwani Kumar Bhardwaj Vs. DCIT 21 Taxworld 358 (Jaipur) (Trib.) There can be no addition on the basis of working papers if they do not indicate materialization of any financial transaction and they have to be read as they are.

Monga Metals (P) Ltd. Vs. ACIT 67 TTJ 247 (All.) (Trib.) Burden is on the revenue to establish that figures appearing in the loose papers found in search constituted undisclosed income of the assessee and taxable.

9 Vijay Solvex Ltd vs. DCIT Jagdamba Rice Mills Vs. ACIT 67 TTJ 838 (Chd.) (Trib.) Documents seized during search not being clear as to whether items were payments or receipts or some other calculations, so no additions could be made on the basis of such dumb documents. Ashwani Kumar Vs. ITO 39 ITD 183 (Delhi) (Trib.) To make addition on the basis of dumb documents it is duty of the revenue to collect necessary evidence, which might provide an acceptable narration to the various entries. The evidence collected should be such that any reasonable man would accept the hypothesis advanced by the revenue that the figures written on the right side of the slip represents income earned by the assessee.

ACIT Vs. Shailesh S. Shah 63 ITD 153 (Mum.) (Trib.) The head note of the decision reads as under:- Income—Addition to income—Addition on the basis of contents of figure in loose paper—Findings of the AO wherein he has considered the figures of 1,77,052, 1,50,000 and 11,100 as assesses income for this assessment year—Figure of Rs. 1,77,052 has been taken as commission earned by the assessee during the period January, 1985 to December, 1985, and figure of Rs. 1,50,000 and Rs. 11,100 have been taken as assesses undisclosed income without giving any reason or bringing any material in support of such a conclusion—Findings of the AO are based only on suspicion and suspicion however strong it may, cannot take the place of proof. So, one is unable to sustain the findings of the AO— Therefore, conclusion arrived at by the AO was based purely on suspicions and the CIT(A) was justified in deleting the additions having been made only on suspicions Jayanti Lal Patel Vs. ACIT & Ors. 20 TW 546 (Raj.) (HC) On the basis of certain figures written on a piece of paper found during course of search, addition cannot be made in the normal course without proper justification. In view of above, addition confirmed by Ld. CIT(A) be directed to be deleted.” 5.1 The ld. AR of the assessee in addition to the written submission so filed also argued that the page in question is nothing but a rough notting made to explain the scheme of discount to the buyer by the employee of the assessee. In that page neither the bill number nor the name of the buyer is mentioned. On this paper C/D is written which means the cash discount. On this page no statement was recorded either during the search or in the post of Ishwar Chand Gupta, salesmen of the assessee company was recorded on 18.09.2017 where in he has in question no. 13 explained that on this page calculation of cash discount is noted and the same is explained by him and this being the example there is no bill number or name of the party is mentioned. Based on these arguments the ld. AR of the assessee prayed to delete the alleged addition.

iz'u 13 eSa vkidks Annexure As-1 Ex-1 dk ist la[;k 98 fn[kk jgk gwWa ftlesa :0 9]30]000@& dh jkf’k ntZ gS dk O;kSjk izLrqr djsaA mRrj%& ;g ist fot; lksyosDl ls lacaf/kr gS ftles dh dS’k fMLdkmUV nsus dh dk;Z’kSyh gS tks bl izdkj gS fd ;fn dksbZ ikVhZ 15 fnu ds nkSjku iwjh isesaUV djrh gS rks mls fMLdkmUV fn;k tkrk gS tks fd bl izdkj gS fd%& ewy jkf’k @100-6 x 100 On perusal of this question and answer it is no clear that the ld. AO asked Mr. Gupta to give the details which he has given and the ld. AO thereafter not raised any question related to treating this example as real sale transaction. While search this is the only instance found and for which we found the explanation of the salesman satisfactory and therefore, this single sale transaction in the absence of any documentary evidence placed on record cannot be considered as unaccounted sales based on the fact that direct or corroborative evidence cannot be considered as unaccounted sales. We draw strength on this issue from the finding of the jurisdictional high Court judgment in the case of Jayanti Lal Patel v. Assistant Commissioner of Income-tax [1998] 99 TAXMAN 417 (RAJ.) where in the court held that:

In the result, appeal of the assessee is allowed.