M/s N.J.Thomas & Co.,, Kottayam v. ACIT, Kottayam

ITA 238/COCH/2010 | 2006-2007
Pronouncement Date: 29-02-2012 | Result: Dismissed

Appeal Details

RSA Number 23821914 RSA 2010
Assessee PAN AAEFN3878P
Bench Cochin
Appeal Number ITA 238/COCH/2010
Duration Of Justice 1 year(s) 11 month(s)
Appellant M/s N.J.Thomas & Co.,, Kottayam
Respondent ACIT, Kottayam
Appeal Type Income Tax Appeal
Pronouncement Date 29-02-2012
Appeal Filed By Assessee
Order Result Dismissed
Bench Allotted DB
Tribunal Order Date 29-02-2012
Date Of Final Hearing 27-02-2012
Next Hearing Date 27-02-2012
Assessment Year 2006-2007
Appeal Filed On 29-03-2010
Judgment Text
1 ITA NOS.237 & 238/COCH/2010 IN THE INCOME TAX APPELLATE TRIBUNAL COCHIN BENCH COCHIN BEFORE SHRI N.R.S. GANESAN (JM) AND SHRI B.R. BASKARA N(AM) ITA NOS.237 & 238/COCH/2010 (ASSESSMENT YEARS 2005-06 & 2006-07) M/S N.J. THOMAS & CO VS THE A.C.I.T. CIR.1 MATTETHRA COLONY YWCA LANE KOTTAYAM KOTTAYAM PAN : AAEFN3878P (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI R KRISHNA IYER RESPONDENT BY : SMT. VIJAYAPRABHA DATE OF HEARING : 27-02-2012 DATE OF PRONOUNCEMENT : 29-02-2012 O R D E R PER N.R.S. GANESAN (JM) BOTH THE APPEALS OF THE ASSESSEE ARE DIRECTED AGAI NST THE ORDER OF C.I.T.(A)- IV KOCHI DATED 19-02-2010 FOR THE ASSESSMENT YEARS 2 005-06 AND 2006-07. 2. BOTH THE APPEALS OF THE ASSESSEE WERE DISPOSED O F EARLIER BY THIS TRIBUNAL BY AN ORDER DATED 26-10-2010. HOWEVER ASSESSEE FILE D MISCELLANEOUS APPLICATIONS IN M.A. NOS 01 & 02/COCH/2011 ON THE G ROUND THAT GROUND NO.2 IN ASSESSMENT YEAR 2005-06 AND GROUNDS 2 & 3 IN ASSESSM ENT YEARS 2006-07 WERE NOT DISPOSED OF. ACCORDINGLY THIS TRIBUNAL BY AN ORDER DATED 27-12-2011 HAS REFIXED THE APPEALS FOR THE PURPOSE OF DISPOSING OF GROUND OF APPEAL NO.2 FOR THE 2 ITA NOS.237 & 238/COCH/2010 ASSESSMENT YEAR 2005-06 AND GROUNDS 2 & 3 FOR THE AS SESSMENT YEAR 2006-07. ACCORDINGLY THESE APPEALS WERE POSTED BEFORE THIS BENCH FOR FINAL DISPOSAL. 3. THE LD.REPRESENTATIVE FOR THE ASSESSEE FURTHER S UBMITTED THAT THERE WAS SURVEY IN THE PREMISES OF THE ASSESSEE ON 23-01-2008 AND BOOKS OF ACCOUNT WERE IMPOUNDED. ACCORDING TO THE LD.REPRESENTATIVE THE BOOKS OF ACCOUNT SEIZED SHOWS ACTUAL LOSS SUFFERED BY THE ASSESSEE. HOWEVE R THE LOSS FOUND IN THE BOOKS OF ACCOUNT WAS REJECTED BY THE LOWER AUTHORITIES. REFERRING TO THE INCOME-TAX ACT THE LD.REPRESENTATIVE SUBMITTED THAT THE PRESU MPTION AVAILABLE U/S 132(4) OF THE INCOME-TAX ACT WAS EXTENDED BY PROVISIONS OF SE CTION 292C TO THE BOOKS OF ACCOUNT FOUND IN THE COURSE OF SURVEY PROCEEDINGS A LSO. THEREFORE EVEN THOUGH IN THE COURSE OF SURVEY PROCEEDINGS THE BOOKS OF ACC OUNTS AND OTHER DOCUMENTS WERE IMPOUNDED THE PRESUMPTION AVAILABLE AS IN CAS E OF PROVISIONS OF SECTION 132(4) OF THE ACT. ACCORDING TO THE LD.REPRESENTAT IVE THE BOOKS OF ACCOUNT ACTUALLY SHOW THAT THE LOSS WAS INCURRED BY THE ASS ESSEE. THEREFORE THE LOSS EMANATING FROM THE BOOKS OF ACCOUNT MUST BE RECOGNIZ ED BY THE ASSESSING OFFICER. ACCORDING TO THE LD.REPRESENTATIVE SECTI ON 292C OF THE INCOME-TAX ACT WAS INTRODUCED BY FINANCE ACT 2008 SO AS TO EXTEND THE PRESUMPTION PROVIDED U/S 132(4A) IN RESPECT OF BOOKS OF ACCOUNT FOUND IN THE COURSE OF SURVEY OPERATION. THEREFORE THE LOSS SUSTAINED IN THE BO OKS OF ACCOUNT HAS TO BE RECOGNIZED. 4. ON THE CONTRARY SMT. VIJAYPRABHA THE LD. DR SU BMITTED THAT DURING THE COURSE OF SURVEY OPERATIONS THE REVENUE AUTHORITIE S FOUND THE BOOKS OF ACCOUNT. IT WAS ALSO FOUND THAT THERE WERE UNACCOUNTED CONTR ACT RECEIPTS IN THE COURSE OF SURVEY PROCEEDINGS. WHEN THE ASSESSEE WAS CONFRONT ED WITH THE MATERIAL FOUND IN RESPECT OF UNACCOUNTED CONTRACT RECEIPTS THE AS SESSEE ACCEPTED THAT THE 3 ITA NOS.237 & 238/COCH/2010 AMOUNTS IDENTIFIED AS UNACCOUNTED CONTRACT RECEIPTS WERE INDEED UNACCOUNTED. SINCE THE ASSESSEE ADMITTED THAT THE BOOKS OF ACCOUN T DO NOT REFLECT THE TRUE NATURE OF THE CONTRACT RECEIPTS ACCORDING TO THE L D.REPRESENTATIVE THE PRESUMPTION AS PROVIDED IN SECTION 292C IS NOT APPL ICABLE TO THE CASE OF THE ASSESSEE. 5. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND ALS O PERUSED THE MATERIAL AVAILABLE ON RECORD. ADMITTEDLY THERE WAS A SURVEY OPERATION IN THE PREMISES OF THE ASSESSEE AND THE BOOKS OF ACCOUNT WERE IMPOUNDED . IT IS ALSO AN ADMITTED FACT THAT DURING THE COURSE OF SURVEY OPERATION TH E REVENUE AUTHORITIES FOUND UNACCOUNTED CONTRACT RECEIPTS. THE BOOKS OF ACCOUNT FOUND DO NOT REFLECT THE ACTUAL CONTRACT RECEIPTS. THE ASSESSEE TAKING ADV ANTAGE OF THE PROVISIONS OF SECTION 292C CLAIMS THAT THE CONTENTS IN THE BOOKS O F ACCOUNT AND OTHER DOCUMENTS ARE PRESUMED TO BE TRUE. NO DOUBT WHEN THE BOOKS OF ACCOUNT AND OTHER DOCUMENTS ARE FOUND IT MAY BE PRESUMED TO BE AS TRUE. THE LEGISLATURE EMPLOYED THE WORD MAY. THEREFORE THE ASSESSING OFFICER HAS TO EXAMINE THE BOOKS OF ACCOUNT IN THE LIGHT OF OTHER MATERIAL FOUN D DURING THE COURSE OF SURVEY OPERATION. ADMITTEDLY THE CONTRACT RECEIPTS WERE NOT RECORDED IN THE BOOKS OF ACCOUNT. THEREFORE THE BOOKS OF ACCOUNT DO NOT REF LECT THE CORRECT CONTRACT RECEIPT. TO THAT EXTENT THERE WAS DEFECT IN THE B OOKS OF ACCOUNT. THEREFORE THE QUESTION OF PRESUMING THE BOOKS OF ACCOUNT AS TRUE D OES NOT ARISE FOR CONSIDERATION. THE MATTER WOULD STAND IN DIFFERENT FOOTING IN CASE THE ASSESSEE HAD ENTERED ALL THE CONTRACT RECEIPTS IN THE BOOKS O F ACCOUNT. ADMITTEDLY THE CONTRACT RECEIPTS WERE NOT ENTERED IN THE BOOKS OF A CCOUNT. THEREFORE THE PRESUMPTION AS PROVIDED IN SECTION 292C OF THE ACT MAY NOT BE APPLICABLE TO THE FACTS OF THE CASE. ACCORDINGLY WE DO NOT FIND ANY INFIRMITY IN THE ORDER OF THE LOWER AUTHORITY. WE UPHOLD THE SAME. 4 ITA NOS.237 & 238/COCH/2010 6. THE OTHER PART OF THE ORDER OF THIS TRIBUNAL DAT ED 26-10-2010 SHALL REMAIN AS SUCH. 7. IN THE RESULT BOTH THE APPEALS OF THE ASSESSEE STAND DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 29 TH DAY OF FEBRUARY 2012. SD/- SD/- (B.R. BASKARAN) (N.R.S. GANESAN) ACCOUNTANT MEMBER JUDICIAL MEMBER COCHIN DT : 29 TH FEBRUARY 2012 PK/- COPY TO: 1. M/S N.J. THOMAS & CO MATTEETHRA COLONY YWCA LANE KOTTAYAM 2. A.C.I.T. CIRCLE-1 KOTTAYAM 3. THE C.I.T(A)-IV KOCHI 4. THE COMMISSIONER OF INCOME-TAX KOTTAYAM 5. THE DR (TRUE COPY) BY ORDER ASSTT. REGISTRAR INCOME-TAX APPELLATE TRIBUNAL COCHIN BENCH