1. ACIT Vs. Anil Khandelwal, I.T.A. Nos. 5516 & 5517/Del/2012, Date of Order: 18.07.2014, ITAT - Delhi
Presumption
u/s 134(4A)/292C is available only in the case of the person from whose
possession and control the documents are found and it is not available
in respect of a third party. Even in the case of such a person from
whose possession and control any incriminating document is found, the
presumption u/s 132(4A)/292C is a rebuttable one.
The AO
has heavily emphasized on the fact that Shri.S.K.Gupta was an entry
provider and since the names of the companies in which the appellant’s
family members or relatives were interested was found mentioned in the
document seized from Shri S.K.Gupta, it is enough to conclude that the
appellant must have paid cash to Shri Gupta to receive accommodation
entries from his group companies. Where as the appellant has denied the
contents of the impugned seized documents and the person from whom the
impugned documents were seized has also stated during cross-examination
that there has been no cash transactions between him and the appellant
or his family members or entities in which they are interested.
In the
absence any corroborative evidence to suggest that the entries found in
the seized documents were also reflected in the books of the appellant
or his concerns. It is well settled in law that the loose papers,
diaries and documents cannot possible be construed as books of account
regularly kept in the course of business. Such evidence would,
therefore, be outside the purview of Section 34 of the Evidence Act,
1972. Therefore, the revenue would not be justified in resting its case
just on the loose papers and documents found from third party if such
documents contained narrations of transactions with the assessee as
decided by the Hon’ble Supreme Court in the case of Central Bureau of
Investigation vs. V.C.Shukla (1988) 8 SSC 410 and Chuharmal vs.
Commissioner of Income Tax (1988) 172 250/38 Taxman 190 (SC).
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2. SPA Lifestyle (P.) Ltd. Vs. Assistant Commissioner of
Income Tax, I.T.A. No. 6777 (Delhi) of 2013, Date of Order: 28.03.2014,
ITAT - Delhi
No
penalty shall be levied u/s 271B in case where assessee furnished form
3CB alongwith return of income and merely because audit report was not
furnished in form 3CA.
The
short controversy in the present appeal is that if an assessee is
required to get its account audited under any other law but the said
audit has not been completed by the specified date for furnishing the
return of income then could he furnish tax audit report in form 3CB or
not and if assessee has furnished the report in form 3CB whether any
default can be imputed to assessee or not. In order to properly
appreciate the controversy, we reproduce section 44AB along with Rule 6G
and relevant reports in form 3CA and 3CB.
The
object of legislature is to avoid duplicacy of audit - first under other
law and then under Income Tax Act. There is no dispute that assessee
had obtained report in form 3CB along with form 3CD on 30th September,
2009 and the relevant details were furnished in the return of income
filed on line. Therefore, the assessee had made substantial compliance
with the provisions of section 44AB. It is further noticeable that
report in form 3CB requires the auditor to examine the balance sheet and
profit and loss account and certify that the same are in agreement with
the books of account maintained by the assessee, whereas form 3CA only
requires the audit report along with audited financial statement to be
annexed with the report. Thus, primarily the only difference in form 3CA
and form 3CB is that in form 3CA the Auditors are not required to give
separate audit report. Thus, when an assessee had furnished the tax
audit report in form 3CB then it cannot be said that it has not complied
with the provisions of sec. 44AB merely because the report is not in
form 3CA which was not possible for assessee to furnish.
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