Commercial Engineers & Body Builders ... vs Assessee

These appeals were preferred by the assessees against the respective order of the ld. CIT(A) on various grounds.

2. These appeals were listed for hearing on 11.12.2014, but none appeared on behalf of the assessee. On perusal of record, it is noticed that on the last date of hearing i.e. on 17.11.2014, Shri. Rakesh Garg, Advocate appeared and the hearing was adjourned at his request for 11.12.2014. Despite having knowledge of the date of hearing, none appeared on behalf of the assessee on the date fixed for. Therefore, we have no other option :-2-:

but to hear the appeals ex-parte qua the assessee and accordingly heard the Revenue.

3. Since all these appeals were heard together, these are being disposed of through this consolidated order for the sake of convenience. However, we prefer to adjudicate them one after the other.

I.T.A. No. 457/LKW/2013:

4. In this appeal, the assessee has assailed the order of the ld. CIT(A), inter alia, on the following grounds:-

1. Because the Ld. CIT (Appeals) has erred on facts and in law in not allowing adequate opportunity and has erred in deciding the appeal ex-parte.

2. Because the assessee appellant being prevented by sufficient and reasonable cause in not making compliance, if any, the CIT (Appeals) has failed to appreciate the facts and circumstances of the case and proceeded to decide the appeal ex-parte.

3. Because, the Ld. CIT (Appeals) erred in law and on facts in confirming disallowance of Rs.324668/- by applying provisions section 14A read with rule 8D as no borrowed money was used for the purchase of shares and no income was claimed to be exempt on account of dividend on these shares.

4. Because, the Ld. CIT (Appeals) erred in law and on facts in confirming disallowance of Rs. 250000/- in respect of balance written off during the year.

5. Because, the Ld. CIT (Appeals) erred in law and on facts in rejecting the claim of the appellant that the gain on fluctuation of foreign exchange rates amounting to Rs.7136045/- in respect of imported machinery is not to be included as income while computing the taxable income as per provision of the Act in view of specific provisions of section 43A and other legal pronouncements.

6. Because, the Ld. CIT (Appeals) failed to understand that he is duty bound to assess the taxable income in accordance with the :-3-:

provisions of law and should not take advantage of ignorance of an assessee as to his rights as directed by the Board vide CBDT Circular No. 14 (XL-35) dated 11th April, 1955.

7. Because, the Ld. CIT (Appeals) failed to understand that the decision of Hon'ble Supreme Court in the case of Goetze (India) Ltd. Is not applicable in the cases of deduction patently allowable as per law.

8. Because, Ld. CIT (Appeals) failed to appreciate the fact and legal position of the case that the gains arising on account of fluctuation of foreign exchange rates amounting to Rs.7136045/-

in respect of imported machinery should not be included in computing the taxable income as per law but should be reduced from the cost of machinery as per specific section 43A.

9. Because, the order of the Ld. CIT (Appeals) is contrary to the facts, provisions of law and the principles of natural justice.

5. We have carefully examined the orders of the lower authorities in the light of the Revenue's contentions and we find that even before the ld. CIT(A), none appeared on behalf of the assessee. Therefore, the ld. CIT(A) had no other option but to confirm the order of the Assessing Officer on all the points of additions, as the assessee has not placed any material on record contrary to the findings of the Assessing Officer. Similar is the position before us, as nothing is placed before us contrary to the findings of the Assessing Officer on all the issues. We, therefore, find no infirmity in the orders of the lower authorities and accordingly we confirm the order of the ld. CIT(A).

I.T.A. No. 458/LKW/2013:

6. In this appeal, the assessee has assailed the order of the ld. CIT(A), inter alia, on the following grounds:-

1. Because the Ld. C!T (Appeals) has erred on facts and in law in :-4-:

not considering the submissions filed by the assessee appellant and without appreciating the same has proceeded to -decide the appeal, which appellate order is contrary to facts and bad in law.

2. Because the Ld. CIT (Appeals) has failed to consider the written submissions and demonstrate as to how the written submissions and the details filed by the appellant were not adequate or explanatory, as desired by him.

3. Because the Ld. CIT (Appeals) has erred on facts and in law in not considering the explanation as filed by the assessee and has arbitrarily concluded that the order passed by the Assessing is in accordance to law.

4. That the Ld. CIT (Appeals) has erred in law and on facts in confirming the following additions/disallowances:-

i) Rs.5,30,187/- Being alleged disallowance of TDS out of total

Bad Debts claimed at Rs.1,32,21,799/- while confirming the amount the Ld. CIT (Appeals) has failed to consider that the amount has already been considered as income in earlier year but as the TDS Certificates were not received it was written off in the books.

ii) Rs.4,05,770/- Being alleged disallowances of Bad Debts

without considering that the amount relates to Rewa Branch which had been closed and the debts were not recoverable.

iii) Rs.2,83,364/- Being alleged disallowance of liability in the

name of M/s. Sainara Foods Limited U/s.

41(1) of the I.T.Act, 1961.

iv) Rs. 1,75,498/- Being alleged disallowance out of

Miscellaneous Expenses without considering that all the expenses claimed were of :-5-:

revenue nature and were incidental to the conduct of business.

v) Rs.99,56,258/- Being alleged addition under the head Long

Term Capital Gains on sale of various fixed assets by invoking the provisions of section 50C but without considering the provisions of sub section (2) of section 50C of Income tax Act, 1961 and without making a reference to the valuation officer for ascertaining the full value of the consideration of the assets sold.

vi)Rs.3,20,90,164/-Being alleged addition/disallowance of Long

Term Loss on sale of 2 lacs Equity shares of Kailash Vahan Udyog Limited treating the transaction of sale of shares as sham without appreciating the facts regarding transfer of shares in proper perspective.

viii)Rs.5,32,366/- The alleged addition being u/s. 14A read with

rule 8D of the I.T.Act, though the Ld. CIT(Appeals) keeping in view the facts of the case observed that rule 8D is not applicable retrospectively, yet issued directions to the A.O. to calculate reasonable disallowance. The direction of the Ld. CIT (Appeals) being contrary to the facts and law deserves to be quashed.

5. That the additions/disallowances confirmed by the Ld. C1T (Appeals) are unjustified, and against the principles of natural justice and equity and deserves to be deleted.

7. We have carefully examine the orders of the lower authorities in the light of the Revenue's contentions and we find that on all the issues the assessee has made general submissions instead of placing evidence :-6-:

contrary to the findings of the Assessing Officer. Moreover, the assessee has not represented its case before us. We, however, have carefully examined the order of the ld. CIT(A) on all the issues and we find no infirmity therein. We accordingly confirm his order.

I.T.A. No. 459/LKW/2013:

8. In this appeal, the assessee has assailed the order of the ld. CIT(A), inter alia, on the following grounds:-

1. Because the Ld. CIT (Appeals) has erred on facts and in law in not allowing adequate opportunity and has erred in deciding the appeal ex parte.

2. Because the assessee appellant being prevented by sufficient and reasonable cause in not making compliance, if any, the Ld. CIT (Appeals) has failed to appreciate the facts and circumstances of the case and proceeded to decide the appeal exp arte.

3. Because the Ld. CIT (Appeals) erred in law and on facts in confirming disallowance of Rs.3,98,508/- U/s 14A of the Act which is contrary to facts and law because on proper consideration of facts it would be found that in appellant's case provisions of Section 14A are not applicable, hence Rs.3,98,508/- is contrary to law, facts and deserves to be deleted.

4. Because the Ld. C!T (Appeals) erred in law and on facts in confirming disallowance Rs.6,00,000/- out of remuneration paid to Sri Ishwar Chandra, Director because the entire remuneration paid to him has been paid keeping in view the qualification, work experience and past association with the assessee company and is duly approved by the Board of Directors. The remuneration paid is for the purpose of business and be allowed because the Learned CIT (Appeals) failed to bring any material on record to justify that remuneration paid to Sri Ishwar Chandra is not in accordance with the law and at the cost of similar services in the open market.

5. Because the Ld. CIT (Appeals) has failed to bring on record the material in the shape of evidence and to demonstrate as to how :-7-:

remuneration paid to Sri Ishwar Chandra is excessive and unreasonable.

9. Having carefully examined the orders of the lower authorities in the light of the Revenue's contentions, we find that even before the ld. CIT(A) none appeared on behalf of the assessee. In the absence of any material contrary to the findings of the Assessing Officer, the ld. CIT(A) has confirmed the additions. Similar is the position before us, as none appeared on behalf of the assessee. Nothing is placed on record contrary to the findings of the Assessing Officer. We, therefore, find no infirmity in the order of the ld. CIT(A), who has rightly dismissed the appeal of the assessee.

I.T.A. No. 460/LKW/2013:

10. In this appeal, the assessee has assailed the order of the ld. CIT(A), inter alia, on the following grounds:-

1. Because the Ld. CIT (Appeals) has erred on facts and in law in not allowing adequate opportunity and has erred in deciding the appeal ex parte.

2. Because the assessee appellant being prevented by sufficient and reasonable cause in not making compliance, if any, the CIT (Appeals) has failed to appreciate the facts and circumstances of the case and proceeded to decide the appeal ex parte.

3. Because, the Ld. CIT (Appeals) erred in law and on facts in appreciating the facts of the case and confirmed disallowance of Rs.3,80,753/- U/s -14A read with rule 8D as no borrowed money was used for the purchase of shares and no income was claimed to be exempt on account of dividend on these shares.

4. Because, the Ld. CIT (Appeals) erred in law and on facts in appreciating that the repairs of building is not of capital nature :-8-:

and confirmed addition of Rs.1,41,412/-.

5. Because, the Ld. GIT (Appeals) erred in law and on facts in confirming ad hoc disallowance of Rs.1,00,000/-, out of rebate and commission expenses.

6. Because, the assessment order and notice of demand are contrary to the facts, provisions of law and the principles of natural justice.

11. Having carefully examined the orders of the lower authorities in the light of the Revenue's contentions, we find that even before the ld. CIT(A) none appeared on behalf of the assessee. In the absence of any material contrary to the findings of the Assessing Officer, the ld. CIT(A) has confirmed the additions. Similar is the position before us, as none appeared on behalf of the assessee. Nothing is placed on record contrary to the findings of the Assessing Officer. We, therefore, find no infirmity in the order of the ld. CIT(A), who has rightly dismissed the appeal of the assessee.

12. In the result, appeals of the assessees are dismissed.

Order was pronounced in the open court on the date mentioned on the captioned page.

Sd/ Sd/- [A. K. GARODIA] [SUNIL KUMAR YADAV] ACCOUNTANT MEMBER JUDICIAL MEMBER

DATED: 17th December, 2014 JJ:1112 Copy forwarded to: 1. Appellant 2. Respondent 3. CIT(A) 4. CIT 5. DR Assistant Registrar