IN INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHES (SMC), JAIPUR BEFORE: SHRI BHAGCHAND, ACCOUNTANT MEMBER ITA No. 434/JP/2014 Assessment Year : 1994-95 M/s. Vinayak Industries Ltd. cuke ACIT G-282, Industrial Area Vs. Circle- 2 Bhiwadi Jaipur PAN/GIR No.: V-5/AC/Circle-2/Alwar Appellant Respondent Assessee by: Shri Manish Agarwal, CA Revenue by:Shri R.A. Verma, Addl. CIT - DR Date of Hearing : 30/08/2016 Date of Pronouncement : 13 /10/2016 ORDER PER BHAGCHAND, AM assessee has filed appeal against order of ld. CIT(A), Alwar dated 30-04-2014 for assessment year 1994-95 wherein assessee has raised following grounds. 1. On facts and in circumstances of case ld. CIT(A) has grossly erred in not properly following directions of Hon'ble ITAT Jaipur Bench Jaipur and further erred in ignoring fact that no proper inquires were made to find out actual state whether books of account of appellant were lying in business premises when same was seized by 2 ITA No. 434/JP/2014 M/s. Vinayak Industries Ltd. vs. ACIT , Circle- 2, Alwar . RIICO, thus consequent order passed deserves to hold bad in law and resultant addition deserves to be deleted. 1.1 ld. CIT(A) has further failed to appreciate fact that business premises of appellant was seized by RIICO on 23-03-1996 where all books of account and related vouchers were maintained and kept in regular course thus same could not be produced during course of original / set aside assessment proceedings completed therefore, order passed by ld. CIT(A) is without properly appreciating facts on record and is against principal of natural justice and equity hence same deserves to be quashed. Without prejudice to above and in alternative 2. On facts and in circumstances of case ld. CIT(A) has grossly erred in confirming action of AO in adopting profit as per profit and loss account at Rs. 54,76,804/- instead of Rs. 40,22,920/- declared by assessee thereby confirming addition of Rs. 14,53,884/- without considering submissions made, hence amount so declared by assessee deserves to be accepted and addition sustained deserves to be deleted. 3. On facts and in circumstances of case, ld. CIT(A) has grossly erred in confirming addition of Rs. 1,57,000/- made u/s 40A(3) of I.T. Act, 1961 without considering submission made and hardship with assessee appellant, hence addition so made deserves to be deleted. 4. On facts and in circumstances of case ld. CIT(A) has grossly erred in confirming disallowance of Rs. 6,19,985/- claimed on account of sales commission when in fact said expense is related to year under consideration and has not been claimed by assessee in any of assessment years. Hence, said expense as claimed deserves to be allowed. 3 ITA No. 434/JP/2014 M/s. Vinayak Industries Ltd. vs. ACIT , Circle- 2, Alwar . 5. On facts and in circumstances of case ld. CIT(A) has grossly erred in confirming lumpsum addition of Rs. 2,00,000/- made by AO without pointing out any head under which same has been made and as simply concluded same by observing that assessee has claimed various expenses in profit and loss account and has raised share capital. said addition being based on no adverse material on record deserves to be deleted. 2.1 At outset of hearing, ld. AR of assessee prayed that business premises of assessee company was seized by RIICO on 23-03-1996 where all books of account and related vouchers were stranded and assessee could not take out those papers and therefore, they could not be produced before AO during assessment proceedings. ld. AR of assessee therefore, submitted that assessee was deprived off in contesting his case before lower authorities and issue in question may kindly be restored to authorities below for submitting relevant documents concerning case. 2.2 ld. DR opposed contention of AO and relied on orders of authorities below.. 2.3 I have heard rival contentions and perused materials available on record. It is noted from para 5.5 from order of ld. 4 ITA No. 434/JP/2014 M/s. Vinayak Industries Ltd. vs. ACIT , Circle- 2, Alwar . CIT(A) in which assessee submitted that assessee could not submit books of account before AO as premises of company had been seized by RIICO. relevant observations of ld. CIT(A) at para 5.5 and 5.6 are reproduced as under:- 5.5 During course of appellate proceedings, it is submitted that books of account could not be produced before AO as premises of company have been seized by RIICO. AO made enquiries with RIICO and it was informed that no books of account were found at time of seizure of premises. Thus, version of appellant could not be verified with reference to entries in books of accounts. appellant has stated that there has been transaction of sale and lease back of company lasts and therefore, amount of Rs. 15,23,000/- has been transferred to special reserve account. 5.6 In absence of any corroborative evidence to substantiate, sequence of events stated by appellant could not be accepted. Further, books of accounts have not been produced by appellant either before AO or in course of appellate proceedings and hence claim of appellant could not be verified. Therefore, I find that figure of profit declared by appellant in return of income at Rs. 54,76,804/- as correct and accordingly confirm addition of Rs. 14,53,884/- made by AO under this head. In view of submissions of ld. AR of assessee and orders of lower authorities, it will be in interest of justice and equity to restore issue relating to Ground No. 1 and 1.1 of assessee to file of AO to decide it afresh by providing adequate opportunity of 5 ITA No. 434/JP/2014 M/s. Vinayak Industries Ltd. vs. ACIT , Circle- 2, Alwar . being heard. assessee is also directed to produce all relevant records before AO concerning case. Since Ground Nos. 1 and 1.1 of assessee have been restored to file of AO to decide it afresh, therefore, alternative ground Nos. 2, 3,4 and 5 raised by assessee are not adjudicated upon. Thus appeal of assessee is allowed for statistical purposes. 3.0 In result, appeal of assessee is allowed for statistical purposes Order pronounced in open court on 13 /10/2016 Sd/- (Bhagchand) Accountant Member Jaipur Dated:- 13 /10/ 2016 Copy of order forwarded to: s 1. Appellant- M/s. Vinayak Industries Ltd. , Bhiwadi 2. Respondent- ACIT, Circle- 2, Alwar 3. CIT(A). 4. CIT, 5. DR, ITAT, Jaipur 6. Guard File (ITA No. 434/JP/2014) By order, Assistant. Registrar M/s. Vinayak Industries Ltd. v. ACIT, Circle- 2, Jaipur