IN HIGH COURT OF KERALA AT ERNAKULAM PRESENT HONOURABLE MR.JUSTICE K.VINOD CHANDRAN & HONOURABLE MR. JUSTICE ASHOK MENON THURSDAY ,THE 14TH DAY OF FEBRUARY 2019 / 25TH MAGHA, 1940 ITA.No. 246 of 2013 AGAINST ORDER/JUDGMENT IN ITA 331/2012 of I.T.A.TRIBUNAL,COCHIN BENCH DATED 24-05-2013 APPELLANT/S: RAJAN JEWELLARY KACHERITHAZHAM, MUVATTUPUZHA. RESPONDENT/S: COMMISSIONER OF INCOME TAX CENTRAL CIRCLE, COCHIN. BY ADVS. SRI.P.K.R.MENON,SENIOR COUNSEL, GOI(TAXES) SRI.JOSE JOSEPH SC FOR INCOME TAX OTHER PRESENT: SRI JOSE JOSEPH SC THIS INCOME TAX APPEAL HAVING BEEN FINALLY HEARD ON 14.02.2019, ALONG WITH ITA.5/2014, ITA.280/2013, ITA.283/2013, ITA.289/2013, ITA.293/2013, ITA.312/2013, COURT ON SAME DAY DELIVERED FOLLOWING: ITA Nos.246/2013 & connected cases ::2:: IN HIGH COURT OF KERALA AT ERNAKULAM PRESENT HONOURABLE MR.JUSTICE K.VINOD CHANDRAN & HONOURABLE MR. JUSTICE ASHOK MENON THURSDAY ,THE 14TH DAY OF FEBRUARY 2019 / 25TH MAGHA, 1940 ITA.No. 5 of 2014 AGAINST ORDER/JUDGMENT IN ITA 332/2012 of I.T.A.TRIBUNAL,COCHIN BENCH APPELLANT/S: RAJAN JEWELLARY KACHERITHAZHAM, MUVATTUPUZHA. BY ADV. SRI.RAMESH CHERIAN JOHN RESPONDENT/S: COMMISSIONER OF INCOME TAX CENTRAL CIRCLE, COCHIN. BY ADVS. SRI.P.K.R.MENON,SENIOR COUNSEL, GOI(TAXES) SRI.JOSE JOSEPH SC FOR INCOME TAX THIS INCOME TAX APPEAL HAVING BEEN FINALLY HEARD ON 14.02.2019, ALONG WITH ITA.312/2013, ITA.246/2013, ITA.293/2013, ITA.289/2013, ITA.280/2013, ITA.283/2013, COURT ON SAME DAY DELIVERED FOLLOWING: ITA Nos.246/2013 & connected cases ::3:: IN HIGH COURT OF KERALA AT ERNAKULAM PRESENT HONOURABLE MR.JUSTICE K.VINOD CHANDRAN & HONOURABLE MR. JUSTICE ASHOK MENON THURSDAY ,THE 14TH DAY OF FEBRUARY 2019 / 25TH MAGHA, 1940 ITA.No. 280 of 2013 AGAINST ORDER/JUDGMENT IN ITA 333/2012 of I.T.A.TRIBUNAL,COCHIN BENCH DATED 24-05-2013 APPELLANT/S: RAJAN JEWELLERY KACHERITHAZHAM, MUVATTUPUZHA. BY ADV. SRI.RAMESH CHERIAN JOHN RESPONDENT/S: COMMISSIONER OF INCOME TAX CENTRAL CIRCLE, COCHIN. BY ADVS. SRI.P.K.R.MENON,SENIOR COUNSEL, GOI(TAXES) SRI.JOSE JOSEPH SC FOR INCOME TAX THIS INCOME TAX APPEAL HAVING BEEN FINALLY HEARD ON 14.02.2019, ALONG WITH ITA.5/2014, ITA.312/2013, ITA.246/2013, ITA.293/2013, ITA.289/2013, ITA.283/2013, COURT ON SAME DAY DELIVERED FOLLOWING: ITA Nos.246/2013 & connected cases ::4:: IN HIGH COURT OF KERALA AT ERNAKULAM PRESENT HONOURABLE MR.JUSTICE K.VINOD CHANDRAN & HONOURABLE MR. JUSTICE ASHOK MENON THURSDAY ,THE 14TH DAY OF FEBRUARY 2019 / 25TH MAGHA, 1940 ITA.No. 283 of 2013 AGAINST ORDER/JUDGMENT IN ITA 334/2012 of I.T.A.TRIBUNAL,COCHIN BENCH DATED 24-05-2013 APPELLANT/S: RAJAN JEWELLERY KACHERITHAZHAM, MUVATTUPUZHA. BY ADV. SRI.RAMESH CHERIAN JOHN RESPONDENT/S: COMMISSIONER OF INCOME TAX CENTRAL CIRCLE, COCHIN. BY ADVS. SRI.P.K.R.MENON,SENIOR COUNSEL, GOI(TAXES) SRI.JOSE JOSEPH SC FOR INCOME TAX THIS INCOME TAX APPEAL HAVING BEEN FINALLY HEARD ON 14.02.2019, ALONG WITH ITA.5/2014, ITA.312/2013, ITA.246/2013, ITA.293/2013, ITA.289/2013, ITA.280/2013, COURT ON SAME DAY DELIVERED FOLLOWING: ITA Nos.246/2013 & connected cases ::5:: IN HIGH COURT OF KERALA AT ERNAKULAM PRESENT HONOURABLE MR.JUSTICE K.VINOD CHANDRAN & HONOURABLE MR. JUSTICE ASHOK MENON THURSDAY ,THE 14TH DAY OF FEBRUARY 2019 / 25TH MAGHA, 1940 ITA.No. 289 of 2013 AGAINST ORDER/JUDGMENT IN ITA 335/2012 of I.T.A.TRIBUNAL,COCHIN BENCH DATED 24-05-2013 APPELLANT/S: RAJAN JEWELLERY KACHERITHAZHAM, MUVATTUPUZHA. BY ADV. SRI.RAMESH CHERIAN JOHN RESPONDENT/S: COMMISSIONER OF INCOME TAX CENTRAL CIRCLE, COCHIN. BY ADVS. SRI.P.K.R.MENON,SENIOR COUNSEL, GOI(TAXES) SRI.JOSE JOSEPH SC FOR INCOME TAX THIS INCOME TAX APPEAL HAVING BEEN FINALLY HEARD ON 14.02.2019, ALONG WITH ITA.5/2014, ITA.312/2013, ITA.246/2013, ITA.293/2013, ITA.280/2013, ITA.283/2013, COURT ON SAME DAY DELIVERED FOLLOWING: ITA Nos.246/2013 & connected cases ::6:: IN HIGH COURT OF KERALA AT ERNAKULAM PRESENT HONOURABLE MR.JUSTICE K.VINOD CHANDRAN & HONOURABLE MR. JUSTICE ASHOK MENON THURSDAY ,THE 14TH DAY OF FEBRUARY 2019 / 25TH MAGHA, 1940 ITA.No. 293 of 2013 AGAINST ORDER/JUDGMENT IN ITA 336/2012 of I.T.A.TRIBUNAL,COCHIN BENCH DATED 24-05-2013 APPELLANT/S: RAJAN JEWELLARY KACHERITHAZHAM, MUVATTUPUZHA. BY ADV. SRI.RAMESH CHERIAN JOHN RESPONDENT/S: COMMISSIONER OF INCOME TAX CENTRAL CIRCLE, COCHIN . BY ADVS. SRI.P.K.R.MENON,SENIOR COUNSEL, GOI(TAXES) SRI.JOSE JOSEPH, SC, FOR INCOME TAX THIS INCOME TAX APPEAL HAVING BEEN FINALLY HEARD ON 14.02.2019, ALONG WITH ITA.5/2014, ITA.312/2013, ITA.246/2013, ITA.289/2013, ITA.280/2013, ITA.283/2013, COURT ON SAME DAY DELIVERED FOLLOWING: ITA Nos.246/2013 & connected cases ::7:: IN HIGH COURT OF KERALA AT ERNAKULAM PRESENT HONOURABLE MR.JUSTICE K.VINOD CHANDRAN & HONOURABLE MR. JUSTICE ASHOK MENON THURSDAY ,THE 14TH DAY OF FEBRUARY 2019 / 25TH MAGHA, 1940 ITA.No. 312 of 2013 AGAINST ORDER/JUDGMENT IN ITA 337/2012 of I.T.A.TRIBUNAL,COCHIN BENCH DATED 24-05-2013 APPELLANT/S: RAJAN JEWELLERY KACHERITHAZHAM, MUVATTUPUZHA. BY ADV. SRI.RAMESH CHERIAN JOHN RESPONDENT/S: COMMISSIONER OF INCOME TAX CENTRAL CIRCLE, COCHIN. BY ADVS. SRI.P.K.R.MENON SR.COUNSEL GOITAXES SRI.JOSE JOSEPH SC FOR INCOME TAX THIS INCOME TAX APPEAL HAVING BEEN FINALLY HEARD ON 14.02.2019, ALONG WITH ITA.5/2014, ITA.246/2013, ITA.293/2013, ITA.289/2013, ITA.280/2013, ITA.283/2013, COURT ON SAME DAY DELIVERED FOLLOWING: ITA Nos.246/2013 & connected cases ::8:: JUDGMENT [ ITA 246/2013, ITA.5/2014, ITA.280/2013, ITA.283/2013, ITA.289/2013, ITA.293/2013, ITA.312/2013 ] Vinod Chandran, J. Assessments were carried out for seven years, 2003-04 to 2009-10, under Section 153A, and appeals arise from order of Tribunal which disposed of appeals filed by assessee and revenue. questions of law raised by assessee as available in memorandum of appeal are following:- 1. Whether on facts and in circumstances of case Income Tax Appellate Tribunal, after admitting that Appellate authorities are entitled to adjudicate validity of ITA Nos.246/2013 & connected cases ::9:: search, was justified in not considering issue, on ground that issue of validity of search proceedings, due to non presence of panchas, was not raised before search party or before Assessing Officer? 2. Whether on facts and in circumstances of case, Appellate Tribunal was justified in not cancelling assessment in light of order of co-ordinate Bench of Tribunal which order was affirmed by this Hon'ble Court? 3. Whether on facts and in circumstances of case Income Tax Appellate Tribunal ought to have found that by virtue of newly introduced section 153A by Finance Act, ITA Nos.246/2013 & connected cases ::10:: 2003 and in view of impact thereto as held in 241 CTR 108 in case of M.D. Overseas Limited v. Director General of Income Tax, order passed is illegal and without authority of law in view of absence of panchas ? 4. Whether on facts and in circumstances of case, Tribunal was justified in law in holding that assessment is not barred by limitation without dealing with undisputed postal records produced; more so when onus was on department to prove service as held in 166 CTR 461 in case of Venkat Naicken Trust and another v. Income Tax Officer ? 5. Whether on facts and in circumstances of case, Tribunal ITA Nos.246/2013 & connected cases ::11:: was justified in law and on facts in rejecting books of accounts without any basis or material and without dealing with judgments cited by assessee ? 6. Whether on facts and in circumstances of case Appellate Tribunal was justified in law in holding that personal investment of managing partner is income of assessee especially in view of Apex Court judgment reported in 218 ITR 239 in case of Income Tax Officer v. Ch. Atchaiah ? 7. Whether on facts and in circumstances of case Tribunal was justified in law and on facts in estimating turnover at six times of declared turnover more so when ITA Nos.246/2013 & connected cases ::12:: books of accounts maintained by assessee during relevant year were not discredited and further there was no material on record to justify such arbitrary estimation ? 2. On facts, we have to notice that assessee was jewelry carried on in partnership, whose business premises and residences of partners were subjected to search under Section 132 on 09.04.2008. It was noticed that assessee had not kept any accounts for period from 01.04.2008 to 09.04.2008. Huge stock of silver and gold ornaments not disclosed in books of accounts were also found. documents recovered showed consistent practice of sale of ornaments by estimate slips, with books of accounts reflecting only 10% of actual sales. assessee disclosed Gross Profit in range of 36.55% to ITA Nos.246/2013 & connected cases ::13:: 48.08%; which Assessing Officer found was to legitimise profit realised on unaccounted sales. Assessing Officer also held that GP would be only at 20% in line of business. There were additions made on that basis estimating turnover at ten times from that seen from books of accounts of relevant years, applying GP at 20%. 3. In first appeal, for first time, assessee raised contention with respect to search being invalid specifically claiming that panchas were absent during search and recording of statement under Section 132(4). ground of limitation was also urged based on period of 21 months provided under Section 153B of Act. Both these grounds were negatived by First Appellate Authority, first one on ground of First Appellate Authority not being competent to look into validity of search and ITA Nos.246/2013 & connected cases ::14:: second one on ground of order having been dispatched on last day. With respect to additions, First Appellate Authority reduced it to five times of turnover returned for each year. assessee and Department were in appeal. Tribunal interfered with First Appellate Authority's order insofar as modifying addition to six times returned turnover. Tribunal found that appellate authorities could examine validity of search, but on facts refused to accept contention of assessee. Department appeals were hence allowed partly and assessee's appeals were rejected. assessee is before us challenging order of Tribunal on questions of law herein above extracted. 4. Sri. Ramesh Cherian John at outset points out that Appellate Authorities being not competent to look into validity of search proceedings as stated in Pooran Mal v. Director of ITA Nos.246/2013 & connected cases ::15:: Inspection [(1974) 93 ITR 505] stands substantially altered after amendment to Finance Act, 1995 by introduction of block assessment and later introduction of Section 153 by Finance Act, 2003. It is contended that validity of search is most important issue insofar as examining sustainability of assessment order passed pursuant to search under Section 132. search has to comply with Section 100 of Criminal Procedure Code; which makes presence of panchas imperative requirement, during entire process of search and when mahazar is acknowledged by persons whose premises are searched. Herein though grounds of absence of panchas were not taken at first instance, appeal is to be considered as continuation of proceedings as is provided under Section 131 and Section 255(6) of Income Tax Act. assessee had also produced affidavits of ITA Nos.246/2013 & connected cases ::16:: panchas specifically stating that they were not present at time of search. First Appellate Authority refused to consider same and so did Tribunal. learned Counsel seeks for remand insofar as examination of panchas are concerned. 5. learned Standing Counsel, Government of India (Taxes), Sri. Jose Joseph seeks to sustain order of Tribunal pointing out that there was sufficient material to reject books of accounts as recovered on search. Reliance is placed on judgment of this Court in ITA No.19 of 2011 dated 10.01.2019 [Commissioner of Income Tax I v.Orma Marble Palace (P)Ltd.] to contend that dishonest dealer cannot be expected to keep evidence revealing dishonesty for prior earlier years which is permissible of being reopened under Section 153A, in pursuance to search under Section 132. fact that number of estimate ITA Nos.246/2013 & connected cases ::17:: slips were recovered in period in which there were no accounts properly maintained by assessee as also recovery of huge undisclosed stock would be sufficient to reject books of accounts of assessee. As to question of limitation, it is pointed out that though not specifically referred to by Tribunal, paper book produced by assessee produced postal- item tracking document which indicate that dispatch was made on 31.12.2010 itself. contention raised on limitation was for reason of dispatch having been made after office hours, which cannot be sustained. On ground of continuation of assessment proceedings in appeal it is specifically pointed out that unless absence of panchas which is specific ground taken up, is raised at first instance before search party at time of acknowledging mahazar or at least before Assessing Authority, ITA Nos.246/2013 & connected cases ::18:: it cannot be taken up later in first appeal. Sri. Jose Joseph does not seriously oppose contention that appellate proceedings are continuation of assessment proceedings. However, such continuation could be inferred only for grounds taken up before Assessing Authority, especially in context of absence of panchas who are independent third parties. decisions relied on by assessee would not be applicable in present case; is argument. assessee having not taken up contention at first stage and having taken up such contention at appellate stage for first time indicates that assessee had, by then, won over panchas. If such contentions are allowed to be taken at later stage in appeals provided under statute, it would lead to chaos and no proceedings could be sustained since individuals retract at their sweet will. additions ITA Nos.246/2013 & connected cases ::19:: according to learned Standing Counsel has been substantially reduced by appellate authority and slightly modified by Tribunal. 6. learned Counsel for assessee also relies on judgment of this Court produced along with paper book in WP(C) No. 34655/2011 dated 25.01.2012. Reliance is also placed on Jose Cyriac v. Commissioner of Income Tax [(2011) 336 ITR 241], Ajit Jain v. Union of India [(2000) 242 ITR 302(Del)]. Pooran Mal(supra) is relied on to urge that even said decision of Hon'ble Supreme Court emphasised mandate insofar as safeguards provided with respect to search to be scrupulously followed, failing which entire proceedings would be vitiated. learned Counsel also would argue on limitation as also estimations made being not reasonable. It is specifically urged that there was absolutely no ITA Nos.246/2013 & connected cases ::20:: material to reject books of accounts of assessee. 7. questions 1 to 3 are on arguments raised, as to invalidity of search on grounds of absence of panchas. We would first look at decision in Pooran Mal (supra) which itself specifically spoke of safeguards insofar as search under Section 132 of Income Tax Act. We extract paragraph 11. We are, therefore, to see what are inbuilt safeguards in Section 132 of Income Tax Act. In first place, it must be noted that power to order search and seizure is vested in highest officers of department. Secondly, exercise of this power can only follow reasonable belief entertained by such officer that any of three conditions mentioned in Section 132(1)(a),(b) and (c) exists. In this connection it may be further pointed out that under sub-rule (2) of Rule 112, Director of Inspection or Commissioner, as case may be, has to record his reasons before authorisation is issued to officers mentioned in sub-section (1). Thirdly, ITA Nos.246/2013 & connected cases ::21:: authorisation for search cannot be in favour of any officer below rank of Income Tax Officer. Fourthly, authorisation is for specific purposes enumerated in (i) to (v) in sub-section (1) all of which are strictly limited to object of search. Fifthly when money, bullion, etc. is seized Income Tax Officer is to make summary enquiry with view to determine how much of what is seized will be retained by him to cover estimated tax liability and how much will have to be returned forthwith. object of enquiry under sub- section (5) is to reduce inconvenience to assessee as much as possible so that within reasonable time what is estimated due to Government may be retained and what should be returned to assessee may be immediately returned to him. Even with regard to books of account and documents seized, their return is guaranteed after reasonable time. In meantime person from whose custody they are seized is permitted to make copies and take extracts. Sixthly, where money, bullion, etc. is seized, it can also be immediately returned to person concerned after he makes appropriate provision for payment of estimated tax dues under sub-section (5) and lastly, and this is most important, provisions of Criminal Procedure Code relating to search and seizure ITA Nos.246/2013 & connected cases ::22:: apply, as far as they may be, to all searches and seizures under Section 132. Rule 112 provides for actual search and seizure being made after observing normal decencies of behaviour. person in charge of premises searched is immediately given copy of list of articles seized. One copy is forwarded to authorising officer. Provision for safe custody of articles after seizure is also made in Rule 112. In our opinion, safeguards are adequate to render provisions of search and seizure as less onerous and restrictive as is possible under circumstances. provisions, therefore, relating to search and seizure in Section 132 and Rule 112 cannot be regarded as violative of Article 19(f) and (g). Hon'ble Supreme Court has held that compliance with provisions of CrPC, with respect to search and seizure is most important safeguard insofar as acceptability of search is concerned. If there is no compliance with most important safeguard, definitely it should fail. 8. Ajith Jain(Supra) is again case in which safeguards were held to be sacrosanct ; ITA Nos.246/2013 & connected cases ::23:: which if not followed vitiate entire proceedings. decision of Delhi High Court has merged with order of Supreme Court which dismissed civil appeal filed against said judgment. Division Bench of this Court also in Jose Cyriac (supra) found that appellate proceedings being continuation of assessment proceedings, validity of search could be urged in any of such appellate proceedings. We have no quarrel with proposition as laid down in cited decisions. But however, contention raised here is with respect to absence of panchas; which we are of firm opinion, should have been raised at first instance. 9. We first look at judgment of learned Single Judge in WP(C) No. 34655/2011, produced along with paper book placed before Tribunal. There, in pursuance to search ITA Nos.246/2013 & connected cases ::24:: conducted under Section 132, assessee had first raised plea of requirement of examination of Department Officer before First Appellate Authority. learned Single Judge found that request of assessee for cross-examining authorised officer of Department is in accordance with provisions of law. We cannot but distinguish decision when claim is of absence of panchas; independent persons called by department to evidence search and preparation of mahazar. This cannot be equated with request made for cross-examination of officer of Department. Jose Cyriac (supra)was case where validity of authorisation issued under Section 132 was first challenged in appeal before High Court. High Court while negativing plea raised for first time under Section 260A of Act, however, held that if it had been raised before Appellate ITA Nos.246/2013 & connected cases ::25:: Authorities, it ought to have have been considered. authorisation issued for conducting search under Section 132 is one sourced to Department and chances of it being manipulated, in favour of assessee, are remote. Likewise department official's cross examination could be taken up at any stage as there can be no assumption that officer would be won over to depose in favour of assessee. decisions cited does not at all contemplate, fact situation as arising in this case; of absence of panchas during search proceedings, preparation of mahazar and its acknowledgment, which contention was not taken up at first instance. 10. search itself was conducted on 09.04.2008. assessee is not new dealer and had been carrying on business for long. argument of learned Counsel for assessee before us, is that search proceedings, ITA Nos.246/2013 & connected cases ::26:: preparation of mahazar as also recording of statements under oath, were carried out in presence of Police and without any panchas. After such proceedings were carried out two persons were called from outside and forced to sign mahazar. If that was case, we agree with Counsel that probably, assessee could not have raised objections before search party itself, especially when it is averred that search was in presence of Police. However, that does not preclude assessee from raising contention before Assessing Officer when notice is issued in proceedings under Section 153A. If that had been raised at first instance and cross-examination was not allowed by Assessing Officer, definitely, it could have been considered by any of Appellate Authorities. fact that even then, assessee could have won over panchas would be irrelevant insofar as passage of time having occasioned ITA Nos.246/2013 & connected cases ::27:: only by reason of Assessing Officer having not followed requirement of law, of examining panchas when it was first sought for. Having not raised contention before Assessing Officer we perfectly agree with Standing Counsel that if it is permitted at appellate stage, it could only lead to chaos. 11. assessee could with passage of time, have won over panchas, to make statements retracting their attestation in mahazar; of having witnessed search from its commencement to its conclusion. mahazar which assessee had acknowledged contains signatures of panchas and they had specifically stated that they were present during search, recording of statement, preparation of mahazar and acknowledgment of mahazar. same was relied on by A.O and at that time there was no objection raised to same. We do not think that any of ITA Nos.246/2013 & connected cases ::28:: decisions cited, help assessee, since question is mixed one of facts and law. On facts we find that question of presence of panchas cannot be questioned in appeal, unless it is first raised at least before Assessing Officer. 12. We also notice that MD Overseas Ltd. dealt with only change in procedure after introduction of Section 153A. sanctity of search and safeguards being sacrosanct remained same before and after amendment. We do not think decision in any way aids assessee's case. non-presence of panchas raised for first time before First appellate authority after period of three years from search conducted, cannot at all be countenanced. There was no valid ground for Tribunal to cancel assessment in light of order of co-ordinate Bench which Tribunal has specifically referred to and found to be distinguishable. decision of ITA Nos.246/2013 & connected cases ::29:: Tribunal was in case of ACIT v. George Philip Modayil (ITA No.389(Coch)/98 & others)which Tribunal noticed was case in which at first stage itself plea of absence of panchas was raised. questions numbered as 1 to 3 are answered in favour of revenue and against assessee. 13. next question is on limitation. Admittedly, order was dispatched on 31.12.2010 which was last date of limitation under Section 153B. only contention taken up is that order was dispatched after office hours. requirement as noticed by Tribunal from judgment of this Court in Cochin Plantations Ltd. v. State of Kerala. (1997) 227 ITR 38 is to ensure that by last day of limitation, order is beyond control of authority concerned; ensuring that no changes or modifications are made after expiry of limitation period. Hence if ITA Nos.246/2013 & connected cases ::30:: conscientious officer passed order on last day of limitation and dispatched it after office hours, it cannot be said to be factor vitiating order or enabling limitation period to be applied to find bar for issuing said order. question of law raised at 4 is hence answered against assessee and in favour of revenue; on clear facts coming out here. 14. estimation made is challenged by question Nos.5 and 7 alleging that there is absolutely no material to reject books of accounts and estimation made at six times of turnover by Tribunal, is without any basis. On question of rejection of accounts as already noticed by us, on search, there was found excess stock of gold of 2032 gms of gold and 7901 gms of silver ornaments. This was not recorded in books of accounts. It was also found that between period 01.04.2008 to 09.04.2008 there was no ITA Nos.246/2013 & connected cases ::31:: proper maintenance of accounts, obviously to manipulate accounts and record sales far lower to that actually occasioned. pre-search enquiry had revealed sale of 2.02 gms of gold locket on basis of estimate slip which did not find place in accounts of assessee. Further, search revealed estimate slips issued for period of 15 days which totalled sale of 175.174 gms; whereas sale accounted for said 15 days was only 17 gms. This is basis on which Assessing Officer rejected accounts and estimated turnover. materials as revealed in search in our opinion, was sufficient to reject books of accounts of assessee. 15. On question of estimation we have to notice that Assessing Officer had found that assessee disclosed Gross Profit of 36.55% to 48.08% in its accounts. In fact, when estimating turnover, assessee could have ITA Nos.246/2013 & connected cases ::32:: adopted Gross Profit as disclosed in books of accounts. However, reasonable computation was made considering Gross Profit available in that line of business and far lower gross profit of 20% was adopted for all years. estimation was made at ten times returned turnover, finding that only 10% of sales are accounted. addition of ten times turnover was reduced by First Appellate Authority to five times. Tribunal modified it slightly to make it six times. There is absolutely no question of law arising from estimation and we decline to answer question raised as 5 and 6 being on facts and not on law. We also do not find any perversity in determination of facts by Tribunal. 16. last question is on personal investment of Managing Partner. Tribunal's order indicates that assessee had contention before Tribunal that undisclosed stock ITA Nos.246/2013 & connected cases ::33:: recovered was belonging to one of Partners. Tribunal rightly refused to accept such contention. There was no separate business carried on by Partner and business premises which was searched was that of firm. At time of search, Partner was present in premises and he had cooperated with search proceedings. Taking all these circumstances into account, Tribunal had rejected contention of personal investment of Managing Partner having been included in stock determined in name of assessee. We find again that there is no question of law arising from aforesaid facts. However, we notice submission of learned Counsel for assessee Sri. Ramesh Cherian John that there was addition made with respect to property transactions in personal name of Managing Partner one G.Venkatesh. That was not issue which was raised or argued before ITA Nos.246/2013 & connected cases ::34:: Tribunal. learned Standing Counsel Sri.Jose Joseph also points out that there was no separate addition made on that count and addition made is only on turnover at ten times, reduced later to six times, with gross profit @ of 20%. We also find that such ground was not taken up before any of appellate authorities. Hence we do not think that such ground can be raised at stage of appeal under Section 260A. We hence reject all appeals, without any order as to costs. Sd/- K.VINOD CHANDRAN Judge Sd/- ASHOK MENON Judge jma ITA Nos.246/2013 & connected cases ::35:: APPENDIX OF ITA 246/2013 PETITIONER'S/S EXHIBITS: ANNEXURE-A TRUE COPY OF NOTICE UNDER SECTION 142(1) DATED 24/09/2010 ISSUED BY DEPUTY COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE, KOTTAYAM. ANNEXURE-B TRUE COPY OF REPLY DATED 13/10/2010 TO DEPUTY COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE, KOTTAYAM. ANNEXURE-C TRUE COPY OF ORDER DATED 31/12/2010 ISSUED TO DEPUTY COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE, KOTTAYAM. ANNEXURE-D TRUE COPY OF FORM OF APPEAL, STATEMENT OF FACTS AND GROUNDS OF APPEAL FILED BEFORE COMMISSIONER OF INCOME TAX (APPEALS), COCHIN. ANNEXURE-E TRUE COPY OF SUMMARY OF ARGUMENTS FILED BEFORE COMMISSIONER OF INCOME TAX (APPEALS). ANNEXURE-F TRUE COPY OF REPRESENTATION DATED 09/04/2012 FILED BEFORE COMMISSIONER OF INCOME TAX (APPEALS) KOCHI. ANNEXURE-G TRUE COPY OF ORDER OF COMMISSIONER OF INCOME TAX (APPEALS) III, COCHIN, DATED 12/10/2012. ANNEXURE-H TRUE COPY OF FORM OF APPEAL AND GROUNDS OF APPEAL DATED 20/11/2012 FILED BEFORE INCOME TAX APPELLATE TRIBUNAL. ITA Nos.246/2013 & connected cases ::36:: ANNEXURE-I TRUE COPY OF ARGUMENT NOTE FILED BEFORE INCOME TAX APPELLATE TRIBUNAL. ANNEXURE-J TRUE COPY OF INPUGNED ORDER DATED 24/05/2013 OF INCOME TAX APPELLATE TRIBUNAL, COCHIN. ANNEXURE-K TRUE COPY OF NOTICE DATED 21/01/2013 ISSUED BY DEPUTY COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE, KOTTAYAM. ANNEXURE-L TRUE COPY OF ORDER OF STAY DATED 01/03/2013 GRANTED BY INCOME TAX APPELLATE TRIBUNAL, COCHIN BENCH, COCHIN. ANNEXURE-M TRUE COPY OF CHALLAN DATED 11/03/2013. ANNEXURE-N TRUE COPY OF CHALLAN DATED 11/03/2013. ANNEXURE-O TRUE COPY OF AUDITED STATEMENT FOR FINANCIAL YEAR 2008-09. ITA Nos.246/2013 & connected cases ::37:: APPENDIX OF ITA 5/2014 PETITIONER'S/S EXHIBITS: ANNEXURE-A TRUE COPY OF NOTICE UNDER SECTION 142(1) DATED 24/09/2010 ISSUED BY DEPUTY COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE, KOTTAYAM. ANNEXURE-B TRUE COPY OF REPLY DATED 13/10/2010 TO DEPUTY COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE, KOTTAYAM. ANNEXURE-C TRUE COPY OF ORDER DATED 31/12/2010 ISSUED BY DEPUTY COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE, KOTTAYAM. ANNEXURE-D TRUE COPY OF FORM OF APPEAL, STATEMENT OF ACTS AND GROUNDS OF APPEAL FILED BEFORE COMMISSIONER OF INCOME TAX (APPEALS), COCHIN. ANNEXURE-E TRUE COPY OF SUMMARY OF ARGUMENTS FILED BEFORE COMMISSIONER OF INCOME TAX (APPEALS) WITHOUT ANNEXURES. ANNEXURE-F TRUE COPY OF REPRESENTATION DATED 09/04/2012 FILED BEFORE COMMISSIONER OF INCOME TAX (APPEALS), KOCHI. ANNEXURE-G TRUE COPY OF ORDER OF COMMISSIONER OF INCOME TAX (APPEALS) III, COCHIN DATED 12/10/2012. ANNEXURE-H TRUE COPY OF FORM OF APPEAL AND GROUNDS OF APPEAL DATED 20/11/2012 FILED BEFORE INCOME TAX APPELLATE TRIBUNAL. ANNEXURE-I TRUE COPY OF ARGUMENT NOTE FILED BEFORE INCOME TAX APPELLATE TRIBUNAL WITHOUT ANNEXURES. ITA Nos.246/2013 & connected cases ::38:: ANNEXURE-J TRUE COPY OF IMPUGNED ORDER DATED 24/05/2013 OF INCOME TAX APPELLATE TRIBUNAL, COCHIN. ANNEXURE-K TRUE COPY OF NOTICE DATED 21/01/2013 ISSUED BY DEPUTY COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE, KOTTAYAM. ANNEXURE-L TRUE COPY OF ORDER OF STAY DATED 01/03/2013 GRANTED BY INCOME TAX APPELLATE TRIBUNAL, COCHIN BENCH, COCHIN. ANNEXURE-M TRUE COPY OF CHALLAN DATED 11/03/2013. ANNEXURE-N TRUE COPY OF CHALLAN DATED 11/03/2013. ANNEXURE-O TRUE COPY OF AUDITED STATEMENT FOR FINANCIAL YEAR 2008-09. ITA Nos.246/2013 & connected cases ::39:: APPENDIX OF ITA 280/2013 PETITIONER'S/S EXHIBITS: ANNEXURE-A TRUE COPY OF NOTICE UNDER SECTION 142(1) DATED 24/09/2010 ISSUED BY DEPUTY COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE, KOTTAYAM. ANNEXURE-B TRUE COPY OF REPLY DATED 13/10/2010 TO DEPUTY COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE, KOTTAYAM. ANNEXURE-C TRUE COPY OF ORDER DATED 31/12/2010 ISSUED BY DEPUTY COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE, KOTTAYAM. ANNEXURE-D TRUE COPY OF FORM OF APPEAL, STATEMENT OF ACTS AND GROUNDS OF APPEAL FILED BEFORE COMMISSIONER OF INCOME TAX (APPEALS), COCHIN. ANNEXURE-E TRUE COPY OF SUMMARY OF ARGUMENTS FILED BEFORE COMMISSIONER OF INCOME TAX (APPEALS). ANNEXURE-F TRUE COPY OF REPRESENTATION DATED 09/04/2012 FILED BEFORE COMMISSIONER OF INCOME TAX (APPEALS), KOCHI. ANNEXURE-G TRUE COPY OF ORDER OF COMMISSIONER OF INCOME TAX (APPEALS) III, COCHIN DATED 12/10/2012. ANNEXURE-H TRUE COPY OF FORM OF APPEAL AND GROUNDS OF APPEAL DATED 20/11/2012 FILED BEFORE INCOME TAX APPELLATE TRIBUNAL. ANNEXURE-I TRUE COPY OF ARGUMENT NOTE FILED BEFORE INCOME TAX APPELLATE TRIBUNAL. ITA Nos.246/2013 & connected cases ::40:: ANNEXURE-J TRUE COPY OF IMPUGNED ORDER DATED 24/05/2013 OF INCOME TAX APPELLATE TRIBUNAL, COCHIN. ANNEXURE-K TRUE COPY OF NOTICE DATED 21/01/2013 ISSUED BY DEPUTY COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE, KOTTAYAM. ANNEXURE-L TRUE COPY OF ORDER OF STAY DATED 01/03/2013 GRANTED BY INCOME TAX APPELLATE TRIBUNAL, COCHIN BENCH, COCHIN. ANNEXURE-M TRUE COPY OF CHALLAN DATED 11/03/2013. ANNEXURE-N TRUE COPY OF CHALLAN DATED 11/03/2013. ANNEXURE-O TRUE COPY OF AUDITED STATEMENT FOR FINANCIAL YEAR 2008-09. ITA Nos.246/2013 & connected cases ::41:: APPENDIX OF ITA 283/2013 PETITIONER'S/S EXHIBITS: ANNEXURE-A TRUE COPY OF NOTICE UNDER SECTION 142(1) DATED 24/09/2010 ISSUED BY DEPUTY COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE, KOTTAYAM. ANNEXURE-B TRUE COPY OF REPLY DATED 13/10/2010 TO DEPUTY COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE, KOTTAYAM. ANNEXURE-C TRUE COPY OF ORDER DATED 31/12/2010 ISSUED BY DEPUTY COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE, KOTTAYAM. ANNEXURE-D TRUE COPY OF FORM OF APPEAL, STATEMENT OF ACTS AND GROUNDS OF APPEAL FILED BEFORE COMMISSIONER OF INCOME TAX (APPEALS), COCHIN. ANNEXURE-E TRUE COPY OF SUMMARY OF ARGUMENTS FILED BEFORE COMMISSIONER OF INCOME TAX (APPEALS). ANNEXURE-F TRUE COPY OF REPRESENTATION DATED 09/04/2012 FILED BEFORE COMMISSIONER OF INCOME TAX (APPEALS), KOCHI. ANNEXURE-G TRUE COPY OF ORDER OF COMMISSIONER OF INCOME TAX (APPEALS) III, COCHIN DATED 12/10/2012. ANNEXURE-H TRUE COPY OF FORM OF APPEAL AND GROUNDS OF APPEAL DATED 20/11/2012 FILED BEFORE INCOME TAX APPELLATE TRIBUNAL. ANNEXURE-I TRUE COPY OF ARGUMENT NOTE FILED BEFORE INCOME TAX APPELLATE TRIBUNAL. ITA Nos.246/2013 & connected cases ::42:: ANNEXURE-J TRUE COPY OF IMPUGNED ORDER DATED 24/05/2013 OF INCOME TAX APPELLATE TRIBUNAL, COCHIN. ANNEXURE-K TRUE COPY OF NOTICE DATED 21/01/2013 ISSUED BY DEPUTY COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE, KOTTAYAM. ANNEXURE-L TRUE COPY OF ORDER OF STAY DATED 01/03/2013 GRANTED BY INCOME TAX APPELLATE TRIBUNAL, COCHIN BENCH, COCHIN. ANNEXURE-M TRUE COPY OF CHALLAN DATED 11/03/2013. ANNEXURE-N TRUE COPY OF CHALLAN DATED 11/03/2013. ANNEXURE-O TRUE COPY OF AUDITED STATEMENT FOR FINANCIAL YEAR 2008-09. ITA Nos.246/2013 & connected cases ::43:: APPENDIX OF ITA 289/2013 PETITIONER'S/S EXHIBITS: ANNEXURE-A TRUE COPY OF NOTICE UNDER SECTION 142(1) DATED 24/09/2010 ISSUED BY DEPUTY COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE, KOTTAYAM. ANNEXURE-B TRUE COPY OF REPLY DATED 13/10/2010 TO DEPUTY COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE, KOTTAYAM. ANNEXURE-C TRUE COPY OF ORDER DATED 31/12/2010 ISSUED BY DEPUTY COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE, KOTTAYAM. ANNEXURE-D TRUE COPY OF FORM OF APPEAL, STATEMENT OF ACTS AND GROUNDS OF APPEAL FILED BEFORE COMMISSIONER OF INCOME TAX (APPEALS), COCHIN. ANNEXURE-E TRUE COPY OF SUMMARY OF ARGUMENTS FILED BEFORE COMMISSIONER OF INCOME TAX (APPEALS) ADOPTING ARGUMENTS FOR CURRENT YEAR 2004-05. ANNEXURE-F TRUE COPY OF REPRESENTATION DATED 09/04/2012 FILED BEFORE COMMISSIONER OF INCOME TAX (APPEALS), KOCHI WITHOUT ANNEXURES. ANNEXURE-G TRUE COPY OF ORDER OF COMMISSIONER OF INCOME TAX (APPEALS) III, COCHIN DATED 12/10/2012 WITHOUT ANNEXURES. ANNEXURE-H TRUE COPY OF FORM OF APPEAL AND GROUNDS OF APPEAL DATED 20/11/2012 FILED BEFORE INCOME TAX APPELLATE TRIBUNAL. ITA Nos.246/2013 & connected cases ::44:: ANNEXURE-I TRUE COPY OF ARGUMENT NOTE FILED BEFORE INCOME TAX APPELLATE TRIBUNAL. ANNEXURE-J TRUE COPY OF IMPUGNED ORDER DATED 24/05/2013 OF INCOME TAX APPELLATE TRIBUNAL, COCHIN. ANNEXURE-K TRUE COPY OF NOTICE DATED 21/01/2013 ISSUED BY DEPUTY COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE, KOTTAYAM. ANNEXURE-L TRUE COPY OF ORDER OF STAY DATED 01/03/2013 GRANTED BY INCOME TAX APPELLATE TRIBUNAL, COCHIN BENCH, COCHIN. ANNEXURE-M TRUE COPY OF CHALLAN DATED 11/03/2013. ANNEXURE-N TRUE COPY OF CHALLAN DATED 11/03/2013. ANNEXURE-O TRUE COPY OF AUDITED STATEMENT FOR FINANCIAL YEAR 2008-09. ITA Nos.246/2013 & connected cases ::45:: APPENDIX OF ITA 293/2013 PETITIONER'S/S EXHIBITS: ANNEXURE-A TRUE COPY OF NOTICE UNDER SECTION 142(1) DATED 24/09/2010 ISSUED BY DEPUTY COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE, KOTTAYAM. ANNEXURE-B TRUE COPY OF REPLY DATED 13/10/2010 TO DEPUTY COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE, KOTTAYAM. ANNEXURE-C TRUE COPY OF ORDER DATED 31/12/2010 ISSUED BY DEPUTY COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE, KOTTAYAM. ANNEXURE-D TRUE COPY OF FORM OF APPEAL, STATEMENT OF ACTS AND GROUNDS OF APPEAL FILED BEFORE COMMISSIONER OF INCOME TAX (APPEALS), COCHIN. ANNEXURE-E TRUE COPY OF SUMMARY OF ARGUMENTS FILED BEFORE COMMISSIONER OF INCOME TAX (APPEALS) ADOPTING ARGUMENT FOR YEAR 2008-09. ANNEXURE-F TRUE COPY OF REPRESENTATION DATED 09/04/2012 FILED BEFORE COMMISSIONER OF INCOME TAX (APPEALS), KOCHI WITHOUT ANNEXURES. ANNEXURE-G TRUE COPY OF ORDER OF COMMISSIONER OF INCOME TAX (APPEALS) III, COCHIN DATED 12/10/2012. ANNEXURE-H TRUE COPY OF FORM OF APPEAL AND GROUNDS OF APPEAL DATED 20/11/2012 FILED BEFORE INCOME TAX APPELLATE TRIBUNAL. ANNEXURE-I TRUE COPY OF ARGUMENT NOTE FILED BEFORE INCOME TAX APPELLATE ITA Nos.246/2013 & connected cases ::46:: TRIBUNAL. ANNEXURE-J TRUE COPY OF IMPUGNED ORDER DATED 24/05/2013 OF INCOME TAX APPELLATE TRIBUNAL, COCHIN. ANNEXURE-K TRUE COPY OF NOTICE DATED 21/01/2013 ISSUED BY DEPUTY COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE, KOTTAYAM. ANNEXURE-L TRUE COPY OF ORDER OF STAY DATED 01/03/2013 GRANTED BY INCOME TAX APPELLATE TRIBUNAL, COCHIN BENCH, COCHIN. ANNEXURE-M TRUE COPY OF CHALLAN DATED 11/03/2013. ANNEXURE-N TRUE COPY OF CHALLAN DATED 11/03/2013. ANNEXURE-O TRUE COPY OF AUDITED STATEMENT FOR FINANCIAL YEAR 2008-09. ITA Nos.246/2013 & connected cases ::47:: APPENDIX OF ITA 312/2013 PETITIONER'S/S EXHIBITS: ANNEXURE-A TRUE COPY OF NOTICE UNDER SECTION 142(1) DATED 24/09/2010 ISSUED BY DEPUTY COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE, KOTTAYAM. ANNEXURE-B TRUE COPY OF REPLY DATED 13/10/2010 TO DEPUTY COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE, KOTTAYAM. ANNEXURE-C TRUE COPY OF ORDER DATED 31/12/2010 ISSUED BY DEPUTY COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE, KOTTAYAM ALONG WITH ANNEXURES. ANNEXURE-D TRUE COPY OF FORM OF APPEAL, STATEMENT OF ACTS AND GROUNDS OF APPEAL FILED BEFORE COMMISSIONER OF INCOME TAX (APPEALS), COCHIN. ANNEXURE-E TRUE COPY OF SUMMARY OF ARGUMENTS FILED BEFORE COMMISSIONER OF INCOME TAX (APPEALS). ANNEXURE-F TRUE COPY OF REPRESENTATION DATED 09/04/2012 FILED BEFORE COMMISSIONER OF INCOME TAX (APPEALS), KOCHI. ANNEXURE-G TRUE COPY OF ORDER OF COMMISSIONER OF INCOME TAX (APPEALS) III, COCHIN DATED 12/10/2012. ANNEXURE-H TRUE COPY OF FORM OF APPEAL AND GROUNDS OF APPEAL DATED 20/11/2012 FILED BEFORE INCOME TAX APPELLATE TRIBUNAL. ANNEXURE-I TRUE COPY OF ARGUMENT NOTE FILED BEFORE INCOME TAX APPELLATE ITA Nos.246/2013 & connected cases ::48:: TRIBUNAL. ANNEXURE-J TRUE COPY OF IMPUGNED ORDER DATED 24/05/2013 OF INCOME TAX APPELLATE TRIBUNAL, COCHIN. ANNEXURE-K TRUE COPY OF NOTICE DATED 21/01/2013 ISSUED BY DEPUTY COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE, KOTTAYAM. ANNEXURE-L TRUE COPY OF ORDER OF STAY DATED 01/03/2013 GRANTED BY INCOME TAX APPELLATE TRIBUNAL, COCHIN BENCH, COCHIN. ANNEXURE-M TRUE COPY OF CHALLAN DATED 11/03/2013. ANNEXURE-N TRUE COPY OF CHALLAN DATED 11/03/2013. ANNEXURE-O TRUE COPY OF AUDITED STATEMENT FOR FINANCIAL YEAR 2008-09. Rajan Jewellary v. Commissioner of Income-tax Central Circle, Cochin