TaxTMI 
TaxTMI 
2013 (10) TMI 764
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....0/- in respect of Shree Ganesh Estate) out of the total addition of Rs.95,50,548/- made by the Assessing officer in respect of disallowance of commission by admitting additional evidence in contravention of rule 46A of Income Tax Rules, 1962. 3. On the facts and in the circumstances of the case, the Ld CIT(A) has erred in law as well as in facts in deleting the disallowance of interest of Rs.23,37,215/-made by the assessing officer as the advances given by the assessee was utilized for non-business purpose by admitting additional evidence in contravention of rule 46A of Income Tax Rules, 1962 even though the assessee did not furnish information to the assessing officer during the course of assessment proceedings. 4. On the facts and in the circumstances of the case, the Ld CIT(A) has erred in law as well as in facts in deleting the addition of Rs.54,51,00,877/- made by the Assessing officer u/s 68 of I.T. Act, 1961 in respect of unexplained share capital, share premium, share application money, unsecured loans and sundry creditors. 5. On the facts and in the circumstances of the case, the Ld CIT(A) has erred in holding that the assess....
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.... after the change of opinion? 2. That on the facts and circumstance of the case, the Ld. CIT(A)-XXXI erred in confirming the addition of Rs.5,99,130/- being the amount of out of books commission paid by the assessee company u/ s 69C of the Income Tax Act, 1961. 3. The assessee craves for the addition, modification and deletion of the grounds of appeal." 2. A search and seizure operation was carried out u/s 132 of the Incometax Act, 1961 along with other group cases on 31.07.2008. The search was also carried out at the residence of the Director, Shri Rakesh Kumar Garg where certain documents relating to the assessee were found and seized. 3. Ground Nos.1, 6 & 7 of revenue's appeal (ITA No.1694/Del/2012), ground no.3 of cross objection and ground no.3 of assessee's appeal (ITA No.2092/Del/2012) are general in nature and do not require any adjudication, hence the same are dismissed. 4. First of all, we will consider the issue raised in assessee's appeal in the ground no.1. The issue involved in this ground is upholding the assessment framed by the Assessing Officer. The assessee's contention is that the assessment was framed on the basis of out....
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....enue has also taken a ground against admitting additional evidence in contravention of Rule 46A of Income-tax Rules, 1962. The assessee has also taken ground no.1 in its cross objection for stating that no fresh evidences were filed before CIT (A) and all material was available to Assessing Officer in search material. The revenue's plea that CIT (A) has admitted any additional evidence in contravention of Rule 46A while assessee objected it on the ground that all seized material was available to Assessing Officer. On this issue, we find that the evidences relied upon by the CIT (A) were also available in seized material which was in the possession of the Assessing Officer. Thus, there was no fresh evidence filed before the CIT (A) which could be considered for violation of Rule 46A of Income-tax Rules. Further we also hold that Assessing Officer has not appreciated the seized material under his possession, rather ignored the seized material which was under his possession. The Assessing Officer has also not raised any query on these issues. Therefore, in our considered view, there was no contravention of Rule 46A of the Income-tax Rules, 1962. This plea of revenue stands dismissed. ....
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....f Rs.28,050 of Shree Ganesh Estate has been found to be unwarranted as reflected in the books of account, thus deleted. In relation to commission of Rs.58,85,444/- of M/s Omway Builders Pvt. Ltd it was submitted that same has been settled in the subsequent year for Rs.27,55,688 as per annexure A- 2/6 of party A-1 at serial no.6 of page no.3 of the Assessment order 2008- 09 and an amount of Rs.22,65,146 has been booked and paid by the appellant in his books of account of F.Y 2007-2008 relevant to A.Y 2008- 2009 and Rs.2,92,500 was outstanding as per the same seized document supra, therefore, on comprehension of the submission of the AR, an addition of Rs.1,98,042 (Rs.27,55,688 - Rs.22,65,146 - Rs.2,92,500) if any out of Rs.58,85,444/- shall be considered in the order of A.Y. 2008-09. The ground raised by the appellant is thus partly allowed." 7.1 The similar issue was also involved in Assessment Year 2006-07 where also both the sides were in appeal. The relevant para of the order for Assessment Year 2006-07 dated 31.12.2012 is as under :- "13. We have heard both the sides on the issue. These bills were raised by brokers were found during the search operation at th....
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....ncome-tax Act, 1961. There is no evidence gathered by revenue from anywhere, which could establish a bit of the fact that assessee has paid anything more than whatever recorded in the books of account. Therefore, in our considered view, such addition cannot be sustained. 13.1 The revenue has also raised the issue of admitting additional evidence in contravention of Rule 46A of the Incometax Rules. Our notice was brought to the relevant copies of the ledger account showing payments to various parties on which TDS was deducted. The confirmation of the account was also filed along with ledger account. These evidences were part of the assessment record and in our considered view, nothing new has been brought into notice of CIT(A). Therefore, there was no violation of Rule 46A of Income-tax Rules, 1962. These documents were filed before the Assessing Officer and this was not filed for the first time before the CIT (A). Therefore, the revenue's contention is not tenable. 13.2 We dismiss this ground of revenue's appeal and allow the assessee's ground of appeal." 7.2 We have considered rival submissions. We have also perused the order made by authorities ....
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.... for details. There is no new evidence or incriminating document found and seized during the search operation which can make the Assessing Officer to form a belief that income has escaped assessment on this account. In such circumstances, in absence of any evidence of any sort, such disallowances shall be only on the basis of change in the opinion and the same is not permissible in law. Further, on merits also, the assessee was having sufficient and adequate non-interest bearing funds by way of share capital, reserves and advances received from the booking of the plots. The revenue has failed to establish any nexus between the borrowed funds and interest free advances given to sister concerns. In such circumstances, we find there was no infirmity in the order of CIT (A) and we sustain the same on this issue." Being no change in the facts of the case, we dismiss this ground of revenue's appeal, we also allow the plea of the assessee that there was no contravention of Rule 46A of Income-tax Rules, 1962. 10. In the ground nos.4 & 5 of revenue's appeal, the issue is against the deletion of addition of Rs.54,51,00,877/- made by Assessing Officer u/s 68 of Income-tax Act, 1961 and ....
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....f accounts and no addition has been made. The ld. AR submitted that the Assessing Officer raised questionnaires which have been duly replied by the assessee. Subsequently, queries raised by the Assessing Officer were also replied to the satisfaction of the Assessing Officer. The Assessing Officer has not found any fault in these details. The Assessing Officer has conveniently ignored the details submitted before him during the assessment proceedings u/s 153A and made a huge addition without any basis. He further submitted that CIT (A) has quashed the order made u/s 144 in assessee's appeal no.170/09-10 and 133/10 and the revenue has not filed any appeal against that order. The Assessing Officer has not raised any further query during the assessment proceedings. All the parties were assessed by the same Assessing Officer. All the details were available before him. No additional evidences were filed before the CIT (A). No fresh material filed before the CIT (A). In such circumstances, the CIT (A) has rightly deleted the addition and he pleaded to sustain the same. 13. We have heard both the sides on this issue. The facts of the case show that search and seizure operation was carri....
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.... cannot be made basis of subsequent assessment by the AO, CC-12, I am unable to understand why the A.O. of CC-12 preferred to borrow the addition u/s 144 for Rs.54,51,00,877/- when he was seized of the matter and completing a search assessment under section 153A. The A.O. of CC-12 rather than analyzing the papers submitted before him for the identity, genuineness and creditworthiness retained the additions of previous A.O. which was completed after search and without jurisdiction. Further, while framing the assessment of the group companies appearing as investors and creditors to the appellant company, the A.O. has not given an adverse finding as regard to their identity, creditworthiness and genuineness of the transaction. The same A.O. has assessed these group companies under 153A/153C. Therefore, the additions made by the A.O. while importing addition u/s 144 in the assessment u/s 153A cannot pass muster the judicial scrutiny. The department has used its long arm of search and seizure and there is no justification to retain assessment u/s 144 for want of details. Thus the ground no.4 of appeal no.333/10-11 and ground no.1 of appeal no.170/09-10 of the appellant are allowed." ....