TaxTMI 
TaxTMI 
2014 (12) TMI 971
X X X X Extracts X X X X
X X X X Extracts X X X X
....aw and in facts in passing the order which is illegal and bad in law. The order passed by the learned CIT(A) purportedly on 04.01.2013 after the conclusion of hearing on 11.12.2012, which has been served on 09.03.2013 is illegal. 4) The learned CIT(A) has erred in law and in facts in not holding that the assessment order was in violation of principles of natural justice and was passed without giving a proper opportunity of hearing to the appellant. 5) The learned CIT(A) has erred in law and in facts i) in confirming the disallowance of Rs. 2,50,000/- on account of diminution in value of investment. (ii) in not holding that the disallowance of Rs. 2,50,000/ on account of diminution in value of the investment is bad in law as the addition is not based on the material found during the course of search and that it pertained to non-abated assessment year. 6) The learned CIT(A) has erred in law and in facts i) in confirming the addition of Rs. 54,195/- by invoking the provisions of section 14A of the Act. (ii) in not holding that the addition of Rs. 54,195/- by invoking the provisions of section 14A of the Act is bad in law as the addition is not based on the materia....
X X X X Extracts X X X X
X X X X Extracts X X X X
....g Development Company Vs. DCIT ITA No. 38 of 2014 judgment and order dated 25.07.2014 wherein the Hon'ble High Court has taken a contrary view. 6. We have heard the rival submissions and also perused the relevant material on record and the decisions relied upon by the parties. In this case, return of income was filed on 27.11.2006. The said return of income had attained finality, in other words, the assessment stood completed. A search and seizure action took place on 31.10.2009 and on that date, the assessment for A.Y. 2006-07 did not get abated as it was not pending. It is an undisputed fact, that no material whatsoever was found relating to the routine disallowance as have been raised vide ground nos. 5 to 7. In such a case, whether these disallowances can be made or confirmed sans any incriminating material found during the course of search. It has come to our notice that Hon'ble Jurisdictional High Court (Nagpur Bench) in the case of CIT Vs. M/s. Murali Agro Products Ltd. ITA No. 36 of 2009 judgment and order dated 29.10.2010 have dealt the similar issue, wherein following observation was made. "In the present case, as contended by Shri Mani, learned counsel for the assesse....
X X X X Extracts X X X X
X X X X Extracts X X X X
....he said ground is treated as infructuous. 9. Accordingly, appeal of the assessee is treated as partly allowed. 10. Now we will take up appeal for the A.Y. 2009-10, ITA No. 2201/Mum/2013 wherein following grounds have been raised:- "1. The learned CIT(A) has erred in law and in facts in confirming the additions made by the Assessing Officer in the assessment order passed u/s. 153A r.w.s. 143(3) of the Act which are illegal and bad in law. 2. The order passed by the learned CIT(A) is in violation of principles of natural justice and is passed without giving a proper opportunity of hearing to the appellant. 3. The learned CIT(A) has erred in law and in facts in passing the order which is illegal and bad in law. The order passed by the learned CIT(A) purportedly on 04.01.2013 after the conclusion of hearing on 11.12.2012, which has been served on 09.03.2013 is illegal. 4. The learned CIT(A) has erred in law and in facts in not holding that the assessment order was in violation of principles of natural justice and was passed without giving proper opportunity of hearing to the appellant. 5. The learned CIT(A) has erred in law and in facts in upholding the addition of....
X X X X Extracts X X X X
X X X X Extracts X X X X
....as been incorporated in detail in the assessment year as well as in the appellate order and held that assessee's explanation is false. The Ld.CIT(A) has also confirmed the said purchases after incorporating the detail finding of the AO and also after analyzing the issue at length by himself. The relevant finding of the Ld.CIT(A) is as under:- "The facts of the case, the stand taken by the A.O in the assessment order and the grounds of appeal raised by the appellant have been carefully considered. The basic issue that was investigated into during the search & seizure proceedings and thereafter was whether or not the purchases/expenses debited in the books of accounts of the appellant were genuine. The investigation was not vague but specific with reference to certain alleged suppliers of materials and the amounts involved were very huge i.e. Rs. 27,80,33,410/-. In all, three entities were identified and specific issues were put to the Director of the company Shri Viren Ahuja. It was required that the appellant provided all the requisite information and enabled the department to examine the alleged suppliers of the materials in case a stand were to be taken by the appellant that t....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ld have been carried out immediately. No such attempt was made either immediately after the search & seizure proceedings or during the assessment proceedings. A specific opportunity was also given by the AO by issue of a show cause notice during the assessment proceedings. Further, there is no evidence of coercion or duress that has been established to support the retraction of the appellant." Thereafter, he relied upon the various decision on the proposition that if the assessee has voluntarily accepted the transaction to be not genuine and the amount has been quantified and disclosure has been made u/s 132(4), then retraction by the assessee cannot be accepted, unless there are very strong evidence in support of such retraction. Accordingly he confirmed said addition. 14. Before us, learned counsel Shri Vijay Mehta submitted that, the premises in question was purchased from M/s. Patel Punit Builders Pvt. Ltd and sold to M/s. Core Project Technology Ltd. The sale consideration was received by the assessee on 18.05.2007 and purchase consideration was made on 19.05.2007. Even if the purchase of material for the construction in the said property is treated to be bogus, the same....