TaxTMI 
TaxTMI 
2016 (1) TMI 350
X X X X Extracts X X X X
X X X X Extracts X X X X
....order dated 26.12.2011 for assessment year 2004-05. 2. The issue raised by assessee in his appeal is that Ld. CIT(A) has confirmed the order of Assessing Officer by sustaining the disallowance of Rs. 12,47,860/- on account of foreign travel having no nexus with the business of assessee. 3. Briefly stated facts are that assessee is a private limited company and is in the business of transportation and co-ordination of coal. On 13-01-2010 there was a search operation conducted in the business premises of assessee u/s 132 of the Act. In pursuant to search Assessing Officer issued notices u/s. 153A/153(2)/142(1) of the Act upon assessee. The assessee was called upon to submit various details on different dates, however no substantial details ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....poyer's contribution to PF as per TAR & that as per P&L account. 5. As per 21(B) of TAR Service tax, education cess etc., collected, were not routed through P&L account. Details of payment of such duties were also not provided. This is highly irregular. 6. In order to verify credit of TDs claimed vis-à-vis income disclosed, the assessee was asked to submit following details:- Details of TDS certificates for each deducting authority in the following manner (with all cloumn totals) for each year: Names of the deductors Total TDS deducted Total receipts as per TDS certificate Corresponding receipts as per accounts Reason for difference, if any However, such details were not provided. 7. Details of foreign tra....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ial relating to that issue is found at the time of search. The Ld. AR in support of his contention made the reference to the order of this Tribunal in the case of LMJ International Ltd. v. DCIT (2008) 119 TTJ (Kol) 214 and the decision of the Hon'ble Delhi Tribunal in the case of Anil Kumar Bhatia & others & ACIT (2010)1 ITR(Trib.) 484 (Del). However the Ld CIT(A) has disregarded the claim of the assessee by observing that the decision in the case of Anil Kumar Bhatia & others & ACIT (supra) has been reversed by the Hon'ble'Delhi High Court. Therefore on the basis of above Ld. CIT(A) has confirmed the action of AO. Aggrieved, now assessee is in second appeal before us on the following grounds:- "1. The orders passed by the lower authoriti....
X X X X Extracts X X X X
X X X X Extracts X X X X
....the learned CIT(A) erred in upholding the validity of the assessment made u/s. 144/153 of the Act, in spite of the fact that the A.O had not issued the statutory notice calling upon the appellant assessee to show cause why the assessment should not be completed to the best of his judgment. 3(a). On the facts and in the circumstances of the case, the learned CIT(A) failed to appreciate that the issue of examination of Foreign Travel expenses had been closed during the time of the original assessment u/s. 143(3) of the Act and that since no incriminating material on this issue had been found during the search, the mater could not be re-examined at the stage of the fresh assessment u/s. 144/153A. 3(b). On the facts and in the circumstanc....
X X X X Extracts X X X X
X X X X Extracts X X X X
....in course of fresh assessment u/s. 144/153A of the Act. So until and unless no incriminating material is found in the course of search to suggest that expense are bogus or not for the purpose of assessee's business, assessment proceedings can not be reopened. Ld. AR also submitted that assessment u/s. 153A of the Act is not made to unsettle income shown in regular returns in respect of which the assessment is completed. In support of assessee's claim, Ld. AR has mentioned the following citation:- * ITAT (Kol) in LMJ International Ltd. v. DCIT [2008] 119 TTJ 214 * CIT v. Smt. Shaila Agarwal 346 ITR 130 (All) * Jai Steel (India) v. ACIT 259 CTR 281 (Raj) * CIT v. Kabul Chawla (order enclosed at pages 7-32) * Mumbai ITAT Special Benc....
X X X X Extracts X X X X
X X X X Extracts X X X X
....39;ble Delhi High Court judgment in the case of Kabul Chawla ITA. Nos. 707, 709 and 713 of 2014. "vii. Completed assessments can be interfered with by the AO while making the assessment under Section 153A only on the basis of some incriminating material unearthed during the course of search or requisition of documents or undisclosed income or property discovered in the course of search which were not produced or not already disclosed or made known in the curse of original assessment." We are also referring a case of Continental warehousing corporation ITA no. 523 of 2013 and 1969 of 2013 wherein the Hon'ble Bobmay High Court has held as under : "However, though the second proviso to sub-section (1) of section 153A would not apply in th....