TaxTMI 
TaxTMI 
2017 (10) TMI 996
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....oup' deriving income from manufacture and selling of poultry and cattle feed. The return of income for the Asst Year 2010-11 was filed by the assessee u/s 139(1) of the Act on 9.10.2010 declaring total income of Rs. 5,01,11,522/-. The assessment was completed u/s 143(3) of the Act on 30.12.2011 accepting the income returned. A search u/s 132 of the Act was carried out in the business premises of the assessee at 17B & C, Everest House, 46C, Chowringhee Road, Kolkata - 700071 on 13.12.2012. Panchanamas were drawn in the name of persons including the assessee. The following valuables and documents were found / seized during the course of search Address of the premises where search was conducted Cash Jewellary Identification Mark of the documents seized Found (Rs.) Seized (Rs.) Found (Rs.) Seized (Rs.) 17B & C, Everest House, 46C, Chowringhee Road, Kolkata700071 32,67,500/- 39,00,000 NIL NIL SPG/1 to SPG/13 and SPG/HD/1 Plot no. C-3, WBIIDC Raninagar Industrial Growth Centre, Jalpaiguri7351010 NIL NIL NIL NIL SV/1 to SV/4 and SV/PD/1 Hence as on the date of search, the original assessment proceedings ....
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....he course of search regarding these two items and hence the concluded assessment u/s 143(3) of the Act dated 30.12.2011 cannot be disturbed either by the ld AO or by the ld CIT. The assessee placed reliance on various decisions in this regard including the decision of the Hon'ble Jurisdictional High Court in the case of PCIT vvs Salasar Stock Broking Limited (ITAT No. 264 of 2016) dated 24.8.2016 and CIT vs Veerprabhu Marketing Limited reported in 73 taxmann.com 149 (Calcutta) . It was also specifically pointed out with supporting evidences that the ld AO had duly examined these aspects of deemed dividend and excess claim of depreciation on motor lorries at higher rate during the course of assessment proceedings. It was stated that there was due and proper application of mind of the ld AO before framing the assessment on these two issues among others. Accordingly it was pleaded that the order of the ld AO cannot be termed as erroneous warranting revision u/s 263 of the Act. 4.1. The assessee also explained before the ld CIT that the assessee purchased hatching egges from M/s Shalimar Hatcheries Ltd and sold chicks to the said company. Accordingly it had maintained both sundry cr....
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....ere is assessment year 2010-11. Hence, the assessee would be eligible for depreciation at the rates applicable to that particular year. Now, in the concerned year i.e. FY 2009-10, it was mentioned in the schedule that New commercial vehicle which is acquired on or after the 1st day of January, 2009 but before the 1st day of October, 2009 for the purpose of business or profession would be eligible for depreciation at the rate of 50%, where "Commercial vehicle"means "heavy goods vehicle", "heavy passenger motor vehicle", "light motor vehicle", "medium goods vehicle" and "medium passenger motor vehicle" but does not include "maxi-cab", "motor cab", "tractor" and "road-roller". The expressions "heavy goods vehicle", "heavy passenger motor vehicle", "light motor vehicle", "medium goods vehicle" and "medium passenger motor vehicle" but does not include "maxi-cab", "motor cab", "tractor" and "road-roller" shall have the meanings respectively as assigned to them in Section 2 of the Motor Vehicles Act, 1988 (59 of 1988). (copy of Schedule attached). Thus, from the above cited rules, it is clearly evident that any commercial vehicle purchased by any assessee on or after 01.01.2009 but before....
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....excess of 10%) as evident from the list of shareholding pattern of Ms Shalimar Hatcheries Limited. From the seized document marked as SPG-3 in pages 14 & 15, the ld CIT observed that assessee company has shown liabilities in the name of M/s Shalimar Hatcheries. From the seized document marked as SPG-1 in pages 17 & 18, the ld CIT observed from the trial balance that assessee had shown numerous lorries as part of the assets. The assessee explained before the ld CIT that the ld AO had duly replied in this regard before the ld AO vide letter dated 20.2.2015 as under:- (1) Page No. 1 to 24 of SPG 1 belong to Sona Vets Private Limited contains copy of trial balance for the F.Y. 2012-13 which are as per regular books of accounts and are enclosed herewith. (5) Page No. 11 to 20 of SPG 3 belong to Sona Vets Private Limited contains copy of group summary of Sundry Creditors for F.Y. 2007-08 to 2011-12 which are as per regular books of accounts and are enclosed herewith. The assessee vide separate letter dated 20.2.2015 explained the seized document SHL/02 and its contents page wise in detail before the ld AO. In effect, it was stated that the assessee had duly explained....
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....nging to them. 4.4. The assessee replied before the ld CIT that the seized document marked as SHL -2 Page 8 contains list of shareholders of Shalimar Hatcheries Limited together with number of shares held by each shareholder. In this list, the name fo the assessee also appears as holding 360000 shares of Shalimar Hatcheries Limited and assessee pleaded that such information is already in the public domain and is part of regular books of accounts of the assessee and there is nothing incriminating therein. 4.4.1. The assessee replied before the ld CIT that the seized document marked as SPG-3 pages 14& 15 contains sundry creditors trial balance for the period from 1.4.2009 to 31.3.2010 which are part of regular books of accounts of the assessee and there is nothing incriminating therein. 4.4.2. The assessee replied before the ld CIT that the seized document marked as SPG-1 pages 17& 18 contains trial balance for the period from 1.4.2012 to 31.3.2013 which are part of regular books of accounts of the assessee and there is nothing incriminating therein. 5. The ld CIT however ignored all the explanations and submissions made before him as well as before the ld AO and observed....
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....IT was wrong in exercising the jurisdiction u/s 263 of the I.T. Act. 5. That the petitioner craves leave to add, alter, amend or withdraw any ground/s of appeal before or at the time of hearing. 6. We have heard the rival submissions and perused the materials available on record including the paper books filed by the assessee containing the seized documents and explanations given by the assessee thereon before the ld AO and the ld CIT. It is not in dispute that as on the date of search the original assessment for Asst Year 2010-11 was completed u/s 143(3) of the Act and hence stood unabated. It is now well settled by various high courts including the Hon'ble Jurisdictional High Courts relied upon supra that the concluded assessments could be disturbed only in the event of presence of any incriminating materials found in the course of search. We find from the above explanation of various seized documents found in the course of search, there was absolutely no material much less any incriminating material, so as to disturb the earlier concluded assessment for the Asst Year 2010-11. Hence the ld AO had rightly not considered the aspect of deemed dividend and claim of deprec....