TaxTMI 
TaxTMI 
2017 (10) TMI 1237
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.... justified as cash seized was recorded in the books of account. b. Assessee manufactured jewellery at Mumbai and sent to cuttack for retails sale against spot basis, delivery against cash payment. c. As per practice at cuttack office, assessee transfer cash in lump sum to Tijori (Godrej Chest) a/c. d. Assessee removed cash of Rs. 61 from Tijori and give to Mr. Kanharam. All cash is part of assessee books of account. e. The Ld. CIT (A) has not relied on books of account and evidence supported by the appellant. f. The Ld. CIT (A) and AO has erred in ignoring the details of cash submitted by the assessee vide letter dated 06/12/2012. g. On the facts and in circumstances of the case, the said disallowance were unjustified and unwarranted. 4. The assessee prays that the said addition of Rs. 61 Lacs be deleted. GROUND NO. 2 1. The Ld. CIT (A) erred in confirming and treating the gold jewellery of Rs. 18,15,390/- seized at Mumbai airport, as unexplained investment of the assessee under section 69 of the Income Tax Act. 2. He also erred in treating the gold jewellery which is recorded in the books of account as unexplained investment of the assessee. 3. He ....
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....ld shift to the Assessing Officer to prove that it is not true. g. The Income Tax Officer thus has to establish that the entry was not real but was pseudonymous. h. This burden in the present case in appeal, however, has not been discharged by the Assessing Authority before making addition under the Act nor has he established that the entry was not real but was pseudonymous i. The documentary evidence was adequate to establish all the three ingredients required to be established by the assessee under Section 68, namely, the identity and creditworthiness and the genuineness of the loan transactions. j. On the facts and in circumstances of the case, the said disallowance were unjustified and unwarranted. 4. The assessee prays that the said addition of Rs. 30,21,580/- be deleted Ground No.4 1. The assessee prays that the said addition of Rs. 4,89,423/-less: interest on loan of Rs. 15lakh required to be deleted. 2. The ld CIT(A) as a consequence of disallowance of loan has also disallowed interest of Rs. 4,89,423/- less: interest on loan of Rs. 15 lakh. 3. But disallowance of loan made by ld CIT (A) is unsustainable and bad in law. 4. On the facts and in c....
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.... g. Hence, the said addition of Rs. 8,374/- needs to be deleted . GROUND NO. 7 1. The Ld. CIT (A) erred in actually serving the order on 05/01/2011 but he should have served the order to the assessee on or before 31/12/2010 which was the last date of completion of assessment or make such arrangement that order should beyond the limit of him, therefore the order is barred by limitation. 2. Hence, the said order is time barred, therefore, bad in law and void-ab-initio. GROUND NO. 8 1. The Ld. CIT (A) erred in charging interest u/s 234A, 234B and 234C of the IT Act. 2. The assessee prays that levy of said interest be deleted. GROUND NO. 9 1. The Ld. CIT (A) erred in charging interest u/s 271(1)(c) of the income tax act. GROUND NO. 10 1. The assessee craves leave to add further grounds or to amend or alter the existing grounds of appeal. The assessee further by filing separate application has raised following additional ground of appeal. Ground No.11 "The order dated 31.12.2010 passed by the Ld. AO u/s. 143(3) r.w.s. 153A of the Income Tax Act for A.Y.2008- 09 was barred by the period of limitation u/s. 153A(1)(b) of the Income Tax Act, 1961". ....
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.... Ld. AR, of the assessee argued that a search action was conducted on assessee again on 15.05.2007. The six assessment year immediately preceding assessment year relevant to the previous year were assessment year 2007-08 to 2002-03(descending order). The assessment order for assessment year 2008-09 is out of the purview of section 153A of the Income Tax Act. The assessing officer passed the order for assessment year under consideration u/s. 143(3) r.w.s 150A on 13.12.2010. Thus, the order passed by assessing officer is invalid and is liable to declared as such. The Ld. AR of the assessee further argued that additional ground of appeal is purely legal a nature and does not require two bring any further facts of record. All facts related for the disposal of additional ground of appeal emanate from the record itself. The additional ground of appeal goes to the root of the case and should be decided first. It was argued that the revenue cannot take even the benefit of Section 292 B to cure the invalidity of the order. In support of his submissions the ld AR for the assessee relied on the decision of Madras High Court in V. Ramaiah Vs CIT [2013] 37 taxman.com 167( Madras), Punjab and Ha....
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....ideration is out of the preview of scope of section 153A. Since the assessment for the year under consideration was out of the scope of section 153A, thus, the period of limitation prescribed under section 153A(1)(b) has no application for passing the assessment order with a stipulated period as prescribed therein. Hence the order passed by the AO under section 143(3) is within prescribed period of limitation as provided under section 153. The various decision relied by ld AR of the assessee are not applicable on the facts of the grounds of appeal as discussed above, in fact the order passed by AO for the AY under consideration is order under section 143(3) and not under section 153A r.w.s. 143(3) of the Act. Hence, the additional ground of appeal raised by assessee is dismissed. 7. Ground No. 1 & 2 relates to unexplained cash of Rs. 61,00,000/- and unexplained jewellery of Rs. 18,15,390/- seized at Mumbai Airport. The ld. AR of the assessee argued assessee made purchases of jewellery in Mumbai and used to sale in Cuttack in retail sale against spot basis on cash payment, the cash recovered in the said search was accounted money of the assessee. The assessee's 98.82% of purchase a....
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.... Ground No.3 relates to addition on loan of Rs. 30,21,580/- and Ground no. 4 relates to proportionate disallowance of interest on loan for Rs. 4,89,423/-. The ld. AR of the assessee argued that assessee has raised similar ground of appeal before the Tribunal in the appeals for AY 2004-05 to 2007-08 and the Tribunal in its order dated 27.04.2016 remanded the similar ground of appeal to the file of AO. On the other hand, the ld. DR for the Revenue has not disputed the contention of ld. AR of the assessee. 11. We have considered the contention of both the parties and have gone through the order of Tribunal for AY 2004-05 to 2007-08 wherein on similar ground, the Tribunal has restored the matter to the file of AO to pass the order afresh. The relevant portion of order for AY 2007-08 on similar ground is extracted below. ISSUE NO. 1, 2 & 3:- 24. In the said issue the assessee has challenged the addition to the tune of Rs. 21,08,000/- u/s. 69C of the Act. The assessee has taken the loan from 9 persons but failed to produced them before the Assessing Officer therefore the Assessing Officer treated the said amount as unexplained loan and added to the income of the assessee u/s. 68 of....
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....er for Loan given. 8. Copy of letter dated:11/11/2008 written by the lender to the AO in reply to the notice u/s. 133(6) issued to them confirming the transaction with your appellant. 9. Copy of the Bank Statement of the Lender (Saraswat Bank) and that of the appellant (ICICI Bank) duly reflecting a further lending of a amount of Rs. 2.5 lacs on 15.11.2006 by the lender to the appellant. 4 Mitesh C. Jain 1. Copy of the Balance Sheet, Income & Expenditure a/c.and Capital A/c.forA.Y.07-08. 2. Computation of Income for A.Y.07- 08. 3. Income Tax Acknowledgement for A.Y.07-08. 4. Pan card Xerox 5. Ration Card Xerox 6. Xerox copy of the bank passbook of the lender duly reflecting the loan given to the appellant. 7. Confirmation letter for Loan given. 8. Copy of letter dated:11/11/2008 written by the lender to the AO in reply to the notice u/s. 133(6) issued to them confirming the transaction with your appellant. 9. Copy of the Bank Statement of the Lender (Saraswat Bank) and that of the appellant (ICICI Bank) duly reflecting a further lending of a amount of Rs. 80,000/- on 21.11.2006 by the lender to the appellant. 5 Neetu Jain 1. Copy of the Balance Sheet, Income & Expenditure a/c....
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....7-08. 4. Pan card Xerox 5. Ration Card Xerox 6. Xerox copy of the bank passbook of the lender duly reflecting the loan given to the appellant. 7. Confirmation letter for Loan given. 8. Copy of letter dated:11/11/2008 written by the lender to the AO in reply to the notice u/s. 133(6) issued to them confirming the transaction with your appellant. 9. Copy of the Bank Statement of the Lender (Saraswat Bank) and that of the appellant (ICICI Bank) duly reflecting a further lending of a amount of Rs. 2 lacs on 08.04.2006 and another Rs. 1 lacs on 15.05.2006 by the lender have also lend Rs. 2.00 lacs which was duly repaid on 17.01.2007. 9 Ritesh K. Jain 1. Copy of the Balance Sheet, Income & Expenditure a/c.and Capital A/c.forA.Y.07-08. 2. Computation of Income for A.Y.07- 08. 3. Income Tax Acknowledgement for A.Y.07-08. 4. Pan card Xerox 5. Ration Card Xerox 6. Xerox copy of the bank passbook of the lender duly reflecting the loan given to the appellant. 7. Confirmation letter for Loan given. 8. Copy of letter dated:11/11/2008 written by the lender to the AO in reply to the notice u/s. 133(6) issued to them confirming the transaction with your appellant. 9. Copy of the Bank Statement o....
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....ubmitted that facts of the year under consideration are similar. Hence, the ground of appeal raised by assessee be dismissed. 14. Considering the contention of ld. AR of the assessee that similar ground of appeal for AY 2007-08 was dismissed by the Tribunal vide order dated 27.04.2016. Hence, this ground of appeal is decided against the assessee. 15. Ground No.6 relates to adhoc disallowance of Travelling Expenses @ 10% of total expenses. The ld. AR of the assessee argued that similar adhoc disallowance was raised against the assessee for AY 2007-08 and the Tribunal has remanded the matter to the file of AO in its order dated 27.04.2016. The ld. DR for the Revenue argued that he has no objection, if this ground of appeal is also restored back to the file of AO for considering afresh. 16. We have considered the submission of both the parties and have seen the order of Tribunal for AY 2007-08. The Tribunal passed the following order: ISSUE NO. 6:- 26. According to issue no.6 the assessee has challenged the addition to the tune of Rs. 60,000/- on account of unexplained expenses like electricity, salaries and travelling expenses of both sides (Mumbai and Cuttack) for the A.Y. 2....
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....in ITO vs. On Exim P. Ltd. (2013) 40 taxmann.com 133 (Del Trib.). Further on record we find that the ld AR for the assessee has filed written notes on various grounds of appeal wherein he has also relied on the decision of Allahabad High Court in CIT Vs Sincere Construction [2015]54 taxman.com 31(Allahabad) and decision of Tribunal In Shanti Lal Godawat Vs ACIT [2009] 126 TTJ 135 (Jodh). On the other hand, the ld. DR for the Revenue supported the order of authorities below. It was argued that assessment order was made within two year from the end of Assessment Year. The AO passed the order within period of limitation as prescribed under section 153 of the Act. The ground of appeal raised by assessee is misconceived. It was argued that as per the provisions of section 153, the AO is required to make the order within prescribed period. Section 153 nowhere speaks about service of assessment order within the prescribed period of limitation provided for passing the assessment order. The various decision relied by ld. AR of the assessee are not applicable. The decision relied by ld. AR of the assessee relates to period service of notice under section 148, which has no relevance with the ....