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2018 (5) TMI 495
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.... letter seeking adjournment has either been filed. It appears that assessee is not keen to pursue her appeals. In such circumstances, we proceed to decide these appeals with the assistance of ld. DR and material available on record. Since, the issues involved in all the four appeals are similar and are arising from same set of facts, these appeals are taken up together for adjudication and are disposed of vide this common order. 3. The brief facts of the case common for all assessment years under appeal are : A search and seizure action was carried on Kotecha Group of Jalgaon on 09.08.2011. As a part of search action, the residential premise of assessee was also searched. Notice u/s.153A of the Income Tax Act, 1961 (hereinafter referred to as 'the Act') was issued to the assessee on 18.05.2012 which was duly served on 25.05.2012. The assessee did not file any return of income in response to the said notice. After more than a year, the assessee vide letter dated 03.06.2013 submitted that the return of income filed u/s.139 of the Act be treated as return in response to the notice u/s.153A of the Act. The assessee at belated stage of assessment i.e. on 15.01.2014 filed obj....
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.... business activity. 5. Unexplained cash credit 1,00,000/- Amount received from Sunil R. Pawer Assessment year 2010-11 6. Unexplained cash credit 47,12,511/- Advance received from Mr. Deepesh Motilal Kotecha for selling shares of Tapi Pre-stress Ltd. Assessment year 2012-13 7. Unexplained cash seized from Locker No. 98 at United Western Bank Ltd. Navi Peth, Jalgaon during search. 1,65,900/- Personal cash from accumulated savings (out of tax paid income) 5. Smt. Nirupama Kotru representing the Department vehemently relied on the impugned assessment orders confirming the additions. The ld. DR prayed for dismissing appeals of the assessee. 6. We have heard the submissions made by the ld. DR and have perused the orders of Authorities below. For the sake of convenience, we will decide the appeals of assessee in seriatim of assessment years. ITA No.1294/PUN/2016 A.Y. 2007-08 7. The grounds rai....
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.... the Act. No notice u/s. 143(2) of the Act was issued to the assessee. Therefore, on the date of search i.e. 09.08.2011, there was no pending assessment. A perusal of assessment order and order of Commissioner of Income Tax (Appeals) show that the additions which are subject matter of appeal before Tribunal are not arising out of any incriminating material found and seized during search. 9. It is a well settled law that where no incriminating material was found during search and no assessments are pending at the time of initiation of proceedings u/s. 153A, assessments made u/s. 153A is without jurisdiction. The Hon'ble Bombay High Court in the case of CIT vs. Continental Warehousing Corporation (Nava Sheva) Ltd. 374 ITR 645 (Bom) has held that if there was no incriminating material found during search, no addition can be made where there was no pending assessments. Similar view has been taken by the Hon'ble Jurisdictional High Court in the case of CIT Vs. Gurinder Singh Bawa 386 ITR 483 (Bom). In the instant case, we find that since the assessment for assessment year 2007-08 had attained finality and no incriminating material was found during search, assessment ....
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....that the assessment was pending or addition was made on the basis of incriminating material found during search. Since the facts in assessment year 2007-08 & assessment year 2008-09 are similar, the findings given by us in assessment year 2007-08 mutatis-mutandis would apply in assessment year 2008-09 as well. For the reasons given while deciding the appeal of assessee in assessment year 2007-08, the ground No.1 raised in appeal for assessment year 2008-09 is allowed. 14. Since we accept the appeal of assessee on legal ground, the other grounds raised in appeal have become infractuous and are dismissed as such. 15. In the result, appeal of the assessee for assessment year 2008-09 is allowed. ITA No.1296/PUN/2016 A.Y. 2010-11 16. The assessee has raised following grounds of appeal in assessment year 2010-11: "1. In the facts and circumstances of the case and in law, the learned Assessing Officer erred in passing the assessment order without having jurisdiction because, no opportunity of being heard was granted to the Appellant u/s. 127 and also disregarding the objections raised u/s. 292BB in this regard. 2. In facts and circumstance of the case and in ....
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.... Nashik, objected was raised before the AO who was not competent authority to decide the issue. 3.4 In this manner, Appellant neither filed any objection to the order passed by the CIT u/s 127 before the office of CIT-II, Nashik and nor it was challenged by way of writ petition. Appellant continued his participation in the assessment proceedings. Moreover, order passed u/s. 127 of the Act is not appealable before the CIT(A). Hence, appeal on this ground is not maintainable and therefore treated as dismissed." We do not find any infirmity in the order of Commissioner of Income Tax (Appeals) in rejecting assessee's challenge to change of jurisdiction u/s. 127 of the Act. Even otherwise, the order passed u/s. 127 is not appealable. Accordingly, ground No. 1 and 2 raised in appeal for assessment year 2010-11 is dismissed being devoid any merit. 18. In ground No. 3 of appeal, the assessee has assailed assessment order passed u/s. 153A r.w.s. 144 being without any jurisdiction, as assessment was made without there being any incriminating material. A perusal of the records reveal that the assessee had filed return of income for assessment year 2010-11 on 16.11.2010. T....
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..... For the appellant's failure to furnish satisfactory evidences regarding the transaction claimed by the appellant the cash credit of Rs. 47,12,511 remains unexplained and addition made by AO to that extent is upheld." There is no material on record to contradict the findings of Commissioner of Income Tax (Appeals). Accordingly, ground No. 4 raised in appeal by assessee is dismissed being devoid of any merit. 20. The ground No. 5 raised of appeal is general in nature and hence, requires no adjudication. 21. In ground No. 6, the assessee has assailed charging of interest u/s. 234A, 234B, 234C and 234D and initiation of penalty proceedings u/s. 271(1)(b) of the Act. Charging of interest u/s. 234A, 234B, 234C and 234D is consequential and mandatory; hence, the objection raised by assessee is dismissed. In so far as assailing of initiation of penalty proceedings u/s. 271(1)(b) is concerned, the issue is premature at this stage, therefore, the same is dismissed. 22. In the result, appeal of the assessee for assessment year 2010-11 is dismissed. ITA No.1297/PUN/2016 A.Y. 2012-13 23. The assessee has raised following grounds of appeal in assessment year 2012-13:....
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....ssessee filed return of income u/s. 139 of the Act on 03.06.2013 i.e. after the date of search. The entire proceedings were open before the Assessing Officer. Therefore, the plea of assessee that in the absence of any incriminating material, no addition/disallowance could have been made is without any merit. Accordingly, the contentions of assessee are rejected. In the result, ground No. 3 raised in appeal by assessee is dismissed. 26. In ground No. 4, the assessee has assailed addition of Rs. 1,65,900/- cash seized during assessment proceedings from locker No.98 of United Western Bank Ltd. Navi Peth, Jalgaon. The plea of the assessee before Authorities below is that the cash in the locker is from accumulated savings on which tax has been duly paid. The Commissioner of Income Tax (Appeals) confirmed the addition by observing as under : "59.3Brief facts are that during the course of search of locker No.98 with United Western Bank Ltd. at Navi Peth, Jalgaon, cash of Rs. 1,65,900 was found in the locker. Appellant contended that amount was her savings out of the tax paid income. Appellant failed to furnish any evidence to justify the cash balance being recorded in any of t....