2018 (6) TMI 398

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....anchnama no material whatsoever, was seized in the course of search u/s 132 of the Act on the assessee on 07.12.2010 and therefore the assessment ought to have been on the income assessed "as per original assessment made u/s 143(3) on 31.12.2008, as reduced by the order of the CIT(A) vide his order in appeal no.431/Del/2013 dated 28.12.2012", and ii) the utilization of the material seized in the course of search on 15.11.2007 on M/s BPTP Ltd (and not on the assessee) was not permissible in the present assessment in as much as it is proved/evidenced from AO's own record that no material was found in the course of aforesaid search, which belonged to the assessee, and because of which fact no action was taken u/s 153C in the hands....

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....ry all or any grounds of appeal on or before the date of hearing of the appeal." 3. As regards to Ground No. 2 & 3, the ld. Counsel for the assessee at the very outset stated that this issue is covered in favour of the assessee vide order dated 14.09.2015 in assessee's own case in ITA No. 1734/Del/2013 for the assessment year 2006- 07 (copy of the said order was furnished which is placed on record). The ld. CIT DR although supported the orders of the authorities below but could not controvert the aforesaid contention of the ld. Counsel for the assessee. 4. We have considered the submissions of both the parties and perused the material available on record. It is noticed that an identical issue having similar facts has been adjudicated ....

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....o of the judgments relied upon before the CIT(A) and also before us which have been discussed in the earlier part of this order no arguments have been advanced by the Revenue so as to contend how they are not applicable to the case at hand, no distinguishing fact, circumstance or position of law has been relied upon so as to come to a contrary finding than the one arrived at. Accordingly on a consideration of the peculiar facts and circumstances of the case and the judgments relied upon considering the relevant provision of the Act namely Section 40A(3), we hold for the detailed reasons given hereinabove that Section 40A(3) of the Act has been wrongly invoked as admittedly no expenses relatable to the addition has been claimed and the asses....

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.... law relied upon by the parties has been taken into consideration. On a consideration of the same we are of the view that since in the facts of the present case the material issue is that the said expenditure was never claimed as assessee's business expenditure the occasion to make a disallowance of the same does not arise. On this fact there is no dispute as admittedly the expenditure was not claimed as an expense by the assessee and consequently has not been routed through its P&L A/c. In the circumstances, the occasion to make an addition of the same by way of a disallowance in these peculiar facts and circumstances of the case does not arise. The reasoning and finding given while considering the arguments qua Ground No-4 would fully app....

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.... the parties attention remained focused on addressing the additions made. In the afore-mentioned peculiar facts and circumstances taking cognizance of the fact that in the facts of the present case the CIT(A) makes a reference to facts not borne out from the record namely recording of statement of some patwari and Chotu Ram the support drawn by the CIT(A) in sustaining the addition is found to be misplaced. However since the specific additions under challenge have been addressed on facts and the legal position thereon Ground No-2 in terms of the above observation is left open for want of necessary evidences and arguments based on evidences." 8. So, respectfully following the above said order dated 14.09.2015 in assessee's own case, this ....

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....t findings are given in para 5 which read as under: "5. We have heard the arguments of both the sides and perused relevant material placed before us. At the outset, the ground raised by the Revenue is misconceived because learned CIT(A) has not deleted the addition of Rs. 5,06,625/- but has only directed to recalculate the interest. We have carefully gone through the order of the learned CIT(A) and also the submissions of both the parties and we do not find any infirmity in the order of the learned CIT(A). After examining the loose papers seized at the time of search at the assessee's premises. It was noticed that interest is paid on the PDCs only during the period of extension of PDCs and, therefore, he directed the Assessing Offi....