TaxTMI 
TaxTMI 
2018 (7) TMI 948
X X X X Extracts X X X X
X X X X Extracts X X X X
....e common. Therefore, for the facility of reference we take up the facts from the assessment year 2007-08. 3. Brief facts of the case are that search and seizure operation was carried out in the case of "Friends Group" on 15.6.2011 under section 132 of the Income Tax Act. The case of the assessee was also covered in this search action and in order to give logical end to the proceedings, notice under section 153A of the Act was issued and served upon the assessee. The Assessee has filed his return of income on 2.7.2013 and 29.6.2013 (2008-09) declaring taxable income at Rs. 39,63,985/-, Rs. 33,20,358/- and Rs. 4,93,40,266/- in the assessment years 2006-07 to 2008-09 respectively. The ld.AO has observed that the assessee has given advances to M/s.Gautam Freight P.Ltd., Friends Salt Works and Allied Industries and Antai Balaji Ltd. without charging interest. The assessee has paid interest on secured loan of Rs. 28,49,043/- in the assessment year 2006-07. He further found that similar interest expenditures were claimed in other years also. Thus, the ld.AO harboured a belief that interest bearing funds were diverted towards interest free advances to associate concern. In his opinion, in....
X X X X Extracts X X X X
X X X X Extracts X X X X
....s. 43,63,462/-) are disallowed and added to the total income of the assessee firm." Asstt.Year 2008-09: "The submission made by the assessee have been carefully considered. However, the same is not acceptable. It is admitted by the assessee in his reply that there is no agreement in writing for the rent with Sister Concern and others. The assessee has not submitted any documentary evidence regarding its claim of such expenses. Further, the assessee has not furnished any reasons for increasing equipment rent as compare to the preceding year. The entries were made on the last date on 31-03-2008, though the payments were made from 01-04-2007 to 31-03-2008. Thus, this is nothing but accommodation entry just to avoid the legitimate payment of tax. Therefore, the amount of Rs. 3,06,60,000/- being equipment hire charges and Rs. 43,45,449/- being warehouse rent charges total amounting to Rs. 3,50,05,449/- (Rs. 3,06,60,000/- + Rs. 43,45,449/- ) are disallowed and added to the total income of the assessee firm." 6. Dissatisfied with the disallowance, the assessee carried the matter in appeal before the ld.CIT(A). The ld.CIT(A) has deleted disallowance by holding that during the cours....
X X X X Extracts X X X X
X X X X Extracts X X X X
....) these Authorities in view of clear and unambiguous mandate contained in the ratio of the Hon'ble SC in Kamlakshi Finance 53 ELT 433, also cited before him, which, and few more brought to my notice during the course of hearing, I may quote in this behalf: DCIT vs. Manjara Shetkari Sahakari Sakhar 2004 91ITD 361 Mum 21.......In regard to the objection ofShri Kapila that the Hon'ble High Court did not consider this aspect in detail and all the relevant arguments, it would be pertinent here to refer the decision of the Hon'ble Apex Court rendered in the case ofAmbika PrasadMishra v. State of UP, AIR 1980 SC 1762, at Page 1764, wherein it was held: - "Every new discovery or argumentative novelty cannot undo or compel reconsideration of a binding precedent...... A decision does not loose its authority merely because it was badly argued, inadequately considered or fallaciously reasoned....." 22. In view of the above, we taken the decision of the Hon'ble High Court rendered in the case ofShivamrut Doodh Utpa'dak Sahakari Sangh Maryadit cited supra, as a binding precedent. It would be pertinent here to note that the Hon'ble Supreme Court in the case of ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....d. AO has erred in not expressly dealing with and respectfully following the Binding Authorities cited before him. 5.6 Turning to the ratio of All Cargo Global 23 Taxmann.com 103 dated 6/7/2012 cited before the AO, the Special Bench had unambiguously and expressly answered the question referred to it as under: Thus, question raised before the Special Bench No. 1 is answered as under: (a) In assessment that are abated, the Assessing Officer retains the original jurisdiction as well as jurisdiction conferred on him under section 153A for which assessments shall be made for each of the six assessment years separately; (b) In other cases, in addition to. the income that has already been assessed, the assessment under section 153A will be made on the basis of incriminating material, which in the context of relevant provisions means - books of account, other documents, found in the course of search but not produced in the course of original assessment, and undisclosed income or property discovered in the course of search. [Para 58] 5.7 Moreover, it was further submitted during the course of hearing that subsequent to All Cargo Global (supra),there are further decisions which ....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... date of search. Therefore, even though pursuant to issue of notice u/s. 153A, assessments for 6 years immediately prior to the date of search are to be framed u/s. 153A, but in respect of unabated assessments which have become final and no incriminating material is found during the course of search for those years, no addition could be made in respect of such unabated assessments. In this regard, Hon'ble Bombay High Court in case of Continental Warehousing Corporation (58 Taxmann.com 78) has held as under: ...... Similar view has also been held by the Pune ITAT in the case of SRJ Peety Steels Pvt. Ltd. (137 TTJ 627) and the Delhi TTAT case of Sanjay Aggarwal (47 Taxmann.com 210). In view of binding precedents, Revenue authorities were not justified in making disallowance claimed u/s. 8OIA in respect of unabated assessments because there was no incriminating document found during search which could suggest that claim u/s. 80IA is not permissible even though assessment u/s. 153A can be made. We hold so. Accordingly, same is quashed and claim of assessee u/s.80IA(4) amounting to Rs. 61,82,292/- cannot be negated. Assessing Officer is directed accordingly. Saumya Construc....
X X X X Extracts X X X X
X X X X Extracts X X X X
....sments under reference were concluded and unabated on the date of the search. There is also no dispute that there is no incriminating seized material used, relied upon or referred to by the AO or pointed out during the course of hearing, for making or supporting any of the additions. Thus, the appellant's case is squarely covered by the ratios of the binding Authorities discussed, and therefore, any of the additions made by the AO for any of the year under appeal are not sustainable. Thus and therefore, all the additions made by the AO in contravention of law laid down by Binding Authorities discussed supra are deleted for all the three years under reference. The appellant gets equivalent relief as under: A.Y. Relief (Rs.) 2006-07 4,45,234/- 2007-08 1,35,24,124/- 2008-09 3,52,96,111/- 6. As the ground on legality of additions is allowed, the other grounds on merits are considered not necessary to be adjudicated at this juncture. The related grounds are therefore dismissed as purely academic not requiring adjudication." 7. Before us, the ld.DR relied upon the order of the AO. He submitted that auditor of the assessee has pointed out discrepancy in the payment....