TaxTMI 
TaxTMI 
2017 (10) TMI 1339
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....hich were confirmed by the first appellate authority were impugned by the assessee in Cross Objection No.14/2006. The appeal and Cross Objection were disposed of by the Tribunal by its order dated 23.03.2012. It is this order which is impugned by the assessee with the following questions of law framed for the consideration of this Court: "1. Whether the Tribunal is correct, in law and fact of the case, in remanding the issue, relating to the profit on sale of pent house to the tune of Rs. 21,00,000/-, back to the assessing officer for fresh consideration even after the Tribunal taking note of the fact that the CIT (A) have deleted the addition, inter alia, on the ground that there was no material found in the course of search for this addition and also after getting convinced that the assessing officer is also silent about availability of seized material. Is not the finding perverse and illegal? 2. Whether the Tribunal is correct, in law and facts of the case, in remanding the issue, relating to alleged undisclosed profit of Rs. 50,81,874/- on sale of land and building, back to the assessing officer for fresh consideration even after the Tribunal taking note of the fact that th....
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.... issue afresh in the light of seized materials and pass orders in accordance with law. 5. According to the learned counsel for the assessee, the first appellate authority having deleted the addition for valid reasons, the Tribunal should not have interfered with such order. However, a reading of the order passed by the Tribunal shows that, it had found that the assessment order was silent as to whether the addition was towards suppressed cost of construction or towards the suppressed sale receipts. The Tribunal also took note of the fact that fresh evidence was considered by the first appellate authority without confronting the assessing authority with the same. These reasons assigned by the Tribunal are perfectly legal and, therefore, the Tribunal cannot be faulted for having remitted the issue for the consideration of the Assessing Officer. 6. The second finding of the Tribunal which was impugned by the assessee was with respect to the addition of undisclosed profit of Rs. 50,81,874/- on sale of land and constructed area. This issue also was remitted by the Tribunal and the reasons thereof are stated in paragraph 8.2 thus: "...... In our view, the AO has tried to quantify the....
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....elevant part of Section 158BB of the Income Tax Act reads thus: "(1) The undisclosed income of the block period shall be the aggregate of the total income of the previous years falling within the block period computed, in accordance with the provisions of this Act, on the basis of evidence found as a result of search or requisition of books of account or other documents and such other materials or information as are available with the Assessing Officer and relatable to such evidence as reduced by the aggregate of the total income, or as the case may be, as increased by the aggregate of the losses of such previous years, determined,―" 10. A reading of this provision would show that the undisclosed income for the block period shall be computed in accordance with the provisions of the Act on the basis of the evidence found as a result of search or requisition of books of account or other documents and such material or information as are available with the Assessing Officer and relatable to such evidence. The expression "such evidence" should be read as evidence found as a result of search or requisition issued. So read, computation of undisclosed income shall be; 1) on the ....
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....omputation. Such other materials or information as are available with the Assessing Officer, should as per the section relatable to such evidence. The word "such" used as a prefix to the word "evidence" assumes much significance, in this provision, as it indicates only the evidence found, as a result of search or requisition of books of account or other documents, at the time of search. Any other material cannot form basis for computation of undisclosed income of the block period." Similar principles have been laid down by the Madhya Pradesh High Court in C.I.T. v. K.C.Nirmal Kumar (M.P.) [263 ITR 77], and again by the Madras High Court in CIT v. S. Ajit Kumar (Mad.) [2008] 300 ITR 152 (Mad) and Commissioner of Income Tax v. P.K.Ganeshwar [2009] 308 ITR 124 (Mad). In the light of statutory provision and the principles laid down in the aforesaid judgments, the order passed by the Tribunal sustaining the addition is legally untenable. 13. Further, insofar as this case is concerned, on facts, there is yet another difficulty for the Revenue. In the assessment order, the addition has been made stating thus: "Undisclosed sale price of City Centre space in the case of Shri Jamaluddin ....
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....red as 1 to 27 inventorised as ORF 67 were found and that, page 16 of the set of loose papers is page No.2 of an agreement entered into by Shri Jamaluddin for purchase of 1711 sq. ft. of City Centre space @ Rs. 5,000/- per Sq. Ft., in the latter part of the same paragraph, it is stated that the incriminating documents found during the course of survey and the statement of Shri V. Muneer consituted any other material in possession of the Assessing Officer. In order to reconcile the apparent contradictions in what is stated in the assessment order, the learned Senior Counsel for the Revenue wanted us to read the words "survey" as "search". This plea is raised for the first time and, therefore, cannot be accepted. 15. Even if it is assumed that it was during the search that ORF 67 was recovered and that the page 2 of an agreement is part thereof, according to us, that case of the Revenue raised for the first time is not substantiated in any manner. Annexure-B is the Panchanama prepared at the time of search on 29.01.2003. Insofar as ORF 67 is concerned, in the Panchanama, it is stated that ORF 67 consists of "loose sheets containing statement of accounts, Serial Nos.1 to 23". Theref....