TaxTMI 
TaxTMI 
TaxTMI 
2019 (5) TMI 1550
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....assessment years. The Tribunal vide order dated 13/08/2017 in ITA Nos. 257 to 259/Coch/2017 and others remitted the issue to the file of the CIT(A) with the following observations: "9 Having heard both the parties and other relevant material on record, we find that the assessee has taken a legal plea on the validity of the search proceedings initiated u/s 132 of the Act, on the ground that the search was carried in violation of provisions of section 132 of the Act as there was no material or evidence was seized at the time of search showing any undisclosed income. Since the legal issue raised by the assessee is emanates from the facts already on record, we deem it appropriate to admit the additional grounds raised by the assessee for adjudication. This view was supported by the decision of the Hon'ble Supreme Court in the case of NTPC Ltd (supra) wherein it was held that there is no reason to restrict the power of the Tribunal u/s 254 of the Act only to decide the grounds raised from the order of the CIT. The assessee as well as the department has a right to file appeal/cross objection before the Tribunal. There is no reason why the Tribunal should be prevented from considering t....
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....ing to legal issue before the Tribunal. Accordingly, these grounds are dismissed as not pressed for all the assessment years. 5. On merits, the only issue for our consideration is with regard to sustenance of additions by the CIT(A) for all the assessment years. 6. The facts of the case are that for the assessment year 2004-05, the assessee had raised the ground relating to addition of Rs. 16.50 lakhs. On earlier occasion, the assessee challenged the sustenance of addition of Rs. 9.5 lakhs by the CIT(A) the addition of Rs. 16.50 lakhs made by the Assessing Officer. In the second round, the CIT(A) adjudicated only the legal issue of initiation of assessment proceedings u/s. 153C of the Act. He has not adjudicated the grounds relating to the additions. Originally, the Assessing Officer made the following additions: a) Cash deposits of Rs. 3,50,000/- The assessee claimed that she received a sum of Rs. 3,50,000/- from Mr. Suresh Babu as advance for sale of 3 cents of land and deposited the same into the above mentioned bank account. The assessee's explanation that she received the said sum as advance from Mr. Suresh Babu for the sale of land she owned was accepted as the same was....
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....rned to her and what was the source for that. In view of the above, the CIT(A) confirmed the addition made on account of unexplained deposit amounting to Rs. 9 lakhs. 8.1 Against this, the assessee is in appeal before us. 8.2 The Ld. AR submitted that the CIT(A) failed to adjudicate the grounds relating to additions made by the Assessing Officer on merits. 8.3 The ld. DR relied on the order of the CIT(A). 9. The assessee has raised the following grounds in ITA No.43/Coch/2019 for the assessment year 2005-06: 1. The order of the Commissioner of Income Tax (Appeals)-III, Kochi in ITA No.168ATVM/ClT(A)-W/2010-11 dated 17.12.2018 for the asst. year 2005-06, is opposed to law, facts and circumstances of the case. 2. The CIT (A) further went wrong in failing to adjudicate the issue of short term capital gain amounting to Rs. 29,22,500/- which is disputed in the Memorandum of Appeal.. 3. The CIT(A) should have found that the estimation of sale consideration at Rs. 35 lakhs and the cost of acquisition at Rs. 5,77,500/- were both arbitrary and unsustainable. 4. The assessing and 1st appellate authority failed to appreciate that the cost of improvement/renovation work done on the....
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....unal towards the concluding part of para 9 of the common order in ITA Nos.257/C/2017 dated 31/08/2017 in which Miscellaneous applications were submitted as regards the issue raised in MA Nos.22 to 124/C/2018 clarified the order by observing that "if the assessee is aggrieved by CIT(A)'s orders passed subsequent to the ITAT order dated 31/08/2017, can file appeals to the ITAT, raising all issues raised in the original appeal before the Tribunal, i.e, ITA Nos.257 to 259/C/2017. It is ordered accordingly." It is submitted that the above situation had not arisen in the appellant's case because the CIT (A) has not passed any order subsequent to the ITAT's order dated 31.8.2017 before passing the order in MA Nos. 22 to 24/C/2018 dated 7.9.2018, which is the last order passed. So much so, the CIT (A) ought to have adjudicated both the issues as regards the jurisdiction and the merit of the case. 14. The appellant further respectfully submits that the judgment of the Hon'ble Apex Court in the case of NTPC Ltd. Vs. CIT reported in (1998) 229 ITR 383 and the judgment of the jurisdictional High Court in the case of CIT Vs. Promy Kuriakose reported in (2016) 386 ITR 597 also shou....
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....ressed Ground Nos 2, 3 & 4 and hence, they are dismissed as not pressed. 10. The facts of the case are that for the Assessment Year 2005-06, the assessment was made as per order dated 31.12.2009 u/s 144 r.w.s. 153C of the Act, after issuing notice u/s 153C dated 20.03.2009. The Assessing Officer estimated short term capital gain amounting to Rs. 29,22,500/-. The assessee sold a property consisting of 9.21 Cents of land along with old building therein as per document No.1469/2005 executed on 31.03.2005 in favour of Shri. Byju Devaraj and Smt. Simi for Rs. 19,50,000/-. The Assessing Officer determined the capital gain by making two adjustments namely - (1) no amount was allowed towards repairs of the building but considered Rs. 5,77,500/- as the cost of the property being Rs. 5 lakhs as the consideration and Rs. 77,500/- as the expenditure on stamp duty and registration. (2) The second adjustment was that the sale consideration of R.19,50,000/- was enhanced to Rs. 35 lakhs by rejecting the sale value as per the sale deed. 11. On appeal, the CIT(A) confirmed the findings of the Assessing Officer. 12. Against this, the assessee is in appeal before us. 12.1 The Ld. AR submitted that....
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....wever, the CIT(A) did not consider the issue merely on presumptions and surmises and without considering the documentary evidence produced before him. Thus, it was prayed that the documents produced before the CIT(A) may kindly be considered afresh. 12.3 The Ld. DR relied on the order of the CIT(A). 13. The assessee has raised the following grounds in ITA No. 44/Coch/2019 for the assessment year 2007-08: 1. The order of the Commissioner of Income Tax (Appeals)-III, Kochi in ITA No.169ATVM/ClT(A)-W/2010-11 dated 17.12.2018 for the asst. year 2007-08, is opposed to law, facts and circumstances of the case. 2. The CIT (A) further went wrong in failing to adjudicate the addition of Rs. 7,59,875/- in the computation of total income. 3. The assessing and the first appellate authority failed to appreciate that the creditors Mrs. Tara Sanadanan and her husband, Mr. Sanadanan had adequate resources to extend financial help to the appellant, which has also been confirmed by the creditors and evidence in support thereof, produced before the assessing and appellate authorities. 4. It is further respectfully submitted that similar issue raised in the Memorandum of Appeal for the asst....
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....e by the Appellate Tribunal in the order in ITA Nos. 257 to 259/C/2017 dated 31.8.2017 along with the appeals filed by Shri K. Nandakumar and Smt. Remy Nandakumar and held in para 9 that whether there was an incriminating material found during the search or not is a matter of fact, which can be found out from the records available with the Department. The issue was, therefore, set aside to the file of the CIT (A) wherefrom the jurisdiction to consider both the grounds, namely, legal issue regarding validity of the search as well as adjudication on the merits came to be restored to the CIT (A). 12. It is submitted that piece meal adjudication of the appeal is not contemplated or permitted u/s. 251 of the Act. Under that section, the Commissioner (Appeals) shall have all powers in disposing an appeal against an order of assessment. He may confirm, reduce, enhance or annul the assessment. Section 256(1) (c) further stipulates that in any other case, the Commissioner (Appeals) may pass such orders in the appeal as he think fit. 13. In this connection, the appellant also respectfully submits that the Hon'ble Apex Court has deal with the issue regarding the power of the Appellate Aut....
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....drawn the amount from her bank account and evidence thereof along with her confirmation, were produced before the CIT(A) and a copy of the purchase document was also produced herewith for verification. 16.2 So far as the second property is concerned, it was submitted that this was purchased from the previous owner Shri Sahadevan for a sum of Rs. 90,000/- and is supported by the sale deed. It was submitted that for the purchase of the above property, the assessee withdrew the amount from her bank account in State Cooperative Bank on that date. The Ld. AR submitted that her explanation along with a photo copy of the bank account may be accepted as supported by evidence and proof. 16.3 The Ld. AR submitted that the second addition of Rs. 5,00,000/- included in the unexplained investment of Rs. 6,03,950/- was based on an agreement entered into between the assessee and Smt. T.A. Omana on 17th July 2006 by which the assessee agreed to purchase a property belonging to Smt. Omana for Rs. 30 lakhs and also agreed to pay an advance of Rs. 5 lakhs. According to the Ld. AR, this transaction did not materialize and neither advance was paid nor the property was purchased. It was submitted that....