TaxTMI 
TaxTMI 
2019 (7) TMI 1310
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....he combined order dated 31.1.2013 in appeal No.310 to 316/Ind/2012 of ITAT. 2. On the facts and in the circumstances of the case, the Ld. CIT(A) was not justified in upholding the finding of the assessing officer that the appellant was not having any lease hold land with him and that he did not earn agricultural income of Rs. 4,42,900/- from such land. 3. On the facts and in the circumstances of the case, the Ld. CIT(A) was not justified in upholding the addition of Rs. 4,42,900/- towards income from other sources as made by the assessing officer. 4. The appellant craves leave to add, to alter and/or to modify the grounds of appeal on or before the date of hearing." 3. During the course of hearing, the assessee has also filed an additional ground that reads as under: "On the facts and in the circumstances of the case and in law, Learned Assessing Officer erred in making the addition and passing the impugned assessment order under section 153A rws 143(3) without reference to any incriminating material found and seized during the course of conduct of search." 4. This is second round of litigation. In the earlier round of litigation, mat....
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....come Rs. 15,43,915 on 20.06.2008 A.Y. 2007-08 at Rs. 1,46,347 and agriculture income Rs. 15,74,930 on 20.06.2008 Assessment Order : u/s 143(3) rws153A and 254 dated 26.03.2014 A.Y. 2001-02 Rs. 6,14,400 (addition of Rs. 4,46,308 as disallowance of agriculture income and rental income) A.Y. 2002-03 Rs. 6,87,706 (addition of Rs. 5,15,701 as disallowance of agriculture income and rental income) A.Y. 2003-04 Rs. 8,36,980 (addition of Rs. 5,85,071 as disallowance of agriculture income and rental income) A.Y. 2004-05 Rs. 9,16,120 (addition of Rs. 7,10,096 as disallowance of agriculture income and rental income) A.Y. 2005-06 Rs. 57,22,050 (addition of Rs. 7,54,536 as disallowance of agriculture income and rental income) A.Y. 2006-07 Rs. 14,94,220 (addition of Rs. 10,46,878 as disallowance of agriculture income and rental income) A.Y. 2007-08 Rs. 28,72,280 (addition of Rs. 27,25,930 as disallowance of agriculture income, rental income and addition of entries in BS-1) CIT(A) Order :dated 29.01.2016 addition sustained for all the years on account of agriculture income from lease hold land - A.Y. 2001-02 Rs. 4,04,200 A.Y. 2002....
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....ut reference to any incriminating material found during the course of search conducted in the case of the assessee. 3. Search was conducted in the case of Mohd. Shafique, Mohd. Atique and survey in the case of M/s. Ekta Transport Co.Appeals of Mohd. Shafique and Mohd. Atique are in appeal before your Honors. 4. Additional grounds of appeal go to the root of the matterand hence are vital to the disposal of said appeals. Reference to incriminating material is of utmost importance to make addition u/s 153A.Admittance of additional grounds shall help the assessee in getting justice. 5. Reliance is placed on the following decisions for admittance of legal grounds in the instant appeals - a. Hon'ble Apex Court in the case of National Thermal Power Co. Ltd - [1998] 229 ITR 383 - [CLPB 01-02] b. Hon'ble ITAT Chennai (TM)bench in the case of Hemal Knitting Industries - [2010] 127 ITD 160 - [CLPB 39-45] c. Hon'ble ITAT Mumbai bench in the case ofAnjliPandit[2017] 88 taxmann.com 657 (Mumbai - Trib.) - Para 3 and 4 - [CLPB 25-38] 6. Assessee prays that the additional grounds of appeal being legal grounds on fundamental issue of ref....
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....] 8. During the set aside proceedings before Ld. AO, agriculture income on self-owned land was computed @ Rs. 6000 per acre instead of bigha and balance was added. For the addition of agriculture income from lease hold land, the same was sustained for all the years in appeal. 9. In the second round of appeal before Ld. CIT(A), addition made by the Ld. AO on account of self-owned land was deleted by applying the finding given by Hon'ble ITAT of Rs. 6,000 per bigha. Addition of agriculture income on land taken on lease was sustained. 10. In A.Y. 2007-08, in addition to the above mentioned income sustained for agriculture income on land taken on lease, addition of Rs. 16,02,200 was sustained relating to one seized document vide BS-1. 11. Aggrieved assessee is in appeal before Your Honors. C. Submission: (A.Y. 2001-02 to 2007-08) 1. Hon'ble ITAT Bench of Indore vide order dated 31.01.2013 in appeal nos. IT(SS)A 310 to 316/IND/2012 stated - Para 6 - "........However, the fact remains that the assessee is owning agricultural land and also some land was taken on lease......." [emphasis supplied] [PB 378 back side internal page....
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....by the assessee............ 7. 13. None of the agriculture receipts appearing in cash book are......... It is evident from above facts already on recordthat Ld. AO has given a factual and categorical finding about non-existence of any incriminating material found during the course of search relating to agriculture income. 3. In the set aside proceedings, both before Ld. AO and Ld. CIT(A) no reference has been made to any incriminating material found during the course of search operations on the basis of which addition has been sustained for the agriculture income on leasehold land. 4. In the statement of assesseerecorded u/s 132 on 21.09.2006, a specific question was raised vide Question No. 8which further emphasizes the fact that no documents relating to the agriculture land taken on lease were found. Relevant extract -[PB 34] The above question by the officer recording statement during the course of search further corroborates the fact that no documents relating to agriculture land taken on lease were found during the course of search. No addition ought to have been made in absence of any incriminating material found during the course ....
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....e submission,it is submitted thatHon'ble Indore Bench of ITAT noted the fact thatassessee is owning agricultural land and also some land was taken on leaseandgave a very specific direction at para 10 [internal page 13 PB 381] to Ld. AO to compute the lease hold land held by assessee. It was also directed to compute the agriculture earnings from the leasehold land after allowing deduction of lease rentals paid. Assessee submitted the details of the lease hold land held by assessee during the first round of proceedings before Ld. AO.[PB 311 and 312]. Assessee prays that direction may accordingly be given to the Ld. AO and relief may please be granted. Considering the above facts, circumstances of the case, submissions made, documents on record and judicial precedence, appeal of the assessee may please be allowed by deleting the additions made by the Ld. AO and sustained by the Ld. CIT(A). Submitted Authorised Representative 6. Ld. D.R. opposed these submissions and supported the orders of the authorities below. Ld. Counsel for the assessee has taken us through various documents filed in support of claim of land taken on lease. However, no eviden....
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....nds: "As far as additional evidences regarding lease hold land are concerned, the assessee has filed the copies of Khasra and lease agreement in some cases. The submission of the assessee was duly considered, copies of Khasras and lease agreements were perused but the contention of the assessee regarding agriculture income from lease hold land is not found acceptable because of the following reasons:- * The copies of khasra produced by the assessee as additional evidences proves that land is owned by the persons whose name are written in the khasra. Under column 4 of form P-II khasra, where the name of the lease holder is usually written, the name of the assessee is not appearing meaning thereby the land has not been given on lease as per Government records. * In some cases, the assessee has furnished lease agreements with the farmers from whom the said land has been claimed to be taken on Batai. These agreements are made on plain paper with no stamp on them and it appears that they have been signed in one hand writing. Therefore the genuineness of such agreements has not been established. * During the assessment proceedings and the set asi....
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....urchase of seed, tilling/cultivation of land, electricity bills and transportation of the agricultural produce and above all proof of sale of agricultural produce. In our considered view, the evidences so furnished by the assessee in support of his claim are not sufficient to come to a conclusion that the assessee has been carrying out any agricultural activity at the lease hold land and earning agricultural income there from. Therefore, the finding of fact as arrived at by the authorities below cannot be disturbed. This ground of the assessee's appeal is dismissed. 11. Now coming to the additional ground of the assessee's appeal that reads as under: "On the facts and in the circumstances of the case and in law, Learned Assessing Officer erred in making the addition and passing the impugned assessment order under section 153A rws 143(3) without reference to any incriminating material found and seized during the course of conduct of search." 12. Ld. Counsel for the assessee reiterated the submissions as made in the written submissions. The written submissions of the assessee are as under: Fixed for hearing on 14.02.2019 Before the Hon'ble Income Tax Appell....
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....ether a ground by which jurisdiction to make assessment itself is challenged can be urged before any authority for first time - Held, yes - Whether, therefore, assessee was entitled to challenge jurisdiction of Income-tax Officer to initiate reassessment proceedings before Appellate Assistant Commissioner in second round of proceedings even though he had not raised it earlier before Income-tax Officer or in earlier appeal before AAC - Held, yes" [emphasis supplied] b) Hon'ble ITAT Bench of Kolkata 'A' in the case of Peerless Gen. Fin. & Inv. Co. Ltd. - [2008] 21 SOT 440 - HEAD NOTE - Section 253 of the Income-tax Act, 1961 - Appellate Tribunal - Appeals to - Assessment year 1994-95 - Whether jurisdictional provision, which is mandatory, can be taken up in second round of litigation and an assessee can raise issue relating to validity of order in second round of litigation even if same was not raised in first round - Held, yes" [emphasis supplied] c) Hon'ble Bombay High Court (Full Bench) in the case of Ahmedabad Electricity Co. Ltd. - [1993] 6 Taxman 27 - HEAD NOTE - "Section 254 of the Income-tax Act, 1961 - Appellate Tribunal - Powers of - Assessment years 1962-....
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....Hon'ble Apex Court in the case of S. Nelliappan - [1967] 66 ITR 722 - HEAD NOTE - "Section 254 of the Income-tax Act, 1961 [Corresponding to section 33(4) of the Income-tax Act, 1922] - Appellate Tribunal - Power of - Whether in hearing an appeal Tribunal may give leave to assessee to urge grounds not set forth in memorandum of appeal, and in deciding appeal Tribunal is not restricted to grounds set forth in memorandum of appeal or taken by leave of Tribunal - Held, yes" [emphasis supplied] f) The legal and jurisdictional issue raised in the instant additional grounds by the appellant was dealt by the Hon'ble Delhi High Court in the case of Kabul Chawla - [2016] 380 ITR 573 - Para 2 - 'The issue that the Court proposes to address in these appeals is the same that was considered by the ITAT viz., 'Whether the additions made to the income of the Respondent Assessee for the said AYs under Section 2(22)e of the Income Tax Act, 1961 ('Act') were not sustainable because no incriminating material concerning such additions were found during the course of search and further no assessments for such years were pending on the date of search?' [emphasis supplied] 6. The above ....
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.... Ld. CIT(A) was not justified in upholding the finding of the assessing officer that the appellant was not having any lease hold land with him and that he did not earn agricultural income of Rs. 4,04,200/- from such land. 3. On the facts and in the circumstances of the case, the Ld. CIT(A) was not justified in upholding the addition of Rs. 4,04,200/- towards income from other sources as made by the assessing officer. 4. The appellant craves leave to add, to alter and/or to modify the grounds of appeal on or before the date of hearing." 16. Since similar grounds were raised by the assessee in the appeal IT(SS)A No.30/Ind/2016 except difference in figures, this appeal of the assessee is also dismissed based on the findings given in para 14 above in IT(SS)A No.30/Ind/2016. 17. Now we take up IT(SS)A No.32/Ind/2016 pertaining to the assessment year 2003-04. The assessee has raised following grounds of appeal: 1. "On the facts and in the circumstances of the case, the Ld. CIT(A) was not justified in upholding the order of the assessing officer, wherein he had failed to follow the directions contained in the combined order dated 31.1.2013 in appeal No.310....
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....IT(A) was not justified in upholding the order of the assessing officer, wherein he had failed to follow the directions contained in the combined order dated 31.1.2013 in appeal No.310 to 316/Ind/2012 of ITAT. 2. On the facts and in the circumstances of the case, the Ld. CIT(A) was not justified in upholding the finding of the assessing officer that the appellant was not having any lease hold land with him and that he did not earn agricultural income of Rs. 5,93,400/- from such land. 3. On the facts and in the circumstances of the case, the Ld. CIT(A) was not justified in upholding the addition of Rs. 5,93,400/- towards income from other sources as made by the assessing officer. 4. The appellant craves leave to add, to alter and/or to modify the grounds of appeal on or before the date of hearing." 22. Since similar grounds were raised by the assessee in the appeal IT(SS)A No.30/Ind/2016 except difference in figures, this appeal of the assessee is also dismissed based on the findings given in para 14 above in IT(SS)A No.30/Ind/2016. 23. Now we take up IT(SS)A No.35/Ind/2016 pertaining to the assessment year 2006-07. The assessee has raised following ....
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....he findings given in para 14 above in IT(SS)A No.30/Ind/2016. 27. Now we take up the appeal filed by Md. Shakeel in IT(SS)A No.37 to 42/Ind/2016 against different orders of the Ld. CIT(A) dated 28.1.2016 & 29.2.2016 respectively pertaining to the assessment years 2001-02 to 2007-08. First we take up the appeal pertaining to the assessment year 2001-02 i.e. IT(SS)A No.37/Ind/2016. The assessee has raised following grounds of appeal: 1. "On the facts and in the circumstances of the case, the Ld. CIT(A) was not justified in confirming the addition of Rs. 5,00,000/- towards opening cash balance as on 1.4.2000. 2. On the facts and in the circumstances of the case, the Ld. CIT(A) was not justified in upholding the order of the assessing officer, where he had estimated the net profit at 8% on the gross receipts of Rs. 87,54,054/- and in confirming the addition of Rs. 6,52,324/- as made by the assessing officer. 3. The appellant craves leave to add, to alter and/or to modify the grounds of appeal on or before the date of hearing." 28. The assessee has also filed an additional grounds that reads as under: 29. The facts in brief are that the second round o....
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....ained for all the years i.e. A.Y. 2001-02 to 2004-05, 2006-07 to 2007-08. ____________________________________________________________ ______ A.Y. 2001-02 to 2004-05 and A.Y. 2006-07: Grounds of appeal in all the years under appeal except for A.Y. 2007-08 are common,differences relating to quantum involved and hence a combined submission is being made which may please be considered. A.Y. 2001-02: In addition to above mentioned common grounds of appeal, another ground of appeal specifically only for A.Y. 2001-02 relates to addition of opening cash balance. A.Y. 2007-08: The only ground of appeal for this year is related to addition made for unsecured loans (which are squared up in the same year). A. Additional Grounds of Appeal For all the six years under appeal i.e. A.Y. 2001-02 to 2004-05, 2006-07 to 2007-08, assessee has filed additional grounds of appeal through a separate application dated 07.09.2018 which are legal grounds on fundamental issue of jurisdiction going to the rootof the matter. Assessee prays that these grounds of appeal may please be admitted in the interest of natural justice and proper adjudication of the matte....
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....e 16-17] Assessee has also filed an application under the Right to Information Act, 2005 (RTI) on 17.09.2018 requesting to provide the status of above referred pending applications and also to make available certified true copy of the satisfaction note recorded in the case of searched persons viz. Mohd. Atique andMohd.Shafique.[copy annexed to this submission at Page 12] 11. As per the law enshrined in section 153C which relates to assessment of income of any other person, it is the 'satisfaction' of the Assessing Officer of the person searched which is sine qua non for acquiring the jurisdiction u/s 153C. Only when 'satisfaction' has been recorded by the Assessing Officer of the person searched who alone is required under the law to record such satisfaction, even though 'satisfaction' has been recorded by the Ld. Assessing Officer of the assessee and therefore, in terms of law enshrined in section 153C such a recording of satisfaction does not clothe the Assessing Officer with the jurisdiction to initiate proceedings u/s 153C and consequently to frame any assessment u/s 153C rws 143(3). In theinstantcase,Ld. AO of the assessee issued notic....
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....eminder applications were again filed on 02.08.2018 and 25.08.2018. It was only after such a continuous and rigours follow up that certified copy of satisfaction note recorded by AO in the case of assessee i.e. Mohd. Shakeel was provided through letter dated 18.12.2018. Application under RTI was filed on 17.09.2018 which is also pending for disposal in this respect. [PB 55& annexure to this submission at Page 21-22] 15. On perusal of the certified copy of satisfaction note following is evident- a. Heading - Mohd. Shakeel b. Start of the satisfaction note - "....documents seized or requisitioned belongs or belong to the assessee" i.e. Mohd. Shakeel c. Towards the end of satisfaction note - "Therefore the proceedings u/s 153C against the assessee is initiated and his income is assessed or re-assessed in according to the provisions of section 153A." All the above noted points as evident from the certified copy of satisfaction note recorded by AO in the case of assessee i.e. MohdShakeelconclude that the satisfaction note provided is from the file of assessee and not from the file of searched persons i.e. Mohd. Atique and Mohd.Shafiq....
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....ntained and produced bills and vouchers of expenses are also not produced. Therefore, a rate of 8% was applied on the receipts appearing in bank account for A.Y. 2001-02 to 2004-05 and 2006-07 and additionswere made to returned income of each year.For the addition made u/s 68 of Rs. 3,37,000 in A.Y. 2007-08, it was submitted that the loan was availed and repaid in the same year.Ld. AO erred in not considering the facts and the available documents in proper perspective.[PB 69-113] 21. In the first round of proceedings before Ld. CIT(A), the additions as made by Ld. AO were sustained. On appeal before Hon'ble Indore Bench of ITAT, the matter was set aside to the file of Ld. AO. [PB 114-123, 124129] 22. In the remand proceedings, addition made on account of agriculture income for each of the year under appeal were deleted by Ld. CIT(A) by applying the findings given by the Hon'ble Bench to consider agriculture income @ Rs. 6,000 per bighaand the remaining additions were sustained. 23. Aggrieved, assessee is in appeal before Your Honors. Submission:(A.Y. 2001-02 to 2004-05, 2006-07 to 2007-08) 1. Assessee had filed an application on 16.08.2012 bef....
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....d to in Section 153A. That satisfaction of the concerned Assessing Officer is a sine qua non. The consequences flowing from the action to be taken on the basis of such information handed over to the Assessing Officer having jurisdiction, for the assessee, who is a person other than the person referred to in Section 153A, is drastic of assessment or reassessment of his income falling within six assessment years."[emphasis supplied] b. Hon'ble Bombay High Court in the case of Ingram Micro (India) Exports (P.) Ltd - [2015] 60 taxmann.com 57 - order pronounced on 29.04.2015 - HELD - Para 4 c. Hon'ble Indore Bench of ITAT in the case of AmitPande - IT(SS)A No. 88 and 90 to 94/IND/2008 - order pronounced on 28.07.2011 - internal page 27 In the instant case, assessee has raised additional ground in all the years under appeal challenging the validity of the assessments made by invoking section 153C of the Act. 7. Without prejudice to additional ground in all the years under appeal challenging the validity of the assessments made by invoking section 153C - a. Para 2 of Assessment Order for A.Y. 2001-02 dated 31.12.2008 - [PB 72] "Assesse....
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....ught.........." It is evident from above that Ld. AO in the first round of proceedings has not referred to any incriminating material found during the course of search in the case of Mohd. Atique and Mohd.Shafique, which belongedto the assessee. In search assessments, any undisclosed income, which can ultimately be added, is only to the extent of any undisclosed income earned, represented by any incriminating documents/material found during the course of search proceedings. 8. Ld. CIT(A) in first round of proceedings vide order dated 21.03.2012 has also made no reference to any incriminating material found during the search and seizure operations carried out in the case of Mohd. Atique and Mohd. Shafique. [Para 6.3, 7.1 and 7.2 - PB 119, Para 8.1 - PB 120, Para 10.2 - PB 123] 9. In the set aside proceedings also, Ld. AO has not made any reference to incriminating material found during the course of search operations in the case of Mohd. Atique and Mohd. Shafique which is belonged tothe assessee. a. Assessment Order dated 25.03.2014 page 2 para 5 - "...........notice u/s 142(1) of Income Tax Act, 1961 dated 13.03.2014 was also se....
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.... Unabated Yes 7,23,833 5 2005-06 Unabated No - 4 2004-05 Unabated Yes 6,73,337 3 200 3-04 Unabated Yes 1,32,135 2 2002-03 Out of purview of assessments as per proviso to section 153C Yes 99,190 1 2001-02 Yes 11,52,324 12. Reliance is placed on following judicial precedent wherein it is established that the six assessment years shall be calculated from the date of issue of notice u/s 153C - Hon'ble Delhi High Court in the case of Sarwar Agency (P.) Ltd - [2017] 85 taxmann.com 269 - order pronounced on 17.08.2017 13. Further, once the factum of absence of recording satisfaction in the case of searched persons for invoking provisions of section 153C, is accepted, the entire proceedings invoked u/s 153C for all the seven years will stand invalid and bad in law irrespective of the fact whether the covered years got abated or not. 14. Without prejudice to above, assessee submits that statement of affairs as on 31st March 2000 and 31st March 2001 were submitted before Ld. AO during the first round of proceedings. It was also submitted that the business of transportation is being carri....
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....ons on similar footing. Ld. AO grossly erred in taking deposits in the account of concern of father of the assessee for the purpose of applying NP rate of 8% and making additions in the hands of the assessee u/s 153C rws 143(3). 17. The documents on the basis of which addition is made are related to Bombay Transport Company who had entered into a transport contract with M.P. State Civil Supplies Corporation Limited. The income from this contract is earned by Bombay Transport Company. Assessee has supplied its trucks on hire to Bombay Transport Company as noted by the Ld. While dealing this issue in the order. 18. Again without prejudice, no adverse presumption either under section 132(4A) or section 292C could be drawn against the assessee, he not being theperson searched. Reliance is placed on the decision of the Hon'ble High Court of Delhi in the caase of CIT vs. Anil Khandelwal [2015] 93 CCH 0042 (Del.) including following other judicial pronouncements - a) Smt. BommanaSwarnaRekha vs. ACIT (2005) TTJ 885 (Visakha) b) Straptex (India) (P) Ltd. vs. DCIT (2003) 79 TTJ 228 (Mum) c) Rama Traders vs. First ITO (1988) 32 TT....
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....n the same year. This fact is evident from Statement of Affairs as on 31st March 2006 in which there is no amounting outstanding as payable to any of the above mentioned persons. Accordingly, it is prayed that no addition is called for u/s 68. [PB 50] Considering the above facts, circumstances of the case, submissions made, documents on record and judicial precedence, appeal of the assessee ought to be allowed by deleting additions in respective years. Submitted Authorised Representative Fixed for hearing on 14.02.2019 Before the Hon'ble Income Tax Appellate Tribunal, Indore Bench, Indore IT(SS)A No.: 37/Ind/2016to42/Ind/2016 by the Assessee In the matter of :Mohd. Shakeel, Bhopal PAN :ARZPS3328P Assessment Year :2001-02 to 2004-05, 2006-07 and 2007-08 Status : Individual ___________________________________________________________________ May it please Your Honors, In the course of hearing held on 06.02.2019, Hon'ble Bench was kind in giving an opportunity to the Ld. CIT(DR) to make her submission on the case laws relating to the additional grounds ....
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....s before Appellate Assistant Commissioner in second round of proceedings even though he had not raised it earlier before Income-tax Officer or in earlier appeal before AAC - Held, yes" [emphasis supplied] h) Hon'ble ITAT Bench of Kolkata 'A' in the case of Peerless Gen. Fin. & Inv. Co. Ltd. - [2008] 21 SOT 440 - HEAD NOTE - Section 253 of the Income-tax Act, 1961 - Appellate Tribunal - Appeals to - Assessment year 1994-95 - Whether jurisdictional provision, which is mandatory, can be taken up in second round of litigation and an assessee can raise issue relating to validity of order in second round of litigation even if same was not raised in first round - Held, yes" [emphasis supplied] i) Hon'ble Bombay High Court (Full Bench) in the case of Ahmedabad Electricity Co. Ltd. - [1993] 6 Taxman 27 - HEAD NOTE - "Section 254 of the Income-tax Act, 1961 - Appellate Tribunal - Powers of - Assessment years 1962-63 to 1971-72 - During assessment assessee did not claim deduction of amounts transferred to 'reserve' as per Electric Supply Act, 1948, either before ITO or AAC - Later, on basis of a High Court decision holding such amounts as deductible on revenue accoun....
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....leave to assessee to urge grounds not set forth in memorandum of appeal, and in deciding appeal Tribunal is not restricted to grounds set forth in memorandum of appeal or taken by leave of Tribunal - Held, yes" [emphasis supplied] l) The legal and jurisdictional issue raised in the instant additional grounds by the appellant was dealt by the Hon'ble Delhi High Court in the case of Kabul Chawla - [2016] 380 ITR 573 - Para 2 - 'The issue that the Court proposes to address in these appeals is the same that was considered by the ITAT viz., 'Whether the additions made to the income of the Respondent Assessee for the said AYs under Section 2(22)e of the Income Tax Act, 1961 ('Act') were not sustainable because no incriminating material concerning such additions were found during the course of search and further no assessments for such years were pending on the date of search?' [emphasis supplied] 6. The above judicial precedents adequately fortify the case of the appellant. Addition made in absence of incriminating material relating to such addition found and seized during the course of search of Mohd. Atique and Mohd. Shafique, assessee being 'other person' and assesse....
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....iness by applying a net profit @ 8%. Therefore, it cannot be presumed that assessee was not having opening cash balance. Considering the totality of the facts, we delete this addition. 34. Now coming to ground No.2 of the assessee's appeal is against confirming addition of Rs. 6,52,324/- which was made by applying the net profit on the gross receipts @ 8%. Ld. Counsel for the assessee reiterated the submissions as made in the written submissions. He submitted that authorities below were not justified in estimating the profit @ 8%. He submitted that the assessee was having only two trucks which he was plying with Bombay Transport company. Therefore, assessing officer should not have estimated net profit @ 8%. 35. On the contrary, Ld. D.R. opposed these submissions and supported the order of the authorities below and he submitted that the assessee has not given any material to suggest that the assessee was having lesser net receipt. 36. We have heard the rival submissions, perused the materials available on record and gone through the orders of the authorities below. We find that the A.O. has estimated the profit without comparing with similarly situated persons. We find tha....
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....net profit at 8% on the gross receipts of Rs. 20,16,724/- and in confirming the addition of Rs. 77,337/- as made by the assessing officer. 2. On the facts and in the circumstances of the case, the Ld. CIT(A) was not justified in upholding the order of the assessing officer, wherein he had given a finding that the appellant was the owner of the concern M/s. Bombay Transport company, which in fact belongs to Shri Naved Bhai. 3. On the facts and in the circumstances of the case, the Ld. CIT(A) was not justified in upholding the order of the assessing officer, wherein he included the income of M/s. Bombay Transport Company in the hands of the appellant. 4. On the facts and in the circumstances of the case, the Ld. CIT(A) as not justified in confirming the income of M/s. Bombay Transport Company at Rs. 5,96,000/- which resulted by the application of N.P. rate of 8% on the Transportation receipts of Rs. 74,50,000/-. 5. The appellant craves leave to add, to alter and/or to modify the grounds of appeal on or before the date of hearing. 43. Ground No.1 of the assessee's appeal is against confirming addition of Rs. 77,337/- which was made by applying th....
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....ring totality of the facts, we set aside the order of the authorities below and restore this issue to the Assessing Officer to decide it afresh. The assessee is directed to produce the proprietor of the Bombay Transport Company before the A.O. and furnish such details which are necessary to prove that it is related to Bombay Transport Company. After verifying the details and examining the proprietor of Bombay Transport Company, the A.O. would decide the issue afresh. Thus, ground nos.2, 3 & 4 of the assessee's appeal are allowed for statistical purposes. 48. Ground No.5 is general in nature and needs no separate adjudication. 49. Now we take up IT(SS)A No.41/Ind/2016 pertaining to the assessment year 2006-07. The assessee has raised following grounds of appeal: 1. On the facts and in the circumstances of the case, the Ld. CIT(A) was not justified in upholding the order of the assessing officer, wherein he had given a finding that the appellant was the owner of the concern M/s. Bombay Transport Company, which in fact belong to Shri Naved Bhai. 2. On the facts and in the circumstances of the case, the Ld. CIT(A) was not justified in upholding the order of the ....
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....r consideration despite the matter was restored to the A.O. The assessee has placed on record proof of returning of amount through banking channel which is not rebutted by the revenue, therefore, we direct the A.O. to delete this addition. Ground raised in this appeal is allowed. Appeal of the assessee in the assessment year 2007-08 is allowed. 56. Now we take up IT(SS)A Nos.124 & 125/Ind/2016 in the case of Md. Shafique. These two appeals by the assessee are against order of CIT(A)-2, Bhopal dated 4.3.2016 pertaining to the assessment years 2005-06 & 2007-08. First we take up IT(SS)A No.124/Ind/2016 pertaining to the A.Y. 2005-06. The assessee has raised following grounds of appeal: 1. On the facts and in the circumstances of the case, the Ld. CIT(A) was not justified in upholding that the credit of Rs. 2,00,000/- in the name of Anees Ahmed was not explainable and in confirming the addition of Rs. 2,00,000/- towards the same in the hands of the appellant. 2. On the facts and in the circumstances of the case, the Ld. CIT(A) was not justified in upholding that the provisions of sec.44 AE did not apply to the appellant as the appellant was carrying the transport ....
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....e addition and passing the impugned assessment order under section 153A r.w.s. 143(3) without reference to any incriminating material found and seized during the course of conduct of search. 60. Ld. Counsel for the assessee reiterated the submissions as made in the written submissions which reads as under: Fixed for hearing on 14.02.2019 Before the Hon'ble Income Tax Appellate Tribunal, Indore Bench, Indore IT(SS)A No.: 124/Ind/2016 and125/Ind/2016 by the Assessee ________________________________________________________ ____________ In the matter of :Mohd. Shafique, Bhopal PAN :ANIPS2739K Assessment Year :2005-06 and 2007-08 Status : Individual ___________________________________________________________________ __ May it please Your Honors, In the course of hearing held on 06.02.2019, Hon'ble Bench was kind in giving an opportunity to the Ld. CIT(DR) to make her submission on the case laws relating to the additional grounds filed by the assessee. 7. A written submission on the additional grounds along with relevant judicial decisions is already on record. Th....
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.... NOTE - Section 253 of the Income-tax Act, 1961 - Appellate Tribunal - Appeals to - Assessment year 1994-95 - Whether jurisdictional provision, which is mandatory, can be taken up in second round of litigation and an assessee can raise issue relating to validity of order in second round of litigation even if same was not raised in first round - Held, yes" [emphasis supplied] o) Hon'ble Bombay High Court (Full Bench) in the case of Ahmedabad Electricity Co. Ltd. - [1993] 6 Taxman 27 - HEAD NOTE - "Section 254 of the Income-tax Act, 1961 - Appellate Tribunal - Powers of - Assessment years 1962-63 to 1971-72 - During assessment assessee did not claim deduction of amounts transferred to 'reserve' as per Electric Supply Act, 1948, either before ITO or AAC - Later, on basis of a High Court decision holding such amounts as deductible on revenue account assessee claimed deduction of same before Tribunal by way of additional ground while appeal was pending before Tribunal - Tribunal refused to permit assessee to raise such additional ground - Whether phrase 'pass such order thereon' occurring in section 254(1) confers widest possible jurisdiction on Tribunal includi....
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....ppellant was dealt by the Hon'ble Delhi High Court in the case of Kabul Chawla - [2016] 380 ITR 573 - Para 2 - 'The issue that the Court proposes to address in these appeals is the same that was considered by the ITAT viz., 'Whether the additions made to the income of the Respondent Assessee for the said AYs under Section 2(22)e of the Income Tax Act, 1961 ('Act') were not sustainable because no incriminating material concerning such additions were found during the course of search and further no assessments for such years were pending on the date of search?' [emphasis supplied] 11. The above judicial precedents adequately fortify the case of the appellant. Addition made in absence of incriminating material relating to such addition found and seized during the course of search, ought to be deleted. Submitted Authorised Representative Fixed for hearing on 06.02.2019 Before the Hon'ble Income Tax Appellate Tribunal, Indore Bench, Indore IT(SS)A No.: 124/Ind/2016by the Assessee ________________________________________________________ __________ In the matter of :Mohd. Shafique, Bhopal PAN :ANIP....
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....ssee was asked to submit copy of Bank Statement and Return of Income of Anees Ahmed." 9. Para 9.4ofCIT(A) order dated 04.03.2016 - "As the appellant has not furnished any explanation or documentary evidence regarding the credit worthiness of ShriAnees Ahmed or the genuineness of transaction even during the appellate proceedings, the addition made by the A.O. is upheld." 10. Assessee submits that he is not required to maintain books of account and has not maintained the books of account. To invoke provisions of section 68 maintenance of books of accounts is a mandatory condition. In the instant case,sinceno books of accounts are maintained as assessee is not required to maintain them, no addition is warranted u/s 68 of the Act. However, assessee has submitted confirmation letter ofAnees Ahmed as additional evidence which was not accepted and Ld. CIT(A)who proceeded to sustain the addition made by Ld. AO. [PB 9A] 11. Assessee prays that the addition made may please be deleted. b. Ground No. 02 - Rejecting the application of provisions of s. 44AE - Not Pressed c. Ground No. 03 - Addition by estimating net profit @ 8% at Rs....
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....rs. Assessee i.e. Mohd.Shafique is not a party to this deed Both the above referred documents neither belongs to nor pertains to assessee i.e. Mohd. Shafique. Considering the above facts, circumstances of the case, submissions made, documents on record and judicial precedence, appeal of the assessee may please be allowed by deleting the additionsmade by the Ld. AO and sustained by the Ld. CIT(A). Submitted. Authorised Representative 61. Ld. D.R. opposed these submissions and supported the orders of the authorities below. Identical ground was raised in Ground No.1 of additional grounds in IT(SS)A No.37/Ind/2016. For the same reasoning, additional ground raised in this appeal is dismissed. 62. Now coming to ground No.1 of the assessee's appeal, it is against sustaining addition of Rs. 2 lakhs. Ld. Counsel for the assessee reiterated the submissions as made in the written submissions. Ld. Counsel submitted that it is stated that a confirmation letter was received from Anees Ahmed post assessment. However, the same was placed before the Ld. CIT(A), which was not considered by him. He submitted that in the interest of justice, the Ld. CIT(A) oug....
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....d has already been considered by the Hon'ble Coordinate Bench vide order dated 31.1.2013 at PAPER BOOK 377 internal page 6 para 6. Page 274 to 278 is the partnership deed for the business run under the name and style of M/s. ST Developers. Assessee i.e. Mohd. Shafique is not a party to this deed. Both the above referred documents neither belongs to nor pertains to assessee i.e. Mohd. Shafique. Considering the above facts, circumstances of the case, submissions made and documents on record, appeal of the assessee may please be allowed by deleting the addition made by the Ld. A.O. and sustained by the Ld. CIT(A). Submitted Authorised representative. 68. Ld. D.R. opposed these submissions. 69. We have heard the rival submissions, perused the materials available on record and gone through the orders of the authorities below. We find that the money credited to in the account of wife of the assessee amounting to Rs. 45,000/- has been added to the income of the assessee. In our view, the A.O. was not justified to make addition in the hands of the assessee. Without considering the fact that such a small amount could be saving from the gifts, et....