2020 (2) TMI 148

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....the addition of Rs. 4,56,820/- on the ground of unexplained Cash Credit u/s. 68 in respect of Sundry Creditors outstanding in the books of the Appellant is incorrect and arbitrary as the details of creditors along with their address, ledger copy and balance confirmation were available with the Appellant and hence genuine. 2. Disallowing rent, employees expenses, conveyance and telephone expenses by 30% on estimated basis on the ground the expenses being Bogus is incorrect and bad in law as these are purely incurred for the purpose of business and hence genuine. 3. That the appellant craves leave to add or to amend the above grounds of appeal before or at the time of hearing of the appeal. 4. For these and among other grounds to be urged at the time of hearing, adequate relief as may be deemed fit be granted in the matter. 3. Further the assessee vide letter dated 25.07.2019 has filed additional ground which reads as under :- 1. That on the facts and in the circumstance of the case, the Ld. CIT (Appeal) has erred in law and on facts in upholding the assessments U/s. 153A of the Act in spite of the fact that no incrementing documents whatsoever ....

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.... without jurisdiction and without the authority of law. Further, ld. AR submitted that in the Panchanama, no incriminating material has been found and seized for the particular assessment year under consideration. It was also the contention of ld. AR that the CIT(A) in para (iv)(a), page No.7 & 8 of its order has also mentioned the fact that no incriminating material relating to the assessee has been found and seized during the course of search and seizure operation. It was also submitted by the ld. AR that return was filed u/s.139(1) of the Act on 05.11.2008, which is well within the time and the same was been accepted by the department. However, the due date of issue of notice u/s.143(2) is 30.09.2009 for the assessment year under consideration i.e. A.Y.2008-2009. The search was conducted on the assessee on 11.04.2012. Ld. AR further submitted that the assessment for the assessment year under appeal u/s.144/153A of the Act has been made on 31.03.2015, therefore, the assessment framed by the AO was abated in pursuance to the search. Accordingly, ld. AR submitted that in absence of any incriminating material, the assessment completed u/s.144/153A of the Act, being not sustain....

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.... On perusal of the assessment order, we do not see any mention by the AO that any incriminating material has been found relating to the assessee for the particular assessment year under consideration. Even the CIT(A) has also mentioned in its appellate order that books of account, bills and vouchers of the proprietorships concern of the assessee or other concerns of the Orissons Groups for any completed year of assessment till the date of search were not found in course of search & seizure operation. Therefore, in our considered opinion, it is clear that in absence of any incriminating material found during the course of search in the case of the assessee, the assessment framed u/s.144/153A of the Act is not sustainable. We have also gone through the decision of the coordinate bench of the Tribunal in case of Orison Minerals & Properties Vs. DCIT, IT(SS)A Nos.31 to 34/CTK/2017, order dated 17.05.2018, as relied upon by the ld. AR of the assessee and found that the issue involved in the present appeal has been decided by the Tribunal in favour of the assessee after observing as under :- "8. We have heard the rival submissions, perused the orders of lower authorities and mat....

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....08, Rs. 31,25,558/- for the assessment year 2008-09, Rs. 80,42,406/- for the assessment year 2009- 2010 and Rs. 25,01,682/- for the assessment year 2010-2011. Thus, the grounds of appeal in all these appeals of the assessee are allowed. 11. In the above case, the Tribunal quashed the orders of both the authorities below holding therein that when no incriminating material has been found during the course of search then, no addition can be made while framing the assessment under section 153A of the Act. The aforesaid principle and ratio are clearly applicable on the facts of the present case also. Therefore, it is clear that no incriminating material was found during the course of search, which could have been utilized for making assessment u/s.144/153A of the Act. Ld.DR could not controvert the above facts by brining any cogent material on record. It is also a fact that return was filed u/s.139(1) of the Act on 05.11.2008 and the due date of issue of notice u/s.143(2) is 30.09.2009 for A.Y.2008-2009. However, the search was conducted in case of the assessee on 11.04.2012 and the AO framed the assessment u/s.144/153A of the Act on 31.03.2015, therefore, it is clear that the assess....