TaxTMI 
TaxTMI 
2021 (3) TMI 1113
X X X X Extracts X X X X
X X X X Extracts X X X X
....have been filed u/s 254(2) of the Income Tax Act, 1961 by the aforesaid assessee(s) against the different orders dated 22.03.2013, 16.04.2013 & 30.04.2013. Through these petitions, assessee(s) have pointed out that there are certain apparent mistakes which are required to be rectified u/s 254(2) of the Income-tax Act, 1961. 2. The learned counsel on behalf of the assessee submitted that all these Miscellaneous Applications (in short M. A) have been filed within stipulated time of 4 years applicable at the time of filing MAs. For the proposition that MA could be filed within 4 years at the relevant point of time, he relied on the judgement of Hon'ble MP High Court in the case of Distt. Central Co-operative Bank Ltd. V. UOI (2017) 86 taxmann.com 176(MP). Detailed chart along with affidavits exhibiting that all these MAs have been filed within 4 years of the date of receipt are placed on record. 3. In view of the proposition laid down by Hon'ble Jurisdictional High Court in the case of Distt. Central Co-operative Bank Ltd. V. UOI (2017) 86 taxmann.com 176(MP), we are in agreement with Ld.AR that all these MAs are filed within time and deserve to be entertained for adjudica....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... were made for AY 2003-04 to 2008- 09 and assessment under section 143(3) was made for AY 2009-10, for all the assessees of the group. The Ld. AO made various additions in all the assessment years. It has been contended by the ld. AR that the Ld.AO made various additions in AY 2003-04 to 2006-07, ignoring the fact that the assessments for AY 2003-04 to 2006-07 stood completed on the date of search and in all the impugned assessment years viz. AY 2003-04 to 2006-07, no incriminating material was found during search, except rough jottings in a diary found in case of assessee Arun Sahlot. Further in respect of all the assessees, a specific legal Ground no. 2 was taken before this Tribunal in the grounds of appeal which reads as follows under : Ground No. 2 : That on the facts and in the circumstances of the case, the order u/s.153A is bad in law particularly because: i. No corresponding material much less incriminating material was found in the course of search or thereafter for subject additions. ii. No assessment could be said to be 'pending' on the date of initiation of search and have 'abated' for the subject asstt. year as stipu....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ot. 11. We have gone through the contentions made by the ld. AR and facts of the case. We find that the impugned legal issue raised by all the assessees by way of specific ground no. 2 has remained undecided by the Bench and hence it calls for rectification u/s. 254(2). Ld. DR could not controvert the fact that none of the additions were made on the basis of any seized incriminating material found during the course of search in respect of AY 2003-04 to 2006-07 for all the assessees, except the addition made on the basis of diary in case of Arun Sahlot. 12. We further find that the cardinal proposition that additions in respect of un-abated and completed assessments should not be made in absence of any incriminating material is a settled law and has been followed by this Tribunal also in case of one of the assessee of the same group namely Arun sahlot. Since, all the assesses mentioned in the above captioned Misc. Applications being part of the same group subjected to search and cases heard and decided together and the facts being common it was asserted by Ld. Counsel for the assessee that the same view deserve to be taken in respect of other asessee(s) of the group. 13. It....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ncriminating material was found as these assessments stood completed u/s 143(3)/143(1) and were not pending on the date of search" is hereby allowed for statistical purposes. 15. As regards second issue i.e. In absence of corroboration by way of independent evidence, no addition ought to have been made in respect of rough notings in the diary found in search, Ld. Authorised Representative reiterated his submissions as made in his application. He vehemently argued that the objection relating to the addition made by AO in respect of rough notings in the diaries found in search without corroboration by way of independent evidence, was also raised specifically before the Ld.AO, Ld.CIT(A) and also before this Hon'ble Tribunal. He took us through Para no. 64 Pg. 98 of ITAT order of assessee Arun Sahlot in ITA no. IT(SS).A.Nos.186 to 192/Ind/2012 and 261 to 267/Ind/2012 which reads as under : 64. Before us, the contentions of ld. Authorised representative is that the assessing Officer has not brought any corroborative material on record to indicate that such payments were actually made by the assessee. 16. He also took us through submissions earlier made before this Tribuna....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ee explained that jottings in the impugned dairy had nothing to do with actual financial transactions and it merely contained various proposals, what he intends to do or get done, reminders, appointments, planning, business targets, projections etc. but none of them have materialised. It was also contended that most of the entries are dumb and do not show whether these are payments or receipts whereas the AO has arbitrarily treated all of them as payments. It was vehemently submitted that the AO did not even try to corroborate, much less corroborated, and acted only on the basis of suspicion, conjectures and surmises. It was stated that had the assessee made such huge payments, as alleged by Ld.AO, he would not have thrown the diary recklessly in an unguarded house for years together and would have surely kept it in safe custody for memorandum purposes. Even he would not have scrapped the jottings by way of cutting the entries, as was done in this case. He further argued that if such payments in large numbers and frequencies were made, at least some other evidence in the form of unaccounted bills, kachcha receipt for payment, cash flow statement or the like would have been found in....
X X X X Extracts X X X X
X X X X Extracts X X X X
....pta Vs. DCIT 63 ITJ 532 (Delhi), Amar Natwarla Shah vs. ACIT 60 ITD 560, 564-565 (Ahd.), CIT vs. Khazan singh & Bros. 304 ITR 243 (P&H),DD.Malhan vs. DCIT 91 TTJ 947 (Delhi ), DCIT vs. Vinod Kamra 102 TTJ 152,155 (Jod.) and Atul kumar Jain vs. DCIT 64 TTJ 786 (Delhi). 25. We have gone through the written submissions of AR and the decisions relied upon by him. We find that as regards diary found relating to AY 2004-05 from the possession of the assessee Arun Sahlot, the assessee has been explaining since inception that jottings in the impugned dairy had nothing to do with actual financial transactions and it merely contained various business proposals , reminders, appointments, planning, business targets, projections etc. He filed an affidavit too before AO on oath solemnly stating that he has not made any such payments as presumed and alleged by the AO. Assessee also issued letters u/s. 131 of the Act to call the respective parties to verify the facts but the same was not done. In the statement recorded u/s. 132(4) of the Act also assessee nowhere accepted to have made any such payments alleged to have been recorded in the seized diary and he only averred that the diary contains....
X X X X Extracts X X X X
X X X X Extracts X X X X
....of Ld. A.O for afresh examination. On perusal it seems that the additions are based merely on rough jottings and rough diary but still in the interest of justice and fair play we are of the view that the issue needs to be examined afresh by Ld. A.O after providing reasonable opportunity of being heard to the assessee and the Ld. A.O is also directed that in view of the settled judicial precedents and discussions herein above the addition can be made on the basis of the seized diary only if proper nexus is established and same is corroborated with relevant material. If the Ld. A.O is not able to establish any such nexus between the notings in the seized diary and the actual transaction having taken place then no addition deserves to be made and if found otherwise Ld. A.O can make addition as permissible under the law. In the result Ground No.5 for Assessment Year 2004-05 in the case of Arun Sahlot in IT (SS)A No.187/Ind/2012 is allowed for statistical purposes. 29. Similarly, as regards addition of Rs. 2,00,000/- in the hands of Arun Sahlot in AY 2009-10 on the basis of notings in the diary inventorized as A-3, we find that the assessee deposed in the affidavit filed before AO th....