2021 (4) TMI 801

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....ead case. The assessee has raised the following grounds of appeal: "(1) On the facts and in the circumstances of the case as well in law, the learned CIT (Appeals) erred in confirming the order of Dy.CIT, Central Circle 2, Surat (for the sake brevity "The AO") treating the accounted and disclosed in the return of income filed u/s 139 of the Act the brokerage income of Rs. 3,10,200/- as unexplained cash credit u/s 68 of the Act and hence, not justified. (2) On the facts and in the circumstances of the case as well in law, the learned CIT (Appeals) grievously failed to see and consider in the right and proper perspectives that the detailed explanations furnished for the brokerage income earned and the expenditures incurred there-from in compliance to the notices u/s 143(2)/142(1) of the Act and hence, the action of the AO to assume the jurisdiction for passing the order u/s 144 of the Act, for the alleged non-compliance to the notices/summons issued during the assessment proceedings is without jurisdiction, bad in law, illegal and hence, liable to be struck down. (3) On the facts and in the circumstances of the case as well in law, both the lower authorities have grievously fai....

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....iod, which is not intentional or deliberate. Considering the fair submission of learned AR for the assessee, the delay of two days in filing of the appeal is condoned. 5. Brief facts of the case are that a search action under section 132 of the Act was carried out on assessee and his group/ Dalia Group on 17.07.2012. The assessee was also covered on the said search. Consequent upon search, a notice under section 1%3A of the Act was issued to the assessee on 22.01.2012 for filing the Return of Income. In response to the notice under section 153A, the assessee filed his reply dated 02.08.2013 and submitted that Return of income filed on 23.10.2011 may be treated as Return in response to notice under section 153A of the Act. The Assessing Officer after serving statutory notice under section 143(2) of the Act dated 08.08.2014 proceeded for the assessment. In the original Return of Income, the assessee has declared income of Rs. 2,49,050/-. In the computation of income, the assessee has shown commission income and also claimed certain expenses. During the assessment, the ld.AO issued summon under section 131 of the Act dated 27.01.2015 asking the assessee to file details regarding comm....

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....y filed on record. 9. The learned AR for the assessee further submits that these appeal relates to the abated assessments. It is well settled proposition in law that assessment under section 153A of the Act shall be completed exclusively on the basis of material seized from the premises of person search under section 132 of the Act. It is well settled by various Superior Courts and Hon'ble Apex Court that the additions/disallowances can be made by jurisdictional AO for each year falls within the block period of six years considering the material seized for each separate assessment year concerned. The AO has no jurisdiction to bent upon any presumption of guesswork for disturbing the returned income in absence of incriminating material/evidence on record of the AO for separate and distinct year so as to entitle him to treat the accounted /disclosed brokerage income as unexplained cash credit. In the whole of the assessment order, the AO nowhere referred any incriminating material seized during the course of search under section 132 of the Act. The AO made addition purely on assumption and presumption and guess work. The assessee has already filed return under section 139 of the....

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....own business income. 13. We have considered the rival submission of both the parties and have gone through the orders of authorities below. We have also deliberated of various case laws relied by the learned AR of the assessee. The assessing officer treated the commission income as unexplained cash credit by taking view that assessee has not given any explanation and evidence. On the contrary, in para 4 of the assessment order, the assessing officer recorded that the filed submission dated 10.02.2015, wherein it was submitted that he is not covered within the provision of section 44AD of the Act, he is maintaining all regular books of accounts and other records for commission income. He is also incurred certain expenses, which can be verified. The ledger account of commission income was also furnished, along with party wise details and the available addresses and the amount of commission. No finding was given on such explanation furnished and evidenced by the assessee. Moreover, the ASSESSING OFFICER has not doubted the various expenses claimed against commission income. 14. We have noted that for A.Y. 2011-12, the assessee has furnished Profit and Loss Account of commission inco....