TaxTMI 
TaxTMI 
2021 (8) TMI 1204
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....written submissions made by the Appellant. [3] On the facts and in law, the CIT (A) has erred in sustenance of additions of Rs. 1,15,000/- made u/s. 68 without taking cognizance of written submissions supported by confirmation by the person booking the flat under construction. [4] You are kindly requested to delete impugned aggregate additions of Rs. 53,29,443/- as per the provisions of the Act and oblige. [5] The above grounds of appeal are without prejudice to one another and the Appellant crave leave to add, to alter and/or amend any of the foregoing grounds and to make new or additional submissions at the hearing of the appeal as well as to submit fresh documents and information as advised. Apropos ground No. 1 4. Brief facts are that from the perusal of the seized documents and statements recorded during the course of search, the AO has observed that the assessee has suppressed profit on sale of its project named 'Morya Apartment', Plot No. E- 33, Sector-3, Kharghar sold to M/s. Yerala Medical Trust and Research Centre. As per the registered agreement dated 13.06.07 the sale consideration has been shown at Rs. 1,00,00,000/-. However, as....
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.... of total income enclosed with the return of income, the assessee has computed the total income at Rs. 89,50,560/- whereas in the return of income the total income has been shown at Rs. 54,73,530/-. The copy of the computation of total income is also enclosed with the assessment order as Annexure O-2. Thus, the AO has adopted the total income at Rs. 89,50,560/- shown in the computation chart by the assessee itself. 5. Upon assessee's appeal learned CIT(A) held as under : "I have considered the submissions of the appellant, order of the AO and facts of the case carefully. It is noticed the AO has observed that the assessee has suppressed the profit on sale of project named 'Morya Apartment' sold to M/s. Yerala Medical Trust and Research Centre for a consideration of Rs. 1,75,00,000/-. As per the agreement dated 13.06.07 the sale consideration was shown at Rs. 1,00,00,000/-. But, as per the statement of Shri Madan Kolambekar and the seized page no, 45 of Annexure A-3 seized from his residence, it is duly signed receipt dated 27.01.07 in which the sale consideration of this project was shown at Rs. 1,75,00,000/-. Thus, there was a suppression of Rs. 1,75,00,000/- r....
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....ound of appeal is dismissed." 6. Against the above order assessee is in appeal before us. We have heard learned Departmental Representative. None appeared on behalf of the assessee despite several notices. 7. Upon careful consideration, we note that this addition was duly and properly made on the basis of material discovered during the search. In our considered opinion learned CIT(A) has taken a correct view of the matter and has addressed all the issues. Accordingly, we uphold the order of learned CIT(A). Apropos ground No. 2 8. Brief facts the AO has noticed that as per the assessment orders for the AYs. 2005-06 to 2007-08, the assessee was not allowed for capitalization of certain expenses in these years on account of non-deduction of tax (TDS), the detail of which is given at page 18 of the assessment order amounting to Rs. 13,85,565/-. During the year under consideration, the assessee has booked sale in respect of 'Morya Apartment' project and computed the profit accordingly. The amount of Rs. 13,85,565/- which was disallowed to be capitalized during the AYs. 2005-06 to 2007-08 on account of non-deduction of TDS was disallowed in the computation of total in....
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.... AR of the appellant has submitted its reply which is reproduced as above. The AR of the appellant has admitted that the Hon'ble Tribunal Special Bench has decided that this amendment is not with retrospective effect and the case of the appellant is not covered by this amendment. However, the AR of the appellant has raised another argument that provisions of section 40(a)(ia) is applicable only when there is an amount outstanding and payable. This argument of the appellant is answered by the Hon'ble Calcutta Tribunal in case of DCIT vs. Ashika Stock Broking Ltd. (44 SOT 556) where it is held that whether even the sum is payable or paid to contractor or subcontractor on which tax is deductible at source as per the provisions of the I.T. Act, section 40(a)(ia) would be attracted. Keeping in view the totality of facts and circumstances, it is held that the case of the appellant is covered by the decision of Hon'ble Mumbai Tribunal in case of Bharati Shipyard and the Hon'ble Calcutta Tribunal in case of DCIT vs. Ashika Stock Broking Ltd. Therefore, it is held that the case of the assessee is covered u/s. 40(a)(ia) and the addition made by the AO on this account is uphel....
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....n the facts and in law, learned AO has erred in assuming that there was apparent mistake in the assessment order passed by his predecessor. Impugned assessment order was assailed before the CIT (A) under section 246A and order passed by the said CIT (A) u/s.250 is further assailed before the Hon'ble Tribunal u/s. 253 vide ITA No.1995/Mum/2012 dated 26.03.2012. Original assessment order was "merged with the appeal order u/s. 250" there was no assessment order existing which is rectifiable u/s. 154 by the said AO. [4] On the facts and in law, as the matter is pending before the higher authority [Hon'ble I.T.A.T.], the said AO has no legal and valid authority to amend impugned assessment order u/s. 154. [5] You are kindly requested to cancel impugned rectification order as per the provisions of the Act and oblige. 15. The facts of the case are that in this case, order u/s. 143(3) r.w.s. 153C of the I.T. Act, 1961 was passed on 29.12,2010 determining the total income at Rs. 1,08,02,973/-. On perusal of the record, it was found by the Assessing Officer that - (i) addition of Rs. 6,00,000/- had been made in para 10.3 of the order but the same remaine....
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....pellate proceedings. Regarding the other contention of the assessee, the order which has been amended u/s. 154 of the I.T. Act, 1961 has been passed by an Assessing Officer (DCIT) and the same has been rectified again by the same Income-tax Authority. It is not as if the order of the Id. CIT(A) is sought to be rectified by the DCIT. Hence, the contention of the assessee that the order has been rectified by a different. I.T. Authority cannot be accepted. The arguments of the assessee are, therefore, rejected. 4.1 The assessee, without prejudice to the above legal contentions, has further submitted that on merits also, there was no mistake as assumed by the AO and has advanced various arguments on merits. In my opinion, the arguments of the assessee on merits to contend that the additions of Rs. 6,00,000/- and Rs. 5,83,174/- was not correct cannot be taken cognizance of in an appellate proceeding against an order passed u/s. 154 of the IT. Act, 1961. What is required to be seen by the Appellate Authority is not the merits of the addition but whether there is a mistake apparent from the records which is rectifiable u/s. 154(1) of the IT. Act, 1961. 4.2 Perusal of the....
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....roceedings initiated u/s 147 of the I. T. Act is invalid and bad in law. 2. On the facts and in the circumstances and in law, the assessment order passed u/s 143(3) r.w.s. 147 of the I.T. Act is invalid and bad in law. 3. On the facts and in the circumstances of the case and in law, the learned C.I.T. (A) erred in dismissing the appeal and that too without even giving full and proper opportunity of being heard in the matter. 4. On the facts and in the circumstances of the case and in law, the learned C.I.T.(A) erred in dismissing the appeal and that too without even appreciating fully and properly the facts of the case. 5. On the facts and in the circumstances of the case and in law, the learned C.I.T.(A) erred in upholding the action of the A.O. in making an addition of an amount of Rs. 51,99,883/-. 6. Without prejudice to ground no.5, and on the facts and in the circumstances of the case and in law/the learned C.I.T.(A) erred in upholding the action of the A.O. in making an addition of an amount of Rs. 48,77,140/-. 7. Without prejudice to ground no. 5 and on the facts and in the circumstances of the case and in law, the learne....
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.... of Rs. 6,734/- shown as due to the party was treated as unexplained credit and added back to the total income of the appellant. In respect of the 10 parties on whom verification letters could not be served, the AR of the appellant failed to produce the confirmation letters from these parties or produce the above parties for examination or produce ledger copies of these parties as appearing in its books of account. The appellant also failed to satisfactorily explain as to what prevented it from giving the correct addresses of the sundry creditors etc. in the first place in its submissions filed during the course of assessment proceedings. In view of the above, as necessary evidence in support of the advances claimed to have received from these parties was not filed by the appellant, the same were treated as unexplained credits u/s.68 and assessed as income of the appellant. Similarly, in respect of sundry creditors also, upon its failure to file the confirmation letters from concerned parties, the same were treated as unexplained credits u/s.68 and thus, an addition of Rs. 51,93,149 (Rs. 48,77,140 + Rs. 3,16,009) was made to the loss returned by the appellant. 25. Upon assessee'....