TaxTMI 
TaxTMI 
2022 (10) TMI 1141
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....Act,1961(herein after referred as ' the Act') is bad in law and liable to be quashed inasmuch as that:- 1. no warrant of authorization u/s 132 of the Act was issued in the case of the appellant for which the assessment order passed u/s 153A of the Act is beyond jurisdiction and search action conducted and all other consequential proceedings are illegal and without jurisdiction; 2. no prior approval was taken in accordance with the provisions of Section 153D of the Act vis-a-vis CBDT instruction. 3. no opportunity was given for cross-examination of various persons whose statements were relied upon for making various disallowances thereby violating the principles of natural justice. 4. the assessment order was passed without providing the print out from seized and sealed CDs , Hard disks and the books of account illegally removed from the premises of its accountant thereby violating the principle of natural justice. 5. the assessment order was passed simultaneously under section 143(3) and 144 of the Act. 6. the assessment order was passed without serving notice under section 153A(1)(a) of the Act. The Ld Commissi....
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....e Tax (Appeals) erred in failing to consider that the assessment order passed u/s.143(3)/153A/144 of the Income Tax Act,1961(herein after referred as ' the Act') is bad in law and liable to be quashed inasmuch as that:- 1. no warrant of authorization u/s 132 of the Act was issued in the case of the appellant for which the assessment order passed u/s 153A of the Act is beyond jurisdiction and search action conducted and all other consequential proceedings are illegal and without jurisdiction; 2. no prior approval was taken in accordance with the provisions of Section 153D of the Act vis-a-vis CBDT instruction. 3. no opportunity was given for cross-examination of various persons whose statements were relied upon for making various disallowances thereby violating the principles of natural justice. 4. the assessment order was passed without providing the print out from seized and sealed CDs , Hard disks and the books of account illegally removed from the premises of its accountant thereby violating the principle of natural justice. 5. the assessment order was passed simultaneously under section 143(3) and 144 of the Act. 6. ....
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....und Nos.1 to 6 of assessee's appeals and has endorsed in the file to that effect in both the appeals. Consequently, Ground Nos.1 to 6 of both appeals of the assessee stand dismissed as not pressed. 5. The revenue is its appeal i.e. IT(SS)A No.73/CTK/2013 (AY: 2008-2009) has raised the following grounds :- 1. On the facts and in the circumstances of the case,. the Ld. CIT(A) is not justified in holding that lease right payment of Rs.28, 98,298/ - was not a capital expenditure. 2. On the facts and in the circumstances of the case, the Ld. CIT(A) is not justified in holding that the claim of purchases at Rs.35,89,89,500/- in the P & L AIc was correct. 3. On the facts and in the circumstances of the case, the Ld. CIT(A) is not justified in holding that the assessee did not have income of Rs.53,61,991/- from crushing activity. 4. On the facts and in the circumstances of the case,. the Ld. CIT(A) is not justified in directing to compute the income on the basis of P & L A/c in the audit report when the assessee did not produce the details before the AO during assessment. 5. On the facts and in the circumstances of the case, the Ld. CIT(A) is....
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....is to be considered in place of figures adopted by the AO in the assessment order. The relevant observations of the Tribunal in para 12 are as under :- 12. We have considered the rival submissions. Admittedly, the first issue that comes up for adjudication is in regard to admission of the additional evidence in the form of 44AB report by the ld CIT(A). As rightly pointed out by ld CIT DR, the due date of filing the 44AB report was 30.9.2008 but the audit report has been obtained only on 23.3.2011 and the assessment order has been passed only on 28.12.2010. Clearly, the assessee was not in possession of the audit report when the assessment was done. True, ld CIT(A) has not given a speaking finding in regard to clause under which the additional evidence has been admitted under rule 46A. However, a perusal of the remand report by the AO shows that the AO has not raised any objection in respect of admission of the audit report. In fact, the AO in the report dated Nil has categorically mentioned that other income disclosed in the audit report not taken in the assessment order may be accepted. In respect of expenses representing the transportation charges, stevedoring charges an....
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.... Thus, clearly, the 44AB report as admitted by the ld CIT(A) and on which remand report has been called for from the AO had been examined by the AO and same has also found to be substantially correct. The AO having given a finding in the remand report that the auditor's report u/s.44AB alongwith profit and loss account and balance sheet as submitted by the assessee may be accepted for the reasons mentioned therein, it no more lies in the mouth of the AO to raise a ground in the second appeal that there has been violation of the provisions of Rule 46A. The audit report having also been reconciled with the figures as arrived at by the AO on the basis of communication received from the Commercial Tax Authorities and the Asst. Commissioner, Custom House. we are of the view that the ld CIT(A) has only accepted the remand report of the AO when directing that the figures in the audit report is to be considered in place of figures adopted by the AO in the assessment order. Consequently, we are of the view that the findings of the ld CIT(A) are on right footing and does not call for any interference. 8. It was further submitted by the ld. CIT-DR in respect of IT(SS)A No.73/CTK/2013 for t....
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....seized document being BMD-10 was never produced before the ld. CIT(A) when specifically requested for. It was further submitted that even in the remand report the AO has categorically mentioned that the seized document being BMD-10 is not available. It was the submission that in the absence of seized document the addition has rightly been deleted by the ld. CIT(A). 13. We have considered the rival submissions. A perusal of the order of the ld. CIT(A) at page 13 of his order clearly shows that he has called for the said seized document i.e. BMD-10 and the same was not produced and in the remand report the AO had categorically admitted that the seized document was not available. This being so, in absence of corroborating evidence being the seized material, we are of the view that the ld. CIT(A) was right in deleting the addition made by the AO in respect of crushing activity. 14. In respect of IT(SS)A No.74/CTK/2013 filed by the revenue for assessment year 2009-2010, ld. CIT-DR submitted that the ld. CIT(A) has disallowed 10% of the export expenses less custom duty. It was the further submission that in respect of administrative expenses disallowed at 10%, which was done minus ....