TaxTMI 
TaxTMI 
TaxTMI 
2022 (10) TMI 1139
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....#39; 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. the warrant of authorization u/s. 132 of the Act issued by Jt. Director of Income tax is beyond jurisdiction and search action conducted and all other consequential proceedings are illegal and without jurisdiction; 3. no prior approval was taken in accordance with the provisions of Section 153D of the Act vis-a-vis CBDT instruction. 4. 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. 5. 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. 6. the assessment order was passed simultaneously under section 143(3....
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....he facts and in the circumstances of the case, the Ld. CIT(A) is not justified in directing to accept the sales figure shown by the assessee. 3. On the facts and in the circumstances of the case, the Ld. CIT(A) is not justified in directing to accept the expenses of the assessee when the same are not verified. 4. On the facts and in the circumstances of the case, the Ld. CIT(A) is not justified in directing to allow depreciation to the assessee when the same has not been verified. 5. On the facts and in the circumstances of the case, the Ld. CIT(A) is not justified in accepting the contentions of the assessee and not accepting the findings of the AO in violation of Rule 46A of the IT Rules." 6. At the time of hearing, ld AR of the assessee submitted that he does not wish to press Ground Nos.1 to 7 of assessee's appeal and has endorsed in the file to that effect. Consequently, Ground Nos.1 to 7 of appeal of the assessee stand dismissed as not pressed. 7. It was submitted by ld CIT DR that there was a search on the premises of the assessee and for the relevant assessment year, neither the return was filed u/s.139(1) of the Act nor did the assessee file its return in response ....
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....nal evidence in the form of audit report, the ld CIT(A) in page 13 of his order mentions that the expenses as claimed in the audit report has remained unverified and made an estimated disallowance in respect of administrative expenses and commission charges under the head " export expenses". It was the submission that at the outset, the audit report should not have been admitted and the assessment having been done on the basis of information provided by the Asst. Commissioner, Custom House,,Paradeep, the assessment was liable to be upheld and the order of the ld CIT(A) reversed. 9. It was the further submission that in para 3.3 of the order, the ld CIT(A) has directed the Assessing Officer to accept the turnover as disclosed in the audit report without any reconciliation having been done or having been verified. It was the submission that the order of the ld CIT(A) is liable to be reversed. 10. In reply, ld AR placed before us, copies of the remand reports dated 23.11.2012 and Nil, which are extracted herein below: Dated Nil. Comments on the Audit Report u/s 44AB along with P&L A/c and Balance vis the Assessment Order dated 29.12.2010 In the case of M/s. Serajuddin and....
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.... by the Asst. Commissioner, Custom House and the turnover as disclosed by the assessee in its audit report had been reconciled. It was the submission that the audit report could not be filed in the course of assessment as the same was not ready. It was the prayer that the order of the ld CIT(A) in respect of acceptance of the turnover as disclosed by the assessee in its audit report may be upheld. It was the further submission that the estimated disallowance made by the CIT(A) in respect of administrative expenses and the commission charges under the head " export expenses" may be deleted insofar as no defects in the accounts had been pointed out. It was the submission that the assessee's case was search case and in the absence of incriminating material, no disallowance of the expenses is liable to be made. It was the prayer that addition as made by the ld CIT(A) is liable to be deleted. 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 t....
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....is only due to short shipment and wrongly taken for the different assessment years. Then, the AO does the reconciliation and gives findings that the export sales value provided by the assessee is different from the FOB value and as per the assessee's statement, realisation of sale is on the date of making invoices, when ship start from the Port. The exchange rate on that date decide the export sale value. As per the invoices and exchange rate, the export sale value for the assessment year 2008-09 for the assessee herein is Rs.36,01,28,151/-. To this, if we add the local sales as intimated by the Commercial Tax Authorities of Rs.8,43,40,353/-, the turnover as disclosed by the assessee in 44 AB report at Rs.44,46,37,802/- is reached. 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 t....
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....al income calculated in the * Total income calculated In the assessment order as following: Net profit from the trading activities Total Sale Rs.56,02,71,242/- Net profit @ 22% Rs.12,32,59,673/- Total income Rs.12,32,59,673/- Audit report is prepared on 28.3,2011, which is after thought of the Search and seizure proceeding. Total sale disclosed in the audit report is Rs.36,57,53,056/- which is lower than the actual sale of Rs.56,02,71,242/- as disclosed by the assessee before Sales Tax Authority. Other income of Rs.9,75,244/- disclosed in the audit report was not taken in the assessment order. It may be accepted. Net profit in the assessment order is taken on estimate basis @ 22% of gross sale based on the assessment order of two similar companies doing same business (M/s. Aliza International Pvt Ltd. A.Y. 2008-09. M/s. YIPL A.Y. 2008-09) But the assessee has shown net loss in the audit report, which is not genuine. Net profit taken @ 22% based on the seized documents of similar companies is correct and should be upheld. The auditor's report u/s.44AB alongwith P&L a/c and balance sheet as submitted by the assessee can be accepted for the following r....