TaxTMI 
TaxTMI 
2024 (9) TMI 359
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....in presuming that assessee has paid on-money to Manoj Dayani sans any incriminating document or documentary evidence. 5. That the Hon'ble CIT(A) erred in estimating the NP ratio at the rate of 5% as against 3%. 6. That the Hon'ble CIT(A) erred in neglecting the fact that the assessee has declared sufficient additional income of Rs. 75,00,000/- to avoid protracted litigation and buy peace of mind. 7. Any other ground shall be prayed at the time of hearing." 3. Ground no.1, being general in nature, hence no adjudication is required. 4. Insofar as grounds no.2, 3 and 4 are concerned, brief facts of the case are the assessee is engaged in the business of trading in Kirana items. In assessee's case, a search & seizure action was carried out on 16/01/2020. Pursuant to such action, proceedings under section 143(3) r/w section 153A of the Income Tax Act, 1961 ("the Act") have been initiated issuance of notice under section 143(2) of the Act. The assessee filed his return of income declaring a total income of Rs. 86,75,500. The Assessing Officer, on a perusal of the information and seized material, determined the total assessed income at Rs. 1,95,78,784, aft....
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.... addition on the basis that the Ld. A.O. has merely relied on the dumb recording/information, and has not provided an opportunity of cross examination to the assessee. 6.7. Without prejudice to the above, the assessee would like to submit that the said conversation does not have any nexus with the search and seizure operations/proceedings u/s 132 of the I.T. Act, 1961. The assessment u/s 153A/C of the I.T. Act, 1961 shall be based on the evidence found in the course of search, and it does not mean that the assessment can be arbitrary made without any relevance or nexus with the seized material. 6.8. The assessee would also like to submit that the assessee has already brought on record the affidavit/undertaking of Shri Manoj Dayani (Seller) stating that he has not received any penny over and above the amount as agreed as per the registered sale deed. Further, the Ld. A.O. not even bothered to investigate deep/further into the case. Also, the Ld. A.O. failed to record the statement of the seller, which was within the power under the provisions of the I.T. Act, 1961. 6.9. Therefore, the addition made by the Ld. A.O. with regards to the Unexplained Investment....
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.... has failed to consider the reconciliation provided by the assessee with respect to the stock. Further, the Ld. A.O. assessed the income @8% on the sale amount and has not consider the estimate rate at 3%. And, if we assume to tax the aforestated income, the same shall be setoff against the additional income of Rs. . 75,00,000/- as declared by the assessee in his return of income." 6. After considering the assessee's submission, the learned CIT(A) allowed the assessee's appeal and deleted the additions by observing as follows:- "4. Discussion and decision; - As many as nine grounds of appeals have been raised. Ground no. 1 being general in nature and thus requires no separate adjudication and is dismissed. Ground no. 2 to 4 challenges the addition of Rs. . 33,00,000 /- made by AO u/s 69 of the Act. I hereby confirm the addition of Rs. . 33,00,000/- made by AO. As is evident from the assessment order Rs. . 33,00,000/- is the on money paid by the appellant for acquiring the NIT plot bearing 72A having area 743 sq.mt.Kh. No.63,64 and 69 chikhli, 46 Sheet No.411/78 f House No. 1252/72/ A. Ward No.22 of chikhli. The said plot was purchased for offic....
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....additional evidence under rule 29 of ITAT Rules, 1963, as the said documents came into existence only after the date of first appellate order framed under section 250 of the Act in the case of the assessee i.e. 27/01/2023. Since this evidence is very vital and goes to the root of the matter, we admit the same for adjudication. 11. While going through the application for additional evidence, wherein the A.R. has submitted the copy of the order of the learned CIT(A) passed in the case of the vendor Shri Manoj Dayani, cross-examination by the counsel of the vendor and the English translated copy of the cross-examination. We find that the additional evidence came into existence only after the first appellate order was framed under section 250 of the Act in case of the assessee and hence, could not be produced at the earliest juncture. Further, the said evidence goes to the root of the matter of the case and, therefore, we accept the additional evidences. During the course of hearing, it was also brought to our notice that the audio recording was taken at the back of the assessee and was never provided to him, which is against the natural justice and is in violation of section 65B of....