TaxTMI 
TaxTMI 
2025 (12) TMI 800
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....the assessee stated that no books of account for the year under consideration has been maintained. Accordingly survey proceedings were converted into search action and a warrant of authorization u/s. 132 of the Act was issued by the PDIT (Inv), Nagpur. Subsequently the Assessing Officer issued notice u/s. 153A of the Act on 26.04.2021 which was duly served upon the assessee. However, no return of income was filed by the assessee in response to the said notice u/s. 153A of the Act. Subsequently the Assessing Officer issued notice u/s. 142(1) of the Act on 20.07.2021 along with a detailed questionnaire. However, no compliance was made by the assessee. Therefore, the Assessing Officer issued a show cause notice on 19.09.2021 requesting the assessee to comply with the above notice on 22.09.2021. It was also mentioned in the show cause notice that in case of non-compliance, the assessment will be completed ex-parte on the basis of material available on record. Since there was again no compliance from the side of the assessee and the assessment was getting barred by 30.09.2021, the Assessing Officer proceeded to complete the assessment on the basis of material available on record. 3. ....
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....terial on which reliance has been placed by the AO while making these additions are rough records mainly noted for the purpose of memory of some matters and for the purpose of keeping check over the working of the business. The appellant has demonstrated that all these expenses are actually made for the purpose of business and are also debited to the P and L account and form part of the books of accounts maintained by the appellant. As the appellant has successfully demonstrated that the expenses are allowable regular business expenses and the AO has treated the same as unexplained expenditure without any corroborative evidence, the addition of Rs. 79,82,000/- made by the AO is hereby deleted. Ground No.1 of the appeal is, therefore, ALLOWED." 7. So far as the addition of Rs. 22,15,39,175/- being the difference between the contract receipts disclosed by the assessee and the certificate issued by the Executive Engineer, PWD is concerned, he deleted the same by observing as under: "5.2 Vide this ground of appeal the appellant contended that the AO has erred in treating the receipts of the sundry debtors of A.Y. 2018-19 i.e. of earlier year as gross receipts of the AY 2019....
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.... (2016) 283 CTR 212 (Ker), he submitted that the Hon'ble High Court in the said decision has held that even if additional evidence produced by the assessee are in nature of clinching evidence leaving no further room for any doubt or controversy, Commissioner (Appeals) is under statutory obligation to put additional material/evidence taken on record by him to Assessing Officer. 10. Referring to the decision of Hon'ble Delhi High Court in the case of CIT vs. Jansampark Advertising and Marketing P. Ltd. reported in (2015) 375 ITR 373 (Del), he submitted that where the Assessing Officer has failed to discharge his obligation to conduct a proper inquiry to take the matter to logical conclusion it is the obliation of the Ld. CIT(A) to ensure that effective enquiry was carried out. He accordingly submitted that he has no objection if the matter is restored to the file of the Ld. CIT(A) for adjudication of the issue afresh. 11. The Ld. Counsel for the assessee on the other hand while supporting the order of the Ld. CIT(A) submitted that the Ld. CIT(A) after appreciating the facts properly has passed the order and therefore, the same should be upheld. He submitted that although the as....
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....rt from the Assessing Officer or without giving any opportunity to the Assessing Officer should not have deleted the additions. 15. We find some force in the above arguments of the Ld. DR. A perusal of the assessment order shows that the assessee has not complied to the various statutory notices issued by the Assessing Officer for which he was constrained to pass the order on the basis of material available on record. Although the assessee has filed certain details before the Ld. CIT(A), however, the Ld. CIT(A) without calling for any remand report from the Assessing Officer or without giving any opportunity to the Assessing Officer to rebut those details and in a very cryptic order, deleted the additions. 16. A perusal of the order of the Ld. CIT(A) shows that it is a very cryptic one without appreciating the issue properly. We find the Hon'ble Delhi High Court in the case of CIT vs. Jansampark Advertising and Marketing P. Ltd. (supra) has observed as under: "37. Thus, when the AO sets about seeking explanation for the unaccounted credit entries in the books of accounts of the assessee in terms of Section 68, it is legitimately expected that the exercise would be ta....
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....d genuineness of the transaction. Whilst it is true that the assessee cannot be called upon to adduce conclusive proof on all these three questions, it is nonetheless legitimate expectation of the process that he would bring in some proof so as to discharge the initial burden placed on him. Since Section 68 itself declares that the credited sum would have to be included in the income of the assessee in the absence of explanation, or in the event of explanation being not satisfactory, it naturally follows that the material submitted by the assessee with his explanation must itself be wholesome or not untrue. It is only when the explanation and the material offered by the assessee at this stage passes this muster that the initial onus placed on him would shift leaving it to the AO to start inquiring into the affairs of the third party. 40. The CIT (Appeals), as also the ITAT, in the case at hand, in our view, unjustifiably criticized the AO for not having confronted the assessee with the facts regarding return of some of the summons under Section 131 or not having given opportunity for the identity of all the share applicants to be properly established. The order sheet entri....
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....sactions in question. This necessitated a detailed scrutiny of the material submitted by the assessee in response to the notice under Section 148 issued by the AO, as also the material submitted at the stage of appeals, if deemed proper by way of making or causing to be made a "further inquiry" in exercise of the power under Section 250(4). This approach not having been adopted, the impugned order of ITAT, and consequently that of CIT (Appeals), cannot be approved or upheld." 17. We find the Hon'ble Kerala High Court in the case of CIT vs. E.D. Benny (supra) has held that even if additional evidences produced by the assessee are in the nature of clinching evidence leaving no further room for any doubt or controversy, Commissioner (Appeals) is under statutory obligation to put additional material/evidence taken on record by him to Assessing Officer. We, therefore, deem it proper to restore the issue to the file of the Ld. CIT(A) with a direction to call for a remand report from the Assessing Officer then decide the issue as per fact and law after providing due opportunity of being heard to the assessee. 18. So far as the two decisions relied on by the Ld. Counsel for the asses....