TaxTMI 
TaxTMI 
2019 (9) TMI 1766
X X X X Extracts X X X X
X X X X Extracts X X X X
....rs as tabulated below: ITA Nos. Name of assessee AY CIT(A)'s order dated AO's order dated AO's order under Section 2404 & 2146/Ahd/08 Shri Umang H. Thakkar 1999- 2000 28.03.2008 29.12.2006 153A(b) of the Income Tax Act, 1961 2405/Ahd/08 -Do- 2000- 2001 28.03.2008 29.12.2006 153A(b) of the Act 2. Both assessee and Revenue have filed cross appeals against the order of the CIT(A) dated 28.03.2008 concerning AY 1999-2000. The issue involved being common both the appeals are disposed of by common are as under: ITA Nos. 2404 /Ahd/2008 - AY 1999-2000 - (Revenue's appeal) "1 The CIT (A) has erred in law and on facts in admitting the fresh evidence u/s. 46A without ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....he learned Commissioner of Income Tax (Appeals) has erred in confirming the disallowance of Rs.6,798/- made by the A.O. @ 20% of the expenses on telephone/ mobile. 3. The learned Commissioner of Income Tax Officer (Appeals) has erred in confirming an addition of Rs.4,69,849/- in respect of Hotel Neeltop . 3. When the matter was called for hearing, the learned AR for the assessee at the outset adverted to the additional ground filed in relation to ITA No.2146/Ahd/2008 raising a legal objection. The additional ground so raised reads as under: "Appellant craves leave to raise this additional ground of appeal before the Hon'ble ITAT. This is a legal ground and therefore as per the decision of Hon'ble Supreme Court i....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ting to AY 1999-2000 as well as 2000-01 in appeal falling within the period of 6 assessment years referred to in Section 153A(1) had stood concluded and were not pending on the date of initiation of search under s.132 of the Act. Therefore, the regular assessment survives and does not get abated. It was further vehemently asserted that the assessment order was framed making certain observations on re-appreciation of facts already disclosed/available with the department prior to search. It was further vehemently asserted that the adjustments made in the search assessments are possibly subject matter of regular assessment and do not resonate with the scheme of search assessment under s.153A of the Act de hors reference to any incriminating ma....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... AO. On a specific query from the bench, the learned DR could not controvert assertions made on behalf of the assessee about the absence of any incriminating material found as a result of search which has any bearing on the additions/disallowances in controversy. 7. We have carefully perused the rival submissions and perused the case records. The first and foremost controversy that arises for adjudication is on the scope and ambit of assessment proceedings under s.153A of the Act. The case propounded on behalf of the assessee that additions/disallowances made in Section 153A proceedings has no rational connection with incriminating material, if any, found as a result of search remains undisputed. It is also not dispute that assessment pe....
X X X X Extracts X X X X
X X X X Extracts X X X X
....erials shown to be found in the course of search, the action of the AO is contrary to the position of law judicially enumerated. Therefore, where the additions/disallowances itself are unsustainable and bad in law, the controversy cropped up in the respective appeals of both sides on merits of additions/disallowances is rendered non est. In the light of the aforesaid transactions, the additions/disallowances made in assessment framed under s.153A of the Act is devoid of any legitimacy. Under the circumstances, the additional ground raised by the assessee is allowed and the appeal of the Revenue is dismissed at the threshold as the action of the AO itself suffers from lack of jurisdiction. The order of the CIT(A) is accordingly set aside and....