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TMI Blog2010 (8) TMI 673X X X X Extracts X X X X X X X X Extracts X X X X ..... see at 18-19, Sai Vihar, Shivajipath, Kalyan(W) contained vouchers for payments made by the assessee to certain individuals. The total amount as mentioned in A-4, A-5 and A-6, came to Rs. 15,72,105/-, Rs. 11,67,901/- and Rs. 16,63,400/- respectively. The AO after examining these vouchers found the contention of the assessee as correct with reference to the vouchers recorded in regular books of account. Further for the balance amount, which remained unexplained and unaccounted, he, inter alia, made the following additions in the original assessment. A-4 ; 11,395.50 A-5 ; 27,901.00 A-6 : 37,900.00 77,196/- He did not accept the assessee's contention that if any addition was to be made on account of unaccounted vouchers for expenses, then he should be allowed credit for the sam ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erest debited to profit and loss account. The assessee's appeal on this count was dismissed by the CIT (A). However, the Tribunal had restored this issue to the file of the AO, observing as under:- "On careful consideration of the facts of the case, we think this is a fit case for restoring the matter to the file of the AO for fresh examination in the light of our comments above. We order accordingly. The matter is restored to the file of the AO for determination de novo. The assessee shall be given good and sufficient opportunity of being heard." 4. During the course of hearing, the assessee had taken additional ground of appeal regarding telescoping of Rs,3,85,000/- treated as deemed income u/s.69-C on account of certain vouchers for A.Y. 1997-98 to 1999-2000 on account of alleged cash received by him against the sales commission of. 1 crore declared and disclosed to tax by the assessee as undisclosed income for the assessment year 1994-95 and 1995-96. The Tribunal noticed that the CIT (A) had rejected this request as there was no evidence to show that cash of `. 1 crore was available with the assessee on the dates when the cash payments were made to land owners. The Tribu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rescribe any time limit for completion of assessment in order to give effect to the findings and directions contained in an order under section 250, 254, 260, 262, 263, 264 or in an order of any court dismissed the assessee's ground, inter alia, observing that since the Tribunal had neither set aside nor had cancelled the entire order, therefore, the provisions of section 153(2A) were not applicable. 6. Ld. counsel for the assessee took us through the Tribunal's order and findings noted above and submitted that the Tribunal had set aside the issue to the file of the AO for fresh consideration and, therefore, the limitation as given in section 153(2A) is applicable and the provisions of section 153(3)(ii) are not attracted. Ld counsel submitted that in order to attract the limitation prescribed u/s. 153(2A), it is not necessary that the entire assessment should have been set aside by the appellate authority and if on certain issues considered in the assessment order, the assessment has been set aside then the provisions of section 153(2A) would be applicable. In this regard, ld Counsel relied on the following decisions: i) Pooran Singh v ACIT, 7 SOT 126 (Agra) ii) W.C. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... utations which may, Subject to the provisions of sub-section (2A) be completed at any time - (i) Where a fresh assessment is made under section 146; (ii) Where the assessment, reassessment or recomputation is made on the assessee or any person in consequence of or to give effect to any finding or direction contained in an order, under sections 250, 254, 260, 262, 263 or 264 or in an order of any court in a proceeding otherwise than by way of appeal or reference under this Act; " A bare perusal of the above section would reveal that sections 153(2A) uses the phrase "an order of fresh assessment" whereas Section 153(3)(ii) uses the phrase "assessments, reassessments and re-computations".... 9. In Blacks law Dictionary VIIIth Edition, the term "set aside" has been defined as under:- "To annul or vacate a judgment, order etc," The term "cancellation" has been defined as under:- "The act of defacing or obliterating a writing with the intention of rendering it void" The term 'set-aside' or 'cancellation' have been used in the phrase together and, therefore, the principles of eujesdem generis applies. The meaning of both the terms derive colour from each other. Thus, in order to a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... irection contained in the said order, provided such other person was given an opportunity of being heard before the said order was passed." These explanations have been specifically incorporated in section 153 so as to save the limitation in those cases where in consequence of fresh assessment order passed in pursuance to the order of appellate authority, a part of income is held to be taxable in another assessment year or in case of another assessee. Such cases have been brought within the ambit of section 153(3)(ii) to avoid any time barring assessment. 10. One more aspect which needs to be considered is regarding the meaning of term "findings or directions" as contemplated u/s.153(3)(ii). In this regard, we may refer to the decision of the Hon'ble Supreme Court in the case of ITO v Murlidhar Bhagwan Das, 52 ITR 336 (SC), wherein, it has been observed that a finding, could only be that which was necessary for the disposal of an appeal in respect of an assessment of a particular year, and a direction is given after recording of findings. There may be cases where appellate authority has recorded findings or directions simultaneously and there may be cases, where only finding ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r requiring the assessee to establish the nexus on the basis of seized material between cash payments made and lands purchased and sold. The AO has observed that the assessee was issued with a notice dated 20.4.2007 under which, he was given reasonable opportunity of being heard. The assessee filed his written reply dated 8.5.2007. He did not accept the assessee's contention. He observed that as per the assessee, the amount shown in the vouchers pertained to payments made to the land lords, the names of whom were appearing in the copy of the documents of purchase of land. Further, it was the assessee's contention that survey number of the land purchased was also written on the voucher stating that the payment was made against the lands purchased. The AO did not accept the assessee's contention observing that the assessee's contention was not fully agreeable for the following reasons: i) Large number of vouchers do not contain the details of survey No. of lands purchased and purpose of payment. ii) Many vouchers have no connection with the parties whose names are reflected in the copy of agreement of purchase of land. iii) No confirmation was furnished from the per ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vis-à-vis the memorandum possession receipt in order to demonstrate the discrepancies. Therefore, we are of the opinion that the matter needs to be examined afresh after giving due opportunity to the assessee to explain the nexus between the cash payments made to landlords and entries in the vouchers found during the course of search. As far as the decision of the Hon'ble Bombay High Court in assessee's own case in relation to present assessment proceedings is concerned, the same primarily deal with the following issues as would be evident from paras 9 & 10 of the said judgment, which is reproduced hereunder: "9. The Tribunal by its order dated 28th July, 2003 deleted certain additions and remitted matter back to the AO for verification of expenditure allowable u/s.37. The Tribunal, however, confirmed addition of Rs. 3, 85,196. The tribunal relying upon the decision of the Supreme Court in CIT v. Jai Prakash Singh (1996) 132 CTR (SC) 262 (1996) 219 ITR 737 (SC) upheld the jurisdiction of the AO and held the notice dt.6th July, 1998 as valid in law being under the umbrella of S.292B of the Act and held that the said notice was factually served on the notice-appellant. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ncome u/s.69-C on account of certain vouchers for the assessment years 1994-95 and 1995-96, against the undisclosed income of the assessee on account of alleged cash received by him against the sales commission of `Rs. 1 crore declared and disclosed to tax by the assessee as undisclosed income for the assessment year 1994-95 and 1995-96. This issue was restored to the file of the AO. The AO observed that in the absence of any corroborative evidence, the assessee's plea that a sum of Rs.3,85,000/- was available out of the advance of Rs. 1 crore was not acceptable. The CIT (A) confirmed the addition. 18. Having heard both the sides, we find that admittedly 1 crore cash was declared by the assessee in the month of September, 1996 as undisclosed income and, therefore, availability of Rs 3,85,000/- out of the same upto the date of search on 11.6.98 could not be doubted. In our opinion, the outflow claimed is quite small as compared to inflow. No major expenses have been pointed out either in the assessment order or in the appellate order to doubt the veracity of the assessee's claim. This ground is allowed. 19. Apropos Ground No.4, brief facts are that vide his notice dated ..... X X X X Extracts X X X X X X X X Extracts X X X X
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