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TMI Blog2012 (7) TMI 532X X X X Extracts X X X X X X X X Extracts X X X X ..... ls on 23/12/2011 thus providing only 1 day time. 2. The learned Asstt.CIT erred in passing the order dt. 30/12/2011 by merely copying the findings of the earlier orders dt. 31/7/1997 and dt. 26/12/2008 which was set aside by ITAT twice further AO failed to consider the submissions and details filed on 29/12/2011, the said facts shows that there was no independent application of mind by AO, therefore order is bad in law. 3. The learned Asstt.CIT (A) failed to appreciate that no assessment can be made on protective basis in the block assessment scheme, therefore, the assessment order is bad in law. 4. The learned Asstt. CIT (A) erred in treating assessee as benamidar of Shri Suresh Malge without appreciating that assessee herself is assessed to tax since last 10 years". 3. The facts which reveal from the records are that in both these cases search and seizure operation u/s132 was carried on at the business and residential premises of these two assessees on 13.7.1996. Smt Sushila Suresh Malge is the spouse of Shri Suresh Babu Ganpat Malge. Further, survey action u/s 133(A) was also carried out in their business premises on 13.7.1996 and 17.7.1996. In consequence of the search oper ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hawan, the assessee modified his statement/declaration which was given on 14.7.1996 by taking contention that in respect of the offer of the undisclosed income, the same should be modified to the extent of the evidence found during the course of search operation. The A.O has also noted that the assessee wrote a letter dated 30.7.96 to the ADIT (Inv), Head Qtrs. clarifying that his earlier letter dated 17.7.96 was not a retraction but only a clarification. The A.O has also reproduced the part of the letter in the assessment order. Finally, the A.O passed the assessment order by determining the total undisclosed income of the assessee at Rs. 1.50 crores and the same was treated as the income of Shri Suresh Babu G Malge and substantive assessment was made in his hand and in the case of Smt Sushila Suresh Malge, she was treated as benamidar of Suresh Babu G Malge and was assessed accordingly. The operative part of the assessment order reads as under: "As already discussed in the above paras the assessee is not maintaining any books of accounts, nor does he have bills and vouchers for his expenses, as well as receipts for the payment and advanc3es received the profit and loss account a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2008 was as under: "2. During the course of hearing of the appeal, the ld counsel for the assessee has invited our attention the statement of the assessee Shri Suresh Babu Ganpat Malge was recorded during the course of the search and on the basis of which, the Assessing Officer had estimated a lumpsum income of Rs. 1,50,00,000/- in the hands of Suresh Babu Ganpat Malge, the husband of the other assessee Smt Sushila Suresh Malge without taking into account the fact that voluntary disclosure made by the assessee, was later on retracted.The Assessing Officer has also made an addition in the hands of other assessee Smt Sushila Suresh Malge on protective basis, on the basis of the statement of his husband Shri Suresh Babu Ganpat Malge. The ld counsel for the assessee further invited our attention to the fact that the statements recorded by the search party, were not supplied to the assessee despite his repeated requests and the Assessing Officer made addition relying upon the same. Even till date, the copies of the statements were not supplied. The ld counsel for the assessee has further submitted that in the light of these facts, the matter should be remanded back to the file of the A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 12.2011 and considering the letter dated 29.12.2011 filed by assessee without mentioning the same in the order, repeated the same order as passed originally with the same conclusions treating assessee Shri Suresh Malge as benamidar of his wife Smt. Sushila Malge and assessed the income on the basis of statement under section 132(4) at Rs. 1,50,00,000/-, even though the said statement was stands modified/withdrawn. Therefore, assessee is again in appeal in the third round before us. 7. The learned Counsel reiterated the same submissions made earlier before the ITAT in the 2nd round that AO has not considered the contentions and repeated the additions without application of mind and pleaded for quashing the assessment order. The plea was already made earlier and recorded by the ITAT vide order Nos. IT(SS)A 8 & 9/Mum/2009 vide Para 7.2. It was his submission that AO has not only violated the principles of natural justice by not allowing assessee any opportunity to reply, but also repeated the same additions, which was subject matter of appeal twice without examining the issue on merits, even though the assessment was set aside de novo for considering the evidence seized and also file ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was taken up at the fag end of the period however, submitted that AO has utmost respect to the orders of the ITAT and as directed by the ITAT copy of the statement was given to assessee and accordingly order was passed. He relied on the findings / observations in the assessment order that AO has listed out by the investment made by assessee for which proper explanation was not given and in the absence of the explanation, was bound to complete the assessment on the basis of the statements alone. 9. We have considered the issue. We must note that it is very sad that AO without following the principles of natural justice and inspite of clear findings of the ITAT in the order dated 18.06.2010 has repeated the same orders as was done originally way back in 1998. Inspite of levying the cost of Rs. 5000/- on AO, which we were informed was paid to assessee, there is no change in the attitude of the Revenue with reference to assessees/assessments are concerned. By taking up the assessment at the fag end of the time barring period and by denying natural justice and not considering the evidence on record, assessees were forced to file appeals before the ITAT unnecessarily by incurring heavy ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be made in the hands of Shri Suresh Malge on mere conjectures, surmises and presumptions. These aspects should be examined by AO and only when there is clear evidence/findings addition of income of Smt. Sushila Malge can be made in the hands of Shri Suresh Babu, otherwise they should be examined separately/ independently without getting prejudiced by earlier orders of AO i.e. AO should determine the undisclosed income separately in respective hands. 9.5 Further, on the facts of the case we order costs to be paid to assessees. AO should pay the cost of Rs. .20,000/- to Shri Suresh Babu Malge for making him come again in appellate proceedings. This amount was fixed keeping in view that assessee has paid Rs. 10,000/- as appellate fees. In the case of Smt. Sushila Malge, AO should pay an amount of Rs. 15,000/- as cost as she has paid an amount of Rs. .5,500/- as appellate fees in her appeal. These amounts should be paid within two months from the date of the order and Revenue is free to decide whether these amounts should be recovered from the officer(s) concerned. Since the orders are being approved by a senior officer in the rank of Commissioner of Income tax, we sincerely hop ..... X X X X Extracts X X X X X X X X Extracts X X X X
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