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TMI Blog2012 (10) TMI 100X X X X Extracts X X X X X X X X Extracts X X X X ..... o question of computing the assessee’s total income at Rs.59,22,551 (42,03,882 + 17,18,669). Thus, both the amounts of income are hereby deleted. - ITA No.48 & 35/Agr/2012 - - - Dated:- 28-9-2012 - SHRI BHAVNESH SAINI, AND SHRI A.L. GEHLOT, JJ. Assessee by : Shri Vithal Das, Advocate. Revenue by : Shri Waseem Arshad, Sr. D.R. ORDER PER A.L. GEHLOT, ACCOUNTANT MEMBER: These are cross appeals filed by the assessee and Revenue against the order dated 12.07.2011 passed by the ld. CIT(A)-I, Agra for the A.Y. 2005-06. 2. The assessee has raised the following grounds of appeal : 1. Because the authorities below, having categorically admitted, non-service of notice either u/s 142(1) or any show-cause notice, as stipulated in provisos to section 144(1), the assessment as framed u/s 148/144 of the Act was liable to be quashed as bad-in-law. 2. Because the initiation of proceedings u/s 147/148 mandated self-satisfaction of the AO himself which is absent in the instant case under appeal. The assessment as framed u/s 148/144 on dictates of the CIT(A) is liable to be declared void in law on this score as well. 3. The Revenue has raised the following grounds ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s.27,15,299/- as the same was shown in the Balance Sheet and reduced the unexplained investment to Rs.17,18,669/- (27,15,299 - 9,96,630). The CIT(A) has also directed in terms of section 153(3) Explanatin-2 of the Act that this undisclosed investment was detected as a result of search conducted in the assessee s premises on 16.09.2004 pertaining to A.Y.2005- 06. Therefore, this sum of Rs.17,18,669/- of undisclosed investment be added in the income of the assessee in A.Y. 2005-06. On the basis of direction of CIT(A) in A.Y. 2004-05, the A.O. issued notice under section 148 of the Act dated 04.12.2009. The A.O. made addition of Rs.17,18,669/- on account of undisclosed investment in the property. The A.O. computed the total income taking basis of income assessed under section 143(3) on 29.12.2006. The relevant calculation of the A.O. is reproduced as below:- (page noa.3) 1. Income assessed u/s 143(3) on 29.12.06 Rs.42,03,882/- 2. Addition u/s 69B as discussed above Rs.17,18,669/- Total Income: ------------------ Rs.59,22,551/- ------------------ 6. The assessee filed appeal against th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... therefore, the addition of Rs.17,18,669/- is confirmed and hence ground no.3 6 taken by the appellant is dismissed. 8. The Assessee and Revenue both are in appeal against the order of the CIT(A). The additional ground of appeal of assessee is legal in nature after decision pronounced by I.T.A.T. in case of assessee in A.Y. 2004-05. Ld. Departmental Representative has no objection of admission of the same. In this view of the matter, additional ground raised by the assessee is admitted. 9. After hearing the ld. Representatives of the parties, we find that in the impugned assessment order dated 16.08.2010 for A.Y. 2005-06, in reopening the assessment the A.O. taken income assessed under section 143(3) in original order dated 29.12.2006 at Rs.42,03,882/-. The CIT(A) vide order dated 29.10.2010 and appeal filed against original order of the A.O., deleted the said addition. Therefore, there is no question of taking this amount as a basis for computing the total income in reopening assessment under section 147 when this addition has already been deleted by the CIT(A) which was made in original assessment by the A.O. Both the parties did not dispute as regards to the facts of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ove direction, also decided other issues in favour of the assessee holding that the income of the assessee is eligible for exemption u/s. 10(23C)(iiiad) of the IT Act. The ld. CIT(A) while specifically deleting the addition of Rs.38,59,928/- also applied the above provision by holding that the income of the assessee since was exempt, therefore, no addition could be made against the assessee. There is no cross appeal filed by the Revenue challenging the above finding of the ld. CIT(A) in the impugned order. When this appeal was heard on 23.02.2012, the ld. DR on going through the above finding of ld. CIT(A) in favour of the assessee submitted that the department intends to file the cross objection. Though this request was made belatedly, but in the interest of justice, the department was granted time to file cross-objection, if any, and appeal was adjourned to 21.03.2012. When the appeal was taken up for hearing on 21.03.12, the ld. DR submitted that steps have been taken for filing the cross objection on behalf of the department and the department would not seek further adjournment in this matter. Therefore, last opportunity was granted to the department to do the needful and the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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