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TMI Blog2012 (12) TMI 19X X X X Extracts X X X X X X X X Extracts X X X X ..... rder passed by CIT(A) is bad in law and deserves to be cancelled as he has passed an order without considering and appreciating the facts of case of appellant. 2(a) In law and in the facts and circumstances of the appellant's case, the provisions of the Income Tax Act under which the assessment order is framed is not applicable to the assessment in question and thus the assessment order passed is illegal and void authorities below initio. It requires to be cancelled on this ground itself. (b) In law and in the facts and circumstances of the appellant's case, the Ld. CIT(A) ought to have appreciated that assessment order passed by AO is bad in law and deserves to be cancelled. 3(a) In law and in the facts and circumstances of the appellant's case, the learned CIT(A) has grossly erred in upholding the addition of Rs.1,82,437 for undisclosed capital gain. He ought to have deleted such addition made by AO. (b) In law and in the facts and circumstances of the appellant's case, the CIT(A) ought to have appreciated that sales consideration declared by appellant is what he has actually received and ought to have held that sales consideration mentioned in seized material found from prem ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . It may be deleted. 5. In law and on the facts and circumstances of the case, the learned Assessing Officer has grossly erred in making the addition of Rs.1,15,880 for undisclosed business income when no such addition is called for. It may be deleted. 6. In law and on the facts and circumstances of the case, the learned Assessing Officer has grossly erred in making the addition of Rs.12,85,197 for unexplained cash credit when no such addition is called for. It may be deleted. 7. In law and on the facts and circumstances of the case, the learned Assessing Officer has grossly erred in making the addition of Rs.3,64,778 for undisclosed capital gains when no such addition is called for. It may be deleted. 8. In law and on the facts and circumstances of the case the learned Assessing Officer has grossly erred in charging interest u/s. 234A, 234B 234C and 234D of the I.T. Act, when no such interest is chargeable. It may be deleted. 9. In law and on the facts and circumstances of the case, the learned Assessing Officer has grossly erred in initiating the proceedings for the levy of penalty u/s. 271(1)(c) when no such penalty is leviable. He may be directed to withdraw such pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... order passed by Assessing Officer u/s. 153A/153. It is the contention of Ld. AR that admittedly no search operation was conducted at the premises of the assessee and no document was recovered from the premises of the assessee and no document was recovered from the premises of the assessee. We find that Ld. CIT(A) has not decided this issue despite a specific ground raised by the assessee and observation of Ld. CIT(A) is that the constitutional validity of provisions of section 153A/153C of the Act was challenged and any ground of appeal challenging the constitutional validity of the forming of the provisions. We find that Ld. CIT(A) has not decided this issue of his jurisdiction and validity of assessment despite the fact that of specific ground had been raised by the assessee. In view of this matter in the interest of justice, we remit back this matter to Ld. CIT(A) to decide afresh after providing reasonable opportunity of being heard to assessee. The appeal of assessee is allowed for statistical purposes." A copy of the said decision is attached herewith for your Honour's kind perusal. As the facts of the assessee's case are identical with the other group members of he assess ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 5, 96 and 113 in Jethalpur had been transacted for a consideration, much higher than was disclosed in the returns of the owners, including the append so capital gains have been understated to the extent of Rs.4,78,535/-. 5.A In pages 6 to 11 of his order, the AO discussed the status of the land in Survey No.95, 96, its acquisition by the appellant/other co-owners, its sale to Kantibhai M Patel, the disclosure made by the co-owners, including the appellant before the ADIT(Inv), of having received the consideration by cheque (and disclosed) and in cash (disclosed later). The AO pointed out that the capital gains had not been disclosed in the original return and even in the revised return on the disclosure was not full and true. The detailed questionnaire/show cause notice dated 5/11/2007, (reproduced by the AO in his order), was also served but was not responded to in any manner. The AO thereafter considered the details of the transactions as per the seized records, which were also accepted/verified as correct and authentic by Shri Kantibhai, etc., in his statements and the action taken by the co-owners of the land in this read, i.e. admission of addition therefore computed it, as p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s, the additions for household were not justified and are deleted. The related ground of appeal is allowed. (iii) In respect of the addition for business income, it was submitted that adequate opportunity was not given. Moreover, the appellant was a wholesale trader of agriculture products in name of Jalaram Trading Co. and income of Rs.34,507/- was disclosed. The audit u/s 44B was not carried out as the turnover was less than Rs.40 lakhs. The AO had vide his questionnaire dated 20/8/2007 (S.No. 17) sought the English/Hindi version of the Books of account which was answered by the appellant as 'NIL' in reply dated 2/10/2007. This led the AO to believe that proper books of account were not maintained and book results were to be rejected. However the AO has himself referred to the total turnover of Rs.30.07 lakhs as penalty the P&L Account. Thus, the Assessing Officer's insistence on books of account not being audited u/s. 44AB was misplaced. The AO has taken recourse to section 44AF without detailing how and why the other entries in the P&L Account were all cooked up/unverifiable. Thus the conclusion drawn and application of section 44AF was not justified. The addition of Rs.1,50,3 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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