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TMI Blog2014 (5) TMI 427X X X X Extracts X X X X X X X X Extracts X X X X ..... support or relevance to any incriminating material whatsoever – the view of the CIT(A) in admitting the additional evidence is perfectly valid and tenable - No infirmity thereto can be found - the AO cannot sit over the requisition of a superior appellate authority - CIT(A) for submitting the directed remand report - the record reflects that no adverse comments are offered by the assessing officer on the additional evidence and merits - the books of accounts are duly audited - no specific or general fault is indicated by the AO - there is no reliance on any incriminating material – there was no infirmity the order of CIT(A) in deleting the additions – Decided against Revenue. - ITA Nos. 4667 & 4668/Del/2012, C.O. Nos. 445 & 446/Del/2012 - - - Dated:- 30-4-2014 - Shri R. P. Tolani And Shri D. K. Srivastava,JJ. For the Petitioner : Shri Satpal Singh Sr. DR For the Respondent : Shri Gautam Jain FCA ORDER Per R. P. Tolani, J.M:- These are two appeals filed by the revenue against separate orders of CIT(A)-XXXI, relating to A.Y. 2003-04 2004-05 with corresponding cross-objections by the assessee arising from the same proceedings i.e. 153C. These dispose ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the income of the assessee: 3.1. Aggrieved, assessee preferred first appeal, where apropos the legality of additions the assessee contended as under: With regard to Ground no 3(i), the appellant has sought to challenge the Assessment Order passed by the AO being bad in law. The appellant has submitted that the order is bad in law because no incriminatory papers/ materials/ documents/ information's Were found during the 'search operation and the assessment u/s 153C was completed without taking in to consideration the seized material and documents found during search. The addition made were outside the search materials and fresh assessment or reassessment are against the provision of section 153C of the Act itself as such the assessment passed making additions outside search material and changing of opinion from the earlier orders passed by the Department is illegal and bad in law The assessment order passed u/s 153C is in pursuance to search carried out at the premises of the assessee at New Delhi and in the case of Rajdarbar Group u/s 132 of the Income Tax Act, 1961 on 31 072008 and during the search operation, no such material was found which leads him to exercise ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... port its book results. All evidence was forwarded to the assessing officer for his comments. CIT(A) has recorded that despite several reminders assessing officer did not reply to the requisition of remand report including a final notice. In the peculiar circumstances CIT(A) admitted the additional evidence by following observations: 53.1 I have considered the submission, perused the order of assessment and, evidences on record. The dispute, as raised by the appellant, pertains to the additions on account of estimation of income @ 5% on the sale of shares amounting to Rs.22,17,375/- During the assessment, AO has asked to file the relevant papers and in the absence of these papers, the AO has passed the order u/s 144. In this respect AR of the appellant has submitted that appellant group has got control of this company after the AY 2003-04 and therefore they were unable to submit the required documents during the assessment proceedings. The appellant was prevented by sufficient cause from producing the evidence which he was called upon to produce by the Assessing Officer and as per the AR of the appellant these documents have been received now and has been produced as additional ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (2011) 145 TTJ 340], ITAT Calcutta has held that ad hoc disallowance of 10 per cent of the general expenditure and interest expenses for asst. yrs. 2002-03 to 2008-09 made by AO by observing that additions on account of disallowance of interest and common expenses did not emanate from incriminating material found during the course of search, the same could not be disturbed and the said issues could not be subject-matter of consideration for proceedings under s. 153A The department has used its long arm of search and seizure and there is no justification to make the assessment u/s 144 for want of details. The documents and details filed as additional evidence during appellate proceedings has been sent to the AO for comments, however no comments were received despite reminders. These details could not be furnished at the time of assessment due to reasons beyond control of the appellant as has been stated in para 5.31 above. In absence of response, the admissibility of the additional evidence cannot be rejected without reason The AO has also not commented on merits of the submission of the appellant Therefore, the addition of RS.22, 17,375/- made on presumptive basis cannot be sust ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d above that while making the assessment or reassessment, in block assessment u/s 153A or 153C no addition can be made in the absence or reference to any incriminating material qua the addiitons. 5.1. Apropos revenue s ground about additional evidence it is pleaded that DR has not disputed the fact that at the time of search the assessee company s management was headed by a different group, which was succeeded by the present incumbent. This difficulty was communicated to the assessing officer, which also remains controverted, thus assessee was prevented by a sufficient cause in defending its case. By the time of appeal the assessee after marathon efforts could procure the relevant information which was duly filed before CIT(A) in the form of additional evidence. This was duly forwarded by ld. CIT(A) to assessing officer for remand report in accordance with law. In fact assessing officer has defied the power of ld. CIT(A) and committed an act of insubordination inasmuch as he did not care or bother to ask for any time or send any reply for the remand report, which is further evident from the fact that CIT(A) issued a final notice to file a remand report. The A.O. turned deaf year ..... X X X X Extracts X X X X X X X X Extracts X X X X
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