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TMI Blog2015 (1) TMI 58X X X X Extracts X X X X X X X X Extracts X X X X ..... re made u/s. 158BC - The undisclosed income can be computed only on the basis of material found as a result of search and such other enquiry relating to such material - During the course of search, no material is found which suggests that the assessee has incurred unaccounted expenditure by way of commission for so called sales transactions - Thus, no part can be included in the computation as undisclosed income for the block period - after going through the orders passed by the Revenue Authorities along with the documentary evidence filed by the parties, the documentary evidence filed by both the parties requires thorough examination at the level of the AO afresh under the law – thus, the matter is remitted back to the AO for fresh adjudication after considering the documentary evidence, as per law – Decided in favour of assessee. - I. T. (SS)A. No. 160/DEL/2006, IT(SS)A. No. 24/Del/2010 - - - Dated:- 20-11-2014 - Shri H. S. Sidhu And Shri T. S. Kapoor,JJ. For the Petitioner : Sh. Gautam Jain, CA Piyush Kumar Kamal, Adv. For the Respondent : Ms. Shulekha Verma, CIT(DR) ORDER Per H. S. Sidhu : JM. These are the appeals filed by the Assessee emanate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and arrived at satisfaction that the assessee had not disclosed its income. That the Ld. CIT(A) has further erred in assuming that satisfaction was recorded that too in writing which inspite of repeated requests have not been made available to the assesseee. 7. That the Ld. CIT(A) has erred both in law and on facts in upholding an aggregate addition of ₹ 25,12,076/- u/s. 69 of the I.T. Act being alleged commission income earned by calculating @0.5% on the amount of alleged purchases made against Form ST-35 for block period from concerns of JMD Group by failing to appreciate that no such addition could have been sustained on the facts of the instant case. 8. That the findings recorded that appellant has admitted that such purchases are not genuine purchases and the transactions were shown just to earn commission of 0.1% to 0.7% is highly insufficient to warrant such an addition which is otherwise not legally tenable and justified on the facts of the instant case. 9. That the Ld. CIT(A) has erred in holding the charge of interest u/s. 158BFA is consequential in as much as no such interest was warranted on the facts of the instant case. 3. The ground raised in IT(SS ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... JMD group of cases, the issue of sales made by JMD group to various parties against Form ST-35 was examined and addition on account of commission was made. 5. Against the order of the Assessing Officer, assessee appealed before the Ld. CIT(A), who vide impugned order dated 2.3.2005 dismissed the appeal of the assessee. 6. Against the aforesaid order dated 2.3.2005 passed by the Ld. CIT(A), assessee appealed before us. 7. Ld. Counsel of the assessee in support of his contention filed a Paper Book containing Pages 1 to 76 having Synopsis in Brief, and copies of various orders of the Tribunal and other authorities and other documentary evidence supporting his version / arguments. During the hearing Ld. Counsel of the assessee draw our attention towards the assessment order dated 31.8.2004 passed by the AO under section 158BD read with section 158BC of the I.T. Act. He also draw our attention to the facts of the case of the assessee and mainly stated that the addition in dispute has been made without any basis and evidence. Therefore, the addition so made is unsustainable. He further stated that the impugned order of assessment is based on the contentions made in the case of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s a poor person and could not pursue the matter in a proper manner before the lower authorities. Therefore, some more opportunity may be given to the assessee before the AO to substantiate his claim. 8. We have heard both the counsel and perused the records especially the orders of the lower authorities, synopsis in brief filed by the assessee s counsel and copies of judgments and Paper Books filed by the Ld. DR. We find that as per the arguments of both the parties it an admitted fact that both the parties reiterated and relied on the contents of para 7 of the ITAT s order dated 23.6.2006 passed by the ITAT, Delhi Bench F , New Delhi in the case of DCIT vs. M/s Sanjay Traders Ors. in ITA No. 445 446/Del/2003 (BP: 1.4.90 to 6.7.2000) which is reproduced hereunder for the sake of convenience. 7. We have considered the rival submissions. It is the AO who relied on the submissions of three parties. Thus, three parties are witnesses of the revenue rather than of the assessee. At no point of itme, the assessee has made a statement that the transactions are not genuine. Since there is no such statement by the assessee, the question of retraction do not arise, it is settled prin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e view that both the parties mainly relied upon the order dated 23.6.2006 passed by the Coordinate Bench of the Tribunal Delhi Bench F , New Delhi in the case of DCIT vs. M/s Sanjay Traders Ors. in ITA No. 445 446/Del/2003 (BP: 1.4.90 to 6.7.2000 and emphasis on the retracing statement of the assessee. We are of the view that documentary evidence filed by both the parties requires thorough examination at the level of the Assessing Officer afresh under the law. Accordingly, in the interest of justice, the issues raised in this appeal are set aside to the file of the Assessing Officer with the direction to decide the issue in dispute afresh after considering the documentary evidence, as per law. Needless to add that the assessee should be given adequate opportunity of being heard. Hence, the IT(SS)A No. 160/Del/2006 stand allowed for statistical purposes in the aforesaid manner. IT(SS)A No. 24/Del/2010 10. Since we have already set aside the assessment order to the file of the Assessing Officer as aforesaid, the penalty imposed u/s. 158BFA(2) of the I.T. Act in this appeal has now become infructuous and does not survive in the eyes of law. Hence, the same is dismissed being ..... X X X X Extracts X X X X X X X X Extracts X X X X
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