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TMI Blog2015 (7) TMI 119X X X X Extracts X X X X X X X X Extracts X X X X ..... common in nature, these appeals are combined, heard together, and disposed of by a common order for the sake of convenience. 2. The common ground raised by the assessees in these appeals is that the Commissioner of Income Tax (Appeals) erred in confirming the addition made by the Assessing Officer when it was not provided in u/s.153A of the Act and that there was no incriminating material found during the course of search action u/s.132 of the Act. Further, it was stated by the assessee that the issue is squarely covered by the order of the Special Bench in the case of All Cargo Global Logistics Ltd 137 ITD 287 (Mum) (SB). 3. The brief facts of the case are that there was search action in these group on 2.11.2010 and consequent to this, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 0 Income Tax thereon 28,30,447 Less Rebate u/s.88C 5,000 Income tax payable 28,25,447 ITA No.2743/Mds/2014 for the assessment year 2008-09 Total income (as returned u/s153A) 1,23,55,470 Add Addition u/s.68 as discussed above 68,000 Add Undisclosed income as discussed above 30,000 Total income 1,24,53,470 ITA No.2744/Mds/2014 for the assessment year 2011-12 Total income declared by the assessee 1,34,69,681 Addition u/s.69A 10,63,043 Total income 1,45,32,724 Princeson Jose ITA No.2745/Mds/2014 for the assessment year 2005-06 Total income (as returned) 90,52,420 Add Income from undisclosed sources (as discussed) 5,30,000 T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... respect of unexplained credit, deposit into bank account and short term capital gain and disallowance u/s.40A(3) of the Act and these additions cannot be sustained. Even if the assessee agreed at the time of assessment, these additions cannot be legally sustainable. For this proposition, the ld. Authorised Representative for assessees relied on the judgment of Madras high court in the case of Mariam Aysha vs. CIT 104 ITR 381 wherein it is held that consent of the assessee cannot give jurisdiction to Assessing Officer and the taxing authorities can act only if there is power under the statute to do so. He further relied on the order of the co-ordinate bench in ITA Nos.559,560, 561, 562, 563 & 564/Mds/2014 for the assessment years 2004-05 to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... attached thereof. In our opinion, additions could be made in the case of completed assessments (assessment years which were not abated) only on the basis of incriminating material found during the course of search. Admittedly, the Assessing Officer did not found any incriminating material warranting addition. Being so, we are inclined to direct the Assessing Officer to make addition only on the basis of incriminating material if any found during the course of search. Further, regarding addition on account of cash disclosed by Sheeba Prince for the assessment year 2011-12, if the said cash belongs to her family members, addition cannot be made in the hands of the assessee (Sheena Prince) if it is disclosed in their respective return of inco ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to assessee's total income and penalty proceedings u/s.271(1) (c) of the Act were initiated and levied penalty of I1,61,733/-. Aggrieved the assessee preferred an appeal before the Commissioner of Income Tax (Appeals). 8. On appeal, the Commissioner of Income Tax (Appeals) confirmed the penalty by observing that the assessee failed to offer satisfactory explanation before the Assessing Officer with regard to the gifts amounting to I5,30,000/- supposed to have been received from one Mr. T.P. Joseph. It was also seen that the assessee could not substantiate with any cogent evidence to prove the genuineness of the gifts. Therefore, the conclusion drawn by the Assessing Officer are based on facts and sound logic. During the appellate pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the tune of I5,30,000/- to the returned income of I93,02,420/- while doing so, the Assessing Officer has asked the assessee to furnish the fresh confirmation from the donor and to prove identity and capacity f the donor. The assessee has not proved identity and capacity of the donor with any cogent evidence before the Assessing Officer. As per the explanation 1 contained in Section 271(1) (c) which is self-contained in the sense that it treats every difference between the reported and the assessed income as concealed income. But, at the same time, it provides the criteria where penalty would be warranted. Penalty was leviable for concealment, where an assessee fails to offer any explanation for the difference or offers an explanation, whic ..... X X X X Extracts X X X X X X X X Extracts X X X X
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