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TMI Blog2015 (9) TMI 1006X X X X Extracts X X X X X X X X Extracts X X X X ..... MAR AND SHRI KUL BHARAT, JJ. For The Appellant : Shri Vijay Ranjan, AR For The Respondent : Shri Shankar Lal Meena,CIT DR ORDER PER SHRI KUL BHARAT, JUDICIAL MEMBER : This bunch of five appeals by the Assessee are directed against the common order of Ld. Commissioner of Income Tax(Appeals)-I, Ahmedabad [ CIT(A) in short] dated 12/08/2011 pertaining to Assessment Years (AYs) 2003-04 to 2007-08. Since common issues and facts are involved in these appeals, the same were heard together and are being disposed of by way of this consolidated order for the sake of convenience. 2. We take up the assessee s appeal in IT(ss)A No.578/Ahd/2011 for AY 2003-04 as a lead case since the facts are identical in all these appeals of the assessee. The following common grounds, except quantum in appeal(s), have been raised by the assessee:- (Extracted from IT(S)A No.578/Ahd/2011 AY 2003-04) Grounds of Appeal (Without prejudice to each other) 1. In law and in the facts and circumstances of the appellant's case, the CIT(A) erred in dismissing the assessee's appeal. 2. On the facts and in the circumstances of the case, the CIT(A) erred in not accepting ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 7; 8,57,350/- The Assessing Officer (AO in short) framed the assessment u/s.143(3) r.w.s.153A of the Act vide order dated 21/12/2010; thereby the AO made addition of ₹ 62,622/- on account of disallowance of expenditure being personal in nature and also made addition of ₹ 2,23,861/- on account of the expenditure towards agricultural income. The assessee feeling aggrieved by the order of the AO, preferred an appeal before the ld. CIT(A), who after considering the submissions of the assessee, partly allowed the appeal for AY 2003-04 (dismissed the appeals for AYs 2004-05 to 2007-08). Aggrieved by the order of the ld. CIT(A), the assessee is now in appeal(s) before us. 4. At the outset, the ld.counsel for the assessee submitted that the assessment orders framed for the AYs 2003-04 to 2007-08 deserves to be quashed on the ground that in these years assessments so framed was not on the basis of incriminating material. As no such material was found at the time of search. He submitted that this issue of legality of assessment u/s.153A of the Act be decided first before deciding the other grounds on merits. He submitted that the issue is squarely covered in favour of the asse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... llowability of the aforesaid expenses as business expenses alongwith necessary documentary evidences. In reply the assessee could neither justify the same nor produced any evidences. Since the assessee has not incurred the aforesaid expenses wholly or exclusively for the purpose of earning Business Income they cannot be allowed as per the provisions of section 37(1) of the Income tax Act. Therefore, the aforesaid expenses of Rs.62622/- are disallowed treating them of personal nature and added to the total income of the assessee. Penal proceeding u/s.271(l)(c) of the Income tax are initiated separately for committing default within the meaning of the section by the assessee. 4. Agriculture Income During the year the assessee has shown Gross agriculture income of ₹ 1119304/- and claimed expenses of ₹ 50000/- to have incurred thereon. During the course of proceedings the assessee was requested to produce copies abstracts of 7/12 and of bills/vouchers in respect of the income and justify the expenses incurred at lower side as compared to the agriculture income. In reply the assessee vide his submission filed on 26.11.2010, produced abstracts of 7/12 and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le. Consequentially the assessment framed u/s.153A was bad in law. The appellant on this aspect, begs to rely on following: (i) Decision of Kolkatta Tribunal is case of LMJ International Ltd.Vs DCIT (2008)119 TTJ (Kol) 214. (ii) Decision of ITAT A Bench decision dated 16.1.2009 in Departmental appeals No. 3400, 3401 3402/Ahd/2008 in Meghmani Industries Ltd. for A.Ys. 2002-03, 2003-04 and 2004-05. (iii) Decision of Delhi ITAT in case of Anil Kumar Bhatia wherein Delhi ITAT vide its order dated 01/01/2010 in ITA No. 2660 to 2665/Del/2009 as held as under: The power given by the 1st Proviso to assess income for six assessment years has to be confined to the undisclosed income unearthed during search and cannot include items which are disclosed in the original assessment proceedings. (iv) Decision of Mumbai ITAT in case of Anil P Khimani Vs DCIT wherein Hon'ble Mumbai ITAT vide its order dated 16/07/2010 in ITA No. 2855 to 2860/Mum/2008 held as under: Income Tax - Section 153A - Search conducted at the premises of the assessee - Notice u/s 153A issued - Assessee files return declaring same income as declared in original return - AO make ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the Appellant in case of Rajesh Hiralal Thakkar vs. DCIT (ITA No.3218, 3219, 3220, 3221, 3222/Ahd/2007) vide order dated30th November, 2010 after considering the decision of Shaymlata Ksushik V/s ACIT 114 ITD 305 has held as under: Having heard both the sides, we have carefully gone through the orders of authorities below. For assumption of jurisdiction u/s. 153Aof the l. T. Act only requirement is that person concerned should be searched. The requirement of detection of undisclosed income on the basis of seized material is not mandatory whereas these may be mandatory for assumption of jurisdiction u/s. 153C of the IT. Act, 1961. Admittedly, in the case before us assessee Shri Rakesh H. Thakkar was searched u/s. 132 on 9-2-2006. We therefore, found considerable force in the submissions made by the Id. D.R. that once the search is conducted, the Assessing Officer has no option but to make assessment or re-assessment for each of the six assessment years under The new procedure as provided u/s.153A of the IT. Act. In case, for some of the assessment years, assessment has already been completed in that event the Assessing Officer shall also make fresh assessment under s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lated grounds of appeal are dismissed. 5.3. The Hon ble ITAT Mumbai Bench (Special Bench) in the case of All Cargo Global Logistics Ltd.(supra), after examining the entire law, held as under:- 58. Thus, question No.1 before us is answered as under: (a) In assessments that are abated, the AO retains the original jurisdiction as well as jurisdiction conferred on him u/s.153A for which assessments shall be made for each of the six assessment years separately; (b) In other cases, the addition to the income that has already been assessed, the assessment u/s.153A will be made on the basis of incriminating material, which in the context of relevant provisions means (i) books of account, other documents, found in the course of search but not produced in the course of original assessment, and (ii) undisclosed income or property discovered in the course of search. 5.4. In the present case, the assessment pertaining to Assessment Years 2003-04 to 2007-08 had not been abated. This fact is not disputed by the Revenue. Therefore, in these years, the assessment ought to have been made on the basis of incriminating material as per the decision of the Hon ble Special ..... 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