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TMI Blog2015 (10) TMI 796X X X X Extracts X X X X X X X X Extracts X X X X ..... the source of the mistake. The impugned mistake, if at all, did not attribute to Tribunal. Moreover, the matter was decided not only because of that reason but it was decided on the merits of the case. It is clear that a finding was given in the case of the Individual that the impugned addition was merely on surmises and conjecture. While computing the brokerage income, the AO had estimated the same and that too found to be on presumption. Therefore, a question was raised during the course of hearing that in a situation when a substantive addition could not be upheld in the hands of the individual then how it is possible to uphold a “protective addition” pertaining to the same income. The impugned income was once deleted on merits from ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . R. ORDER Per Shri Mukul Kumar Shrawat, Judicial Member This Misc. Application has been filed by the Revenue Department on 16.09.2011 arising from the order of the Tribunal dated 22nd of January, 2010. In this Misc. Application, the main grievance of the Revenue was that the Tribunal has wrongly noted that the addition was confirmed by learned CIT(A) in the individual case. For ready reference, relevant portion of the Misc. Application is hereby reproduced. Brief facts of the case are that search action u/s 132 of the Act was carried out at the various premises of Shri Sendhabhai M Desai and others on 28.08.1997. Certain incriminating documents annexed as A-37 (loose paper file) were found and seized from SABERA Hotel Pvt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct or indirect nexus and/or connection with alleged land transactions and acted as a broker and also relying upon various judicial pronouncements. The Hon'ble ITAT vide order no. IT(SS) A No. 154/AHD/2006 dated 22.01.2010 in case of the assessee (AOP) quashed the Block assessment proceedings u/s. 158 BD of the IT Act, resulting in deletion of all additions. The Hon'ble ITAT vide para No. 19 and 20 of the order stated that the addition was admittedly confirmed by the Ld. CIT(A) in his individual case. Thus on the date of initiation of block assessment proceedings under section 158BD, in the case of AOP on 06.01.2003, there was no doubt about who is to be assessed in respect of the same seized material found during the course of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ondent-assessee, learned AR, Mr. Anil Kshatriya appeared. His first plank of argument was that no mistake at all was committed by the Tribunal. The question before the Tribunal was that whether on the facts and circumstances of the case, the AO was justified in passing block assessment order u/s.158BD on protective basis in the case of the AOP. That question was discussed at length. The Tribunal in paragraph 19 has noted that the impugned protective assessment was made in the hands of the AOP on the basis of a statement made by Sri Sendhabhai M. Desai. That statement was recorded at the time of search conducted on 28.08.1997. However, the Tribunal has given a clear finding that although the AO had noted the gist of the statement but that di ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e have heard both the sides at some length. We have noted that the alleged mistake, if any, had not emanated from the order of the Tribunal. In fact, learned CIT(A) at page 16 in order dated 24.03.2006 in the case of the AOP has made an observation that the concerned CIT(A) in the case of Sendhabhai M. Desai, Individual, has confirmed the addition. In fact that was the source of the mistake. The impugned mistake, if at all, did not attribute to Tribunal. Moreover, the matter was decided not only because of that reason but it was decided on the merits of the case. Undoubtedly, it is correct that vide an order in the case of Mr. Desai in individual capacity learned CIT(A)-IV, Ahmedabad, vide order dated 12th April, 2000 had deleted the impugn ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ertaining to the same income. The impugned income was once deleted on merits from the hands of the Individual, therefore on those very reasoning that very addition was deleted by the Appellate Authority from the hands of the AOP. Even, the Respect Co-ordinate Bench has examined all those aspects on merits and thereupon after analyzing few case laws have came to the conclusion that the AOP was not in existence and therefore, the addition was wrongly made. Even, if we consider the grievance of the Revenue Department that the Tribunal has committed a mistake by wrongly recording a fact about the confirmation of addition in Individual capacity by learned CIT(A), but then simultaneously other fact shall also remain intact that the Tribunal has g ..... X X X X Extracts X X X X X X X X Extracts X X X X
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