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TMI Blog2013 (10) TMI 1419X X X X Extracts X X X X X X X X Extracts X X X X ..... ring the course of search - whether cash seized should have been adjusted against the advance tax payable in view of Sec. 132B of the Act and no interest should have been levied u/s. 234B and 234C of the Act - Held that:- The Learned Counsel fairly admitted that no specific request was made by the assessee for adjusting the seized cash. In our opinion, if the assessee has not requested the Department for adjustment of the seized cash, in such situation the assessee cannot escape from the levy of interest u/s. 234B and 234C of the Act. Addition towards the low house hold expenditure - Held that:- Assessing Officer has passed the order u/s. 154 on 03-02-2010 and reduced the addition as there was a mistake in the tabulation. The Ld. CIT(A) gave the relief by 50% reducing the addition. It is true that the addition on account of short house hold expenditure is not based on any concrete material but the reasons given by the Ld. CIT(A) are quite elaborate to support his order and we accordingly sustain the addition. - ITA No. 1134/PN/2012, ITA Nos. 1135 & 1136/PN/2012, ITA Nos. 1137 & 1138/PN/2012, ITA No. 1139/PN/2012 - - - Dated:- 29-10-2013 - SHRI G. S. PANNU, ACCOUNTANT MEMBER ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lso have been completed u/s. 153A(b) of the Act and not u/s. 143(3) of the Act. In support of the said proposition, the assessee relied on the decision of the Hon'ble High Court of Kerala in the case of Dr. K.M. Mahaboob Vs. DCIT Anr. (2012) 76 DTR (Ker) 90 as well as the decision in the case of DCIT, Circle-1(1), Ujjain Vs. Sushil Kumar Jain (2010) 127 ITD 264 (INDORE). In this case, a search and seizure action u/s. 132(1) of the Act has been carried out on 18-04-2007 and which was concluded on 20-04-2007. In respect of A.Y. 2008-09 assessment of the assessee has been completed u/s. 143(3). 4. From the assessment order it is seen that no notice u/s. 153A for filing of the return of income has been issued to the assessee. The identical issue has been considered by the Tribunal in the case of Shree Amritsingh J. Bindra Ors. Vs. Income Tax Officer (Central), Nashik being ITA Nos. 329 to 332/PN/2012, ITA Nos. 377 378/PN/2012, ITA Nos. 379 380/PN/2012, ITA Nos. 381 to 383/PN/2012, ITA Nos. 1050 1051/PN/2012, ITA No. 1052/PN/2012, ITA No. 29/PN/2013, ITA No. 30/PN/2013, ITA No. 31/PN/2013, ITA No. 33/PN/2013, ITA No. 868/PN/2013 and ITA No. 872/PN/2013 . In t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r 2009-10 is concerned, in the additional statement it has been stated thus : 2. In para No. 3 of the reply-affidavit the petitioner is trying to establish that the assessment made for asst. yr. 2009-10 is illegal since the assessment should have been made only from asst. yr. 2003-04 to asst. yr. 2008-09 i.e. fox six assessment years only and not for asst. yr. 2009-10. This argument is wrong for the following reasons: (a) As per the provisions of the Act the assessment in such cases shall be made for six assessment years immediately preceding the assessment year relevant to the previous year in which the search is conducted or requisition is made. The relevant search in this case was conducted in the financial year 2008-09 which is relevant to the asst. yr. 2009-10. Hence, the six assessment years will be 2003-04, 2004-05, 2005-06, 2006-07, 2007-08 and 2008-09. Accordingly notices under s. 153A r/w s. 153C were issued for these years. (b) As per the existing instructions all search and seizure cases have to be compulsorily scrutinized for the relevant assessment year. That means the assessee's assessment for the asst. yr. 2009-10 had to be completed under s. 143 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... B and 153C ? So far as the time limit for assessment is concerned, it is provided in Sec. 153B(1)(b). The Ld Counsel fairly admitted that the assessment is completed as per the time limit as povided in the said proviso i.e. within the period of 2 years from the end of F.Y. 2004-05 as admittedly, the assessment is completed on 29.12.2006. Hence, the A.O has made the compliance of the mandatory condition in completing the assessment as provided u/s. 153B(1)(b) of the Act. 10. Then next question which arises for consideration is whether the A.O has considered the seized material found during the course of search for framing the assessment of the assessee or not. We find that the A.O has considered the seized material found during the course of search and the assessment is not merely based on the books of account and record produced by the assessee during the course of the assessment proceedings. What is to be seen in the substance of the assessment order and not merely format of an order. In our opinion, merely because Sec. 143(3) is typed by the A.O but otherwise, the substance of the assessment is in conformity that the assessment as contemplated u/s 153A 153B, the assessment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... om the debtors to whom said sale was made. The figures were available for the period 01-04-2007 to 17-04-2007. The maximum outstanding amount receivable from such parties was worked out on the basis of the seized note book and the Assessing Officer considered the peak of the credit on 03-04-2007 which was ₹ 3,62,263/-. The Assessing Officer treated the said amount as assessee's minimum investment and made the addition of ₹ 4,50,000/- as unexplained seed capital for doing the unaccounted sales. The assessee carried the issue before the Ld. CIT(A) but without success. 7. We have heard the parties. The contention of the assessee is that the assessee sell the goods to the customers known to him personally and has business relation by making temporary noting on production of permit on wholesale basis @ 9 bottles per permit and collects the amount before closing of the business hours. The contention of the assessee is that noting in a diary is for remembrance only which are remained to be cancelled and it is not a credit sale. In sum and substance, the contention of the assessee is that there is no credit sale at all, as during the day itself the amount is collected. W ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ting the claim of the appellant regarding levy of interest under S. 234B and 234C of the Act especially in view of the fact that the cash seized during the course of search action was required to be adjusted against advance tax payable in view of S. 132B of the Act. The levy of interest u/s. 234B and 234C be reduced accordingly. 12. The Learned Counsel submits that the assessee is not pressing the Ground No.1. As Ground No. 1 is not pressed, the same is dismissed as not pressed . 13. Now the only ground which remained for adjudication is Ground No. 2 which reads as under: 1. On the facts and circumstances of the case and in law the Ld. CIT(A)-Kolhapur was not justified in rejecting the claim of the appellant regarding levy of interest under S. 234B and 234C of the Act especially in view of the fact that the cash seized during the course of search action was required to be adjusted against advance tax payable in view of S. 132B of the Act. The levy of interest u/s. 234B and 234C be reduced accordingly. 14. The issue is regarding non adjustment of the seized cash against the advance tax payment. In this case also, we find that no request was made by the assessee for a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Court in the case of Sargam Cinema Vs. CIT (supra) and by the decision of the Hon'ble High Court of Gujarat in the case of Goodluck Automobiles (P.) Ltd. Vs. ACIT (supra). We, therefore, allow the Ground No. 1 respectfully following the principles laid down in the above referred decisions and delete the addition of ₹ 92,000/-. 17. Ground No. 2 is not pressed hence, the Ground No. 2 is dismissed as not pressed . 18. So far as the Ground No. 3 is concerned the grievance of the assessee is that in this year i.e. A.Y. 2008-09, as the search action was conducted on 18-04-2007 and concluded on 20-04-2007, the assessment should have been made u/s. 153A(b) and not u/s. 143(3). The identical issue has been decided by us in this order in ITA No. 1134/PN/2012 i.e. Sou. Divya Jayram Meghani Vs. DCIT, Central Circle, Kolhapur. Following reasons given in the said case, we dismiss the Ground No. 3. 19. So far as the Ground No. 4 is concerned the grievance of the assessee is that the seized cash was not adjusted towards the payment of the advance tax. Admittedly, no specific request was made by the assessee. The identical issue has been decided against the assessee in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on as there was a mistake in the tabulation. The Ld. CIT(A) gave the relief by 50% reducing the addition. It is true that the addition on account of short house hold expenditure is not based on any concrete material but the reasons given by the Ld. CIT(A) are quite elaborate to support his order and we accordingly sustain the addition. We find no merit in Ground No. 1 taken by the assessee. Accordingly, same is dismissed. 22. So far as Ground No. 2 is concerned it is in respect of addition of ₹ 2,10,000/- made on the basis of DVO report. The identical issue has been considered in this case for A.Y. 2008-09 in ITA No. 1136/PN/2012, Sou. Preeti Uddhav Meghani. Following the reasons given therein for deleting the addition, in this year also we delete the addition and allow Ground No. 2. 23. So far as the Ground No. 3 is concerned the identical issue has been decided in the case of another family member in A.Y. 2008-09 Sou. Preeti Uddhav Meghani being ITA No. ITA No. 1136/PN/2012. Following the reasons on this issue, we dismiss the Ground No. 3. In the result, the assessee's appeal for the A.Y. 2007-08 is partly allowed. ITA No. 1138/PN/12, Shri Jayram Varadmal Meghan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ue has been decided by us in assessee's own case in the A.Y. 2007-08. Following the reasons given in the said year, we dismiss the Ground No. 4. In the result, the appeal for the A.Y. 2008-09 is dismissed. ITA No. 1139/PN/12, Shri Uddhav Varadmal Meghani (A.Y. 2008-09) 28. In this appeal, the assessee has taken the following grounds: 1. On the facts and circumstances of the case and in law the Ld. CIT(A)-Kolhagyr.jA|as not justified in estimating house-hold expenses of the appellant /- in the absence of any seized materials found in the search it is sine-qua-non for framing assessments under S. 153A(b) of the . The estimated confirmed addition be quashed. 2. On the facts and circumstances of the case and in law the Ld. CIT(A) Kolhapur was not justified in confirming the addition made by A. 0. of ₹ 92,000/- being difference between valuation made by DVO and the investment recorded in the books of account in the immovable property. The valuation made by DVO resorting to provisions of S. 142A(1) is only based on estimated valuation. It cannot be called actual undisclosed income for assessment u/s 153A(b) of the Act. The addition be deleted. 3. On the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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