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TMI Blog2017 (3) TMI 435X X X X Extracts X X X X X X X X Extracts X X X X ..... ving common issues, therefore, these appeals are being disposed of by this common order. 2. First, we shall take up appeal for A.Y. 1977-78, in I.T.A. No 4244/M/12 filed on the following grounds:- The Ld. Commissioner of Income Tax (Appeals)-23 (herein referred to as CIT(A) has erred in law, facts and evidence brought on record and in not accepting the explanation of the appellant in determination of total income of ₹ 72,79,480/- and thereby upholding the demand raised by the A.O. thereon of ₹ 49,24,665/-. The Ld. CIT(A) has erred by upholding the decision of the A.O. u/s 143(3) r.w.s 254 by considering the appellant as the proprietor of the Industrial Agencies, Nagpur instead of Shri S.J. Baid based on the statement given by Shri S.J. Baid before the IT department during the search and seizure operation conducted in the premises of the appellant. The Ld. CIT(A) has erred in not considering the Dossier Report of the Department wherein the remarks prove that Tribunal order arose out of protective assessment of Mr. S.J.Baid was passed, however recovery could not be made. The CIT(A) has erred in passing the order with the assumption that there wo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is that the additions made on protective basis in the case have achieved the finality by virtue of the Tribunal s order. However, we would not like to record any finding in this regard in the absence of the order of the Tribunal. Under these circumstances, we deem it proper to restore the matter for all the three years to the assessing officer. The assessing officer is directed to bring on record the ITAT s order in the case of Shri S.J. Baid. If the additions made in the case of the assessee have been confirmed and finally brought to charge to tax in the case of Shri S.J. Baid by virtue of the ITAT order, there would be no justification whatsoever for making any addition of the same income in the case of assessee which would amount to a double addition and therefore, the additions made in the present case shall stand deleted as already held by the learned CIT(A). However, if in the case of Shri S.J. Baid this issue has been decided by the Tribunal in a different way, the A.O. shall reconsider the entire matter in the present case for all the three years after allowing adequate opportunity to the assessee and keeping in mind any direction contained in the order of the Tribunal in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 148 in the case of assessee dated 24/03/1986 wherein in para 5 of the order it is clear that protective assessment proceeding was initiated against Shri S.J. Baid. The finality of which has been achieved as per the Dossier Report. As stated by A.O. in his order that assessee has not submitted copy of the ITAT order is totally incorrect since assessee could not have the possession of the ITAT order in case of Shri S.J.Baid. Lastly A.O. has stated in his order that no cogent reason was given for rejecting the statement of Shri S.J. Baid. This is also incorrect since based on the dossier report it is clear that for the above said assessment year Shri S.J. Baid was liable to tax, however demand was not paid by him. To conclude the above assessee had stated that he was not proprietor of Industrial Agency and the real proprietor was Shri S.J. Baid. The addition made by the A.O. is incorrect since the assessee was not a proprietor of M/s Industrial agency (1975), Nagpur. Also the order u/s 143(3) r.w.s 254 was passed by the A.O based on the recorded statement of Shri S.J. Baid without bringing any evidence to prove that no order of the Tribunal in the case of S.J. Baid was passed. Assessi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l high demand appeals are required to be finalized by the end of March, 2012, it is requested that your reply may kindly be furnished within one month. If no report is received on or before 20th of January, 2012 it will be presumed that the records of the ITAT in the said matter are not traceable and the appeal shall be decided on the basis of materials available on record. No reply was received either form ITAT Mumbai or ITAT Nagpur till 09/03/2012 (or in fact even till date of this order). Accordingly, letter dated 09/03/2012 was issued to the appellant enclosing copies of the A.O. interim and final reports and letter of Addl. CIT Range 12(2), Mumbai. The appellant was also informed about the correspondence to ITAT Mumbai and ITAT Nagpur enclosing copies of the correspondence and informing him that no reply has been received from ITAT Mumbai or ITAT Nagpur. The appellant was given a final opportunity to furnish his comments on the A.O. report etc. fixing the date of hearing on 20/03/2012. The appellant was also informed that if no-compliance is made, the matter shall be finalized on the basis of materials on record. None attended on that matter till the date of passing of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n by ITAT would be to hold the income in the name of Shri S.J. Baid on protective basis. In either of the two alternative outcomes, there would not be a possibility of confirming the substantive addition in the case of Shri S.J. Baid, unless further investigation would have been carried out at the instance of the present appellant shri N.M.R. Tara, who was the interested party as substantive addition has been made in his hands. Had Shri N.M.R. Tara been an intervener in the appeals of Shri S.J. Baid, details of the outcome by way of appellate orders would have been available with the appellant and been filed in the further proceedings. Thus if by virtue of the tribunal orde r(if any), the protective addition in the case of Shri S.J. Baid have achieved finality, this would in fact strengthen the A.O. case that the substantive addition has correctly been made in the case of Shri N.M.R. Tara. Thus, unless the ITAT order specifically held the addition in the hands of Shri S.J. Baid as a substantive addition, the decision of ITAT would have no material effect in the present appellant s case (in who s hands substantive addition has been made). In these circumstances, in view of the detai ..... X X X X Extracts X X X X X X X X Extracts X X X X
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