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TMI Blog2017 (3) TMI 1462X X X X Extracts X X X X X X X X Extracts X X X X ..... ith regard to addition of Rs. 25,15,816/- which was made by the Assessing Officer with the aid of section 68 of the Income Tax Act, 1961 on account of un explained cash deposits by the assessee in Mahila Vikas Co-operative Bank. 4. With the assistant of Ld. representatives we have gone through the record carefully: We find that the appeal of the Revenue was presented on 08.04.2011. On 10.12.2015 the CBDT has issued Instructions bearing No. 21/2015 prohibiting its subordinate authorities from filing of the appeal to the Tribunal against the order of the CIT(A) where the tax effect by virtue of the relief given by the CIT(A) is less than Rs. 10 lakhs. The instructions have been made applicable with retrospective effect, meaning thereby, these instructions are applicable on pending appeals also. In the present case, total penalty addition by the ld.CIT(A) is of Rs. 25,15,816/- which was challenged by the Revenue in the present appeal. In accordance with the above CBDT Circular the tax effect on the impugned additions would be less than Rs. 10 lakhs, and therefore, the present appeal of the Revenue deserves to be dismissed being treated to be filed in violation of CBDT Instructions. F ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der in each assessment year. The additions made by the Assessing Officer and the noted by the CIT(A) in each year read as under. Assessment Year 1999-2000 1. Unexplained cash credits introduced as gifts in capital account Rs.2,30,000/- 2. Deposits Rs. 49,000/- Total Rs.2,70,000/- Assessment Year 2000-01 1. Unexplained cash credits introduced as gifts in capital account Rs.2,00,00/- 2. Sale of Jewellery Rs. 21,838/- 3. Cash credits from Gopinath Industries Rs.2,50,000/- 4. Total deposits in bank a/c Rs. 50,000/- Rs.5,21,838/- 5. Undisclosed investment in construction of residential house Rs.16,71,439/- Total Rs.21,93,277/- Assessment Year 2002-03 1. Unexplained cash credits introduced as gifts in capital account Rs.1,00,00/- 2. Cash deposit in bank account Rs.3,99,517/- Rs.4,99,517/- 3. Undisclosed investment in construction of residential house Rs. 1,933/- Total Rs.5,01,450/- Assessment Year 2003-2004 1. Unexplained cash cred ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lant whether to file the paper books or pursue hearing without filing any paper book. 12. Apart from all these things small additions have been made and the appeals are lying in the Tribunal without any plausible reasons. They are on the board since 03/03/2015 and have been adjourned almost 10 times in the past. 13. Apart from the above, had there been any mention of seized material in the assessment orders we would have appreciated the stand of Ld.CIT DR. In paragraph four of the assessment order, while taking note of additions required to be made, Ld. Assessing Officer has made reference to profit and loss accounts balance sheet and capital account. He has not made reference to any material found during the search. 14. In the capital account he noticed the cash deposits made by the assessee which were received by her as a gift. The additions have been made on the grounds that assessee failed to fulfill the conditions enumerated in section 68 of the Income Tax Act, 1961. Therefore we did not granted adjournment to the Ld. CIT,DR. 15. Admittedly these are search assessment years wherein assessment orders have been framed under section 153A of the Income Tax Act after the search ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o says that such revival shall cease to have effect if such order of annulment is set aside. Thus, any proceeding of assessment or reassessment falling within the six assessment years prior to the search or requisition stands abated and the total income of the assessee is required to be determined under section 153A of the Act. Similarly, subsection (2) provides for revival of any assessment or reassessment which stood abated, if any proceeding or any order of assessment or reassessment made under section 153A of the Act is annulled in appeal or any other proceeding. 16. Section 153A bears the heading "Assessment in case of search or requisition". It is well settled as held by the Supreme Court in a catena of decisions that the heading of the section can be regarded as a key to the interpretation of the operative portion of the section and if there is no ambiguity in the language or if it is plain and clear, then the heading used in the section strengthens that meaning. From the heading of section 153, the intention of the legislature is clear viz., to provide for assessment in case of search and requisition. When the very purpose of the provision is to make assessment in case of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Shri Rohit P. Modi and Smt. Pareshaben K. Modi during the search as well as the copies of the documents upon which the department placed reliance for the purpose of making the proposed addition as well as the copy of the explanation given by Shri Rohit P. Modi and Smt. Pareshaben K. Modi regarding the on-money received, copies of the assessment orders in case of said persons and also requested the Assessing Officer to permit him to cross-examine the said persons. The Assessing Officer issued summons to the said persons, however, they were out of station and it was not known as to when they would return. In this backdrop, without affording any opportunity to the assessee to cross-examine the said persons, the Assessing Officer made the addition in question. 18. In this case, it is not the case of the appellant that any incriminating material in respect of the assessment year under consideration was found during the course of search. At the relevant time when the notice came to be issued under section 153A of the Act, the assessee filed its return of income. Much later, at the fag end of the period within which the order under section 153A of the Act was to be made, in other words, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... v. Jayaben Ratilal Sorathia (supra) wherein it has been held that while it cannot be disputed that considering section 153A of the Act, the Assessing Officer can reopen and/or assess the return with respect to six preceding years; however, there must be some incriminating material available with the Assessing Officer with respect to the sale transactions in the particular assessment year. 20. For the foregoing reasons, it is not possible to state that the impugned order passed by the Tribunal suffers from any legal infirmity so as to give rise to a question of law, much less, a substantial question of law, warranting interference. The appeal, therefore, fails and is, accordingly, dismissed." 16. In the light of above, let us examine the facts from the assessment orders. In A.Y. 1999-2000 Ld. Assessing Officer has made following observations: "4. Unexplained credits in Capital A/c and cash Credits: 4.1 on perusal of the copies of Profit & Loss Account, Balance Sheet and Capital A/c, filed along with the return of income, it is noticed that during the year the assessee has shown the following gifts and deposits: Gifts: 1. Sonal Bhatt - Rs.100000/- 2. K.L. Thakka ..... X X X X Extracts X X X X X X X X Extracts X X X X
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