9911796707
TMI Blog2017 (5) TMI 11X X X X Extracts X X X X X X X X Extracts X X X X ..... the assessee in part by observing that double addition cannot be made on the basis of same impounded documents.Thus, it is also pertinent to note that once the addition has been made on the basis of impounded documents towards the profit and undisclosed investment as discussed above, then in our considered view the new addition on the basis of same impounded documents cannot be made. However, it is important to note that the impugned undisclosed investment for ₹ 27,55,198/- was made in the year under consideration whereas the amount in the impounded documents is of ₹ 20,97,870/- only. Thus from the above it is clear that the investment was made over and above the amount shown in the impounded documents in the year under consideration. Therefore, the balance amount of ₹ 6,57,328/- does not arise out of the impounded documents. Hence, we find no infirmity in the order of ld CIT(A) and therefore this ground of appeal of the assessee is dismissed. - ITA. No. 1201/Kol /2013, C.O.No.92/Kol /2013, ITA. No.1202/Kol /2013, C.O.No.93/Kol /2013, ITA. Nos.1218-1222/Kol /2013 - - - Dated:- 26-4-2017 - Shri A. T. Varkey, Judicial Member And Shri Waseem Ahmed, Accountant Me ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s of seized documents marked SPB/20. Besides the turnover, the amount of peak credit was also ascertained at ₹ 11,16,323/- towards the undisclosed investment in the said business on the basis of impounded documents at page 29 marked as SPB/20. The said peak credit was added to the total income of the assessee. 7. Aggrieved assessee preferred an appeal to the Ld. CIT(A). The assessee before the Ld. CIT(A) submitted that once the profit on the undisclosed sale has been added then there was no justification for the further addition of peak credit. If it is done so then it will result to double addition of the same amount. However, the ld CIT(A) disagreed with the contention of the assessee and confirmed the order of AO by observing as under:- 9. The appellant has contested the addition made by the AO for the undisclosed investment made by the appellant in its bu. The AO has mentioned in the assessment orders that peak credit of ₹ 11,16,233/- for the assessment year 2007-08 appears at page 29 of the impounded document SPB/20. Similarly, peak credit of ₹ 19,17,196/- for the assessment year 2008-09 appears at page 17 of the impounded document SPB/19. The AO adde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ving failed to appreciate the same, direction may kindly be given for reducing the peak credit for A.Y 2007-08 by the income so assessed in the preceding years and in view of facts and Circumstances It may kindly be held accordingly. 8. The ld AR before us filed a paper book which is running from pages 1 to 184 and submitted that peak addition made by the lower authorities in the earlier assessment years 2004-05, 2005-06 and 2006-07 should be eligible for deduction from the amount of peak credit of the subsequent years. The ld CIT(A) has directed the AO for providing relief to the assessee for all the subsequent assessment years but omitted to give the direction for the year under consideration. As such the ld AR before us prayed to give the direction to the lower authorities for the relief as suggested by the ld CIT(A). On the other hand, the ld DR submitted that there is no evidence that it is the same amount of money which has been used in the undisclosed business of the assessee on rotational basis. The ld DR further submitted that there is hardly any debit or credit entries suggesting that the same fund was rotated in the undisclosed business of the assessee. The mone ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ought to tax. However on the examining the order of lower authorities we find that the addition on account of profit on undisclosed business was made in the assessment years 2007- 08 to 2009-10 only. But the addition on account of undisclosed investment was only made in the assessment year 2007-08. Therefore, there is no question of the set off of the peak credit added to the taxable income in the earlier years as no such addition was made in earlier years i.e. AYs 2004-05, 2005-06 and 2006-07. Therefore, we find no infirmity in the order of ld CIT(A). Hence, this ground of appeal of assessee is dismissed. 10. The 2nd issue raised by the assessee in ground No. 5 is that ld CIT(A) erred in confirming the order of AO by sustaining the disallowance of ₹ 6,57,328/- on account of undisclosed investment in the land. 11. During the course of assessment proceedings, the AO observed on the basis of page 37 and 1 of the seized documents marked as SPB/6 that the investment in the land for ₹ 18,79,488.00 and ₹ 26,65,918/- has been made in the year under consideration. Thus, the total investment was of ₹ 45,45,406/-. Out of the said investment the amount disclosed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t on such undisclosed .sales as well as addition on account of undisclosed investment. Under the circumstances, the cash payments as recorded in the impounded documents have to be treated as made out of the receipts recorded in such documents which have already been considered by the AO. In other words, the cash payments as recorded in the impounded documents have to be treated as explained in view of the receipts recorded in such documents which have already been considered by the AO. I agree with the appellant that no separate addition can be made on account of payments recorded in the impounded documents as they have come out of the receipts recorded in such documents which have already been considered by the AO for the purposes of taxation. However, I find that the AO has pointed out undisclosed investment of ₹ 27,55,198/- (Rs.17,53,800/- + ₹ 10,01 ,398/-) in the financial year relevant to the assessment year 2007-08. As the payments recorded in the impounded documents SPB/19 and SPB/23 fall beyond the period of the financial year 2006-07, they cannot be considered to cover the payments made in the financial year 2006-07. But then, the payments recorded in SPB/20 to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r under consideration. Therefore, the balance amount of ₹ 6,57,328/- does not arise out of the impounded documents. Hence, we find no infirmity in the order of ld CIT(A) and therefore this ground of appeal of the assessee is dismissed. 15. Coming to next issue in ground no. 1,2 3 has challenged the validity of the proceedings initiated completed u/s 153A/143(3) of the Act. For this, the assessee has raised the following grounds of appeal:- 1. For that in view of the facts and in the circumstances the Ld. CIT(A) was wholly unjustified in confirming the legality of order passed by the AO u/s 153A/143(3) and in view of the facts and in the circumstances the action of the Ld CIT(A) in such respect is wholly bad illegal and such order is liable to be quashed / cancelled / set aside and it may kindly be held accordingly. 2. Without prejudice to ground No.1 above and in view of the facts and in circumstances, the Ld. CIT(A) failed to appreciate the fact that no valid search having taken place in respect of the appellant, the proceedings so initiated by the AO u/s. 153A is void abinitio and the Ld. CIT(A) without appreciating the fact dismissed the appellant s gro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... peal filed by the Revenue are dismissed in limine on account of low tax effect. 20. In the result, Revenue s appeals are dismissed in limine. Now coming assessee s CO No.92/Kol/2013 for A.Y. 08-09. The assessee has raised the following grounds in its CO. 1. For that in view of the facts and circumstances of the case the Ld. CIT(A) was wholly wrong and unjustified in confirming the initiation of the proceeding u/s 153A of the Act and the consequential order passed by the AO u/s. 153A / 143(3) inspite of the fact that there was no specific search warrant against the appellant assessee and as such there was no valid search and further that the survey operation u/s. 133A of the Act was conducted at the premises of a third party. The proceeding us/s 153A as well as the order u/s. 153A / 143(3) of the Act are liable to be quashed / cancelled. 2. For that in view of the facts and circumstances of the case the Ld. CIT(A) was wholly wrong and unjustified in confirming the arbitrary determination of the undisclosed sales at ₹ 1,86,57,135/- made by the AO in the search assessment on the basis of certain entries in the diaries marked SPB-19, 20, 21 23 impounded from ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hearing. 21. We have already discussed the above issue in assessee s appeal in ITA 1221/Kol/2013 in para-17 of this order and taking a consistent view we dismiss the issues raised by assessee in its CO. We hold accordingly. 22. In the result, assessee s CO is dismissed. Coming to assessee s appeal in ITA No.1222/Kol/2013 for A.Y 08-09. 23. At the outset it was observed that we have already discussed the issue of legality of the order passed by the AO u/s 153A/143(3) of the Act in ITA No.1221/Kol/2013 of assessee s appeal in para-17 of this order. Hence, both parties are agreed whatever view taken in assessee s appeal (ITA No.1221/Kol/2013) may be taken in this appeal also. We hold accordingly. 24. Next issue raised by assessee in Ground No. 4 is that Ld. CIT(A) failed to give the effect of the peak credit added in earlier years while determining the peak credit for the current year. 25. At the outset, it was observed that the instant issue raised by the assessee is not arising out of the order of AO. Therefore the same is dismissed as infructuous. 26. Last issue is general in nature and needs no separate adjudication. 27. In the result, assessee s appeal ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
