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TMI Blog2017 (10) TMI 1237X X X X Extracts X X X X X X X X Extracts X X X X ..... and substantiate the claim of assessee and these grounds of appeal may also be restored to the file of AO with the direction to allow the assessee to explain about the seizure of cash and jewellery. On the other hand, the ld. DR for the Revenue supported the order of authorities below and would argue that the assessee has not appeared before the AO on a number of appointed dates and asked for adjournment. The assessee started to appear at the fag end of the year when the time period for passing the assessment order was knocking. However, on our specific query, the ld. DR for the Revenue agreed that he has no objection, if the grounds of appeal are restored to the file of AO. However, it was prayed that assessee be directed to fully co-operate and to provide the full detail and not to drag the proceeding unnecessary. Considering the contention of both the parties, the ground no.1 &2 are restored to the file of AO to decide both the ground afresh in accordance with law. The assessee is directed to provide full detail and information which may be required by AO and not to take the adjournment without legitimate ground. X X X X Extracts X X X X X X X X Extracts X X X X ..... account of unexplained investment u/s 69, without appreciating that above jewellery is recorded in books and sec.69 applies only when investment is not recorded in books of account. d. On the facts and in circumstances of the case, the said disallowance were unjustified and unwarranted. 4. The assessee prays that the said addition of ₹ 18,15,390/- be deleted GROUND NO. 3 1. The Ld. CIT(A) has erred in treating the genuine creditors as bogus and added ₹ 30,21,580/- to the total income of the assessee. 2. The Ld. CIT (A) has erred in disregarding the documentary evidence filed by the assessee such as confirmation from the loan parties along with the necessary documents. 3. He failed to appreciate and ought to held that: a. The basic requirements for proving genuineness of the transaction are fulfilled by the assessee through the documents submitted by the loan parties which is enough to prove that the identity of the loan party and genuineness and creditworthiness of the loan parties. b. The said transaction of loan has been made from through proper banking channel via cross account payee cheques which itself proves the genuineness of transaction. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . CIT (A)erred in confirming the addition of ₹ 36,000/- rent of premises at cuttack respectively in view of section 69C of the Income Tax Act, 1961. The assessee submits that: i. the said rent of ₹ 36,000/- paid by assessee's brother Mr. Pradeep C lain and same has been shown as withdrawal in capital account of your appellant's brother Mr. Pradeep C lain. ii. No addition for the same can be made in the hands of the assessee while completing the Assessment for the A.Y. 2008-09. iii. The said amount was also not reimbursed by the assessee to his brother. iv. Further the said amount has not claimed by the assessee as expenditure in his Profit & Loss account. v. hence, Addition cannot be made in the hands of the assessee. vi. Further the appellant has explained the source of expenditure. hence the addition u/s 69C is bad in law. vii. on the facts and in circumstances of the case, the said disallowance were unjustified and unwarranted. viii. Hence, the said addition of ₹ 36,000/- needs to be deleted. GROUND NO. 6 1. The Ld. CIT (A) has erred in confirming the disallowing 10% of the conveyance and travelling expenses i.e ₹ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... round of appeal. 2. Brief facts of the case are that assessee filed return of income assessment year 2008-09 on 26.03.2009 declaring total income of ₹ 8,35,940/-. As a search action u/s. 132 was carried out on the assessee on 15.05.2007 during the such a cash of ₹ 61,00,000/- and jewellery of ₹ 18,15,390/- was found and ceased from the assessee's employee Shri Kahna Ram and Pradeep C Jain. Subsequent to the search action the assessment for six previous assessment years were completed by Dy.CIT Circle (15) Mumbai, vide order dated 23.12.2009 u/s. 143(3) r.w.s. 153A. The assessment in that year under consideration was completed on 31.12.2010. The assessing officer in while passing order in column no. 11 of ITNS 65 ( format of assessment order) recorded "section 143(3) r.w.s 153A of the Income Tax". However, at the concluded para of the assessment order the assessing officer recorded "assessed accordingly u/s. 143(3) of the Income Tax Act". 3. The assessing officer while passing assessment year made the addition of various addition/disallowance consisting of addition of ₹ 61,00,000/- on account of undisclosed income, addition of ₹ 18,15,390/- as unexpl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... om 420(Delhi). On the other hand Ld. DR for the revenue strongly opposes the application for raising additional ground of appeal. It was argued that and para 11 of ITNS 65(formant of assessment order), there is a merely a typographical error which may occurred while passing order. The assessing officer correctly recorded provision of section at the concluded para of assessment order. The order is neither invalid nor requires any correction. It was further argued that admittedly no notice u/s. 153A for the assessment year under consideration was issued by assessing officer. In fact, the assessment was passed u/s. 143(3). The search was conducted on 15.05.2007. The assessee filed return of income for relevant assessment year later on 26.03.2009. The assessing officer admittedly not issue notice u/s. 153A to assessee requiring him to furnish return of income. Thus, the assessee cannot take the plea that assessment order was passed u/s. 153A r.w.s 143(3). Even otherwise a six assessment year as referred in clause (b) and sub section (1) of 153A speaks about six assessment year immediately preceding the assessment year relevant to the previous year in which year search is conducted. 6. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and the jewellery along with confirmation. The cash and jewellery cannot be treated as unexplained or concealed income of the assessee. The AO passed the assessment order without giving sufficient opportunity. It was argued that pursuant to the search action, the assessment order for AYs 2004-05, 2005-06, 2006-07 & 2007-08 was passed under section 153A r.w.s. 143(3). The assessee filed appeal in all quantum assessment before the Tribunal and the matter was restored to the file of AO vide order dated 27.04.2016 in ITA No. 7190, 6989, 6990 & 7191/Mum/2010. The relief prayed in the ground no.1 & 2 of the appeal are related to the cash and gold jewellery was seized in the search action on 15.05.2007. The AO while passing assessment order has not given sufficient opportunity to explain and substantiate the claim of assessee and these grounds of appeal may also be restored to the file of AO with the direction to allow the assessee to explain about the seizure of cash and jewellery. On the other hand, the ld. DR for the Revenue supported the order of authorities below and would argue that the assessee has not appeared before the AO on a number of appointed dates and asked for adjournment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s of the transaction. The Assessing Officer has also recorded the reason that the lenders were not produced before him. However, the assessee has proved the identity of the lenders by producing the sufficient documents on record which has also been produced before us in the paper book. What has been produced by the assessee on record is hereby mentioned below:- Sr. No Name of the lender Documents of the lender 1 Chaganlal D. Jain 1. Copy of the Balance Sheet, Income & Expenditure a/c.and Capital A/c.forA.Y.07-08. 2. Computation of Income for A.Y.07- 08. 3. Income Tax Acknowledgement for A.Y.07-08. 4. Pan card Xerox 5. Ration Card Xerox 6. Xerox copy of the bank passbook of the lender duly reflecting the loan given to the appellant. 7. Confirmation letter for Loan given. 8. Copy of letter dated:11/11/2008 written by the lender to the AO in reply to the notice u/s. 133(6) issued to them confirming the transaction with your appellant. 9. Copy of the Bank Statement of the Lender (Saraswat Bank) and that of the appellant (ICICI Bank) duly reflecting a further lending of a amount of ₹ 23 lacs on 21/11/2006 by the lender to the appellant. 2 Prakashdevi Jain 1. Copy of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 7-08. 4. Pan card Xerox 5. Ration Card Xerox 6. Xerox copy of the bank passbook of the lender duly reflecting the loan given to the appellant. 7. Confirmation letter for Loan given. 8. Copy of letter dated:11/11/2008 written by the lender to the AO in reply to the notice u/s. 133(6) issued to them confirming the transaction with your appellant. 9. Copy of the Bank Statement of the Lender (Saraswat Bank) and that of the appellant (ICICI Bank) duly reflecting a further lending of an amount of ₹ 2.3 lacs on 15.11.2006 by the lender to the appellant. 6 Narpatraj D. Sanghvi 1. Copy of the Balance Sheet, Income & Expenditure a/c.and Capital A/c.forA.Y.07-08. 2. Computation of Income for A.Y.07- 08. 3. Income Tax Acknowledgement for A.Y.07-08. 4. Pan card Xerox 5. Ration Card Xerox 6. Xerox copy of the bank passbook of the lender duly reflecting the loan given to the appellant. 7. Confirmation letter for Loan given. 8. Copy of letter dated:11/11/2008 written by the lender to the AO in reply to the notice u/s. 133(6) issued to them confirming the transaction with your appellant. 9. Copy of the Bank Statement of the Lender (Saraswat Bank) and that of the appellant (ICICI Bank) duly ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urther lending of a amount of ₹ 40,000 on 10.01.2007 and ₹ 40,000 on 12.01.2007 by the lender to the appellant. The learned CIT(A) did not consider the claim of the assessee on the ground of that the assessee failed to produced the above mentioned 9 creditors and the documents which have been produced by the assessee were also not been considered on the presumption that the assessee was using the avoidance tactics. The Learned CIT(A) was also of the view that the assessee failed to show the capacity of the above said 9 creditors and the above said creditors were not having the proper source of income. But as discussed above the assessee has given the details of the creditors and their records which should be considered in accordance with law. However, the Assessing Officer issued the notice u/s. 133(6) of the Act and the said creditors also filed reply to the said notice. If the presence of the above said creditors are necessary then the Assessing Officer can secure their presence by issuance of notice u/s. 131 of the Act and also can provide the opportunity of being cross examination to the assessee. Anyhow in view of the above said documents we are of the view that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in operation in the A.Y. 2007-08 therefore there is no issue of expenditure. On appraisal of order passed by the Assessing Officer as well as learned CIT(A) on record, the expenses assessed by the Assessing Officer is on account of electricity, salary and travelling etc. The electricity bills, salary and expenditure of travelling is a matter of record which can be confirmed by going through the relevant books of accounts/bill etc of the assessee. Merely on the basis of this fact that the assessee was not running the business therefore the expenditure is not allowable, does not seems justifiable without conducted any required enquiry. Anyhow, this matter has not been examined properly earlier therefore we are of the view that this expenditure which has been disallowed on account of non working of the business of the assessee is required to be examined afresh in the light of the documents / accounts of the assessee in the interest of justice. We therefore remand this issue on the file of Assessing Officer to examined a matter afresh in the light of the documents / accounts of the assessee and by giving him an opportunity of being heard in accordance with law. Accordingly this issue i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... which service of notice within prescribed period of limitation provided therein, which is mandatory. 20. We have considered the rival submissions of the parties and have gone through the order of authorities below. We have noted that assessment order is passed on 31.12.2010. The assessment order is passed within prescribed period of limitation as provided under section 153(1) at the relevant period. Section 153 nowhere provides time limit for service of assessment order passed either under section 143 or 144 of the Act, with in the period prescribed therein. The legislature has intentionally used the word "made" while drafting the section 153 of the Act for passing the assessment order under section 143 or 144 of the Act. The ld AR for the assessee has not argued that after preparing and before service of the order the AO made any variation. There is allegation or evidence that the order of assessment was passed after period of limitation. Even otherwise, the order was served within reasonable time. The various decisions relied by ld AR for the assessee are factually differ. The ground of appeal raised by assessee has no force and the same is dismissed. Hence, this ground of appe ..... X X X X Extracts X X X X X X X X Extracts X X X X
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