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TMI Blog2017 (11) TMI 380X X X X Extracts X X X X X X X X Extracts X X X X ..... the CIT(A)- 41, Mumbai pertaining to the assessment year 2005-06, which in turn has arisen from an order passed by the Assessing Officer dated 31/12/2009 under section 143(3) r.w.s. 153A of the Act. 3. The genesis of this appeal arises from an assessment made by the Assessing Officer under section 143(3) r.w.s. 153A of the Act following a search action carried out at the business premises of the assessee and its other group concerns on 12/09/2007. The assessment has been finalized at Rs. 7,85,86,225/- as against the returned income of Rs. 4,80,06,298/-. The CIT(A) has allowed part relief to the assessee and the assessee is in appeal challenging the addition sustained by the CIT(A) of Rs. 19,65,690/- on account of prior period expenses. Ho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aving considered the rival stands, in our view, the Additional Ground of appeal sought to be raised by the assessee deserves to be admitted since it involves a pure point of law and the necessary facts required to adjudicate the same are already been on record. Thus, following the ratio of the judgment of the Hon'ble Supreme Court in the case of National Thermal Co. Ltd.(supra), we hereby admit the Additional Grounds of appeal for adjudication. 7. At the time of hearing the rival counsels were heard on the merits of the Additional Ground of appeal. In order to appreciate the plea of the assessee, the following facts are relevant. Originally, assessee filed a return of income under section 139(1) of the Act on 31/10/2005 declaring a tot ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 'ble Bombay High Court in the case of All Cargo Global Logistics Ltd. (supra). 8. In this context, we have perused the assessment order and find that three additions have been made to the income returned. Firstly, a disallowance under section 43B of the Act of Rs. 1,78,911/-, which has since been deleted by the CIT(A) and in the absence of any appeal by the Revenue the said deletion has become final. Thus, as of now the said addition has no relevance. Secondly, a disallowance of Rs. 19,65,690/- has been made on account of Prior Period expenses and relevant discussion is contained in para-6 of the assessment order. The said addition has since been affirmed by the CIT(A) also, and it has been further challenged by the assessee in appeal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al found in the course of search. Thus, the ratio of the judgment of the Hon'ble Bombay High Court in the case All Cargo Global Logistics Ltd. (supra) is clearly attracted and the same is outside the purview of the impugned assessment finalized under section 143(3) r.w.s. 153A of the Act. Thus, on this aspect itself, we set aside the order of CIT(A) and direct the Assessing Officer to delete the addition of Rs. 19,65,690/-. We may clarify here that we are not examining the aforesaid proposition with respect to the addition of Rs. 24,84,964/- under Rule 9A of the Rules, since the same has been admitted by the assessee before the CIT(A), and there is no negation of the said aspect before us. 10. In the result, the appeal of the assessee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r.w.s. 153A(1) of the Act, having regard to the ratio of the judgment of the Hon'ble Bombay High Court in the case of All Cargo Global Logistics Ltd. (supra). 14. On the other hand, the Ld. Departmental Representative primarily contended that since addition has been accepted by the assessee, the penalty under section 271(1)(c) of the Act is quite justified. 15. We have carefully considered the rival submissions. No doubt in the quantum proceedings, assessee agreed to the addition of Rs. 24,84,694/- in terms of Rule 9A of the Rules before the CIT(A) however, the penalty proceedings under section 271(1)(c) of the Act are independent proceedings and the findings in the assessment proceedings cannot be conclusive to test the efficacy of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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