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TMI Blog2018 (5) TMI 495X X X X Extracts X X X X X X X X Extracts X X X X ..... ssment proceedings from locker - Held that:- Appellant does not maintain any cash book and there is no corroborative evidence to explain the source of cash found in the locker. It has been noted that appellant was investing in FDRs and keeping deposits in the group concerns. Only possible source of cash could be from hiring of machines. For want of cash book, it is not possible to ascertain as to what was cash left with the appellant after meeting out business and personal expenditure. Therefore no interference with the finding of AO is called for. Addition upheld. - ITA Nos. 1294 to 1297/PUN/2016 - - - Dated:- 26-4-2018 - SHRI D. KARUNAKARA RAO, AM AND SHRI VIKAS AWASTHY, JM Assessee by : None Revenue by : Smt. Nirupama Kotru. ORDER Per Vikas Awasthy, JM This bunch of four appeals by the assessee are directed against the order of Commissioner of Income Tax (Appeals)-12, Pune dated 21.03.2016 common for the assessment years 2007-08, 2008-09, 2010-11, 2012-13. 2. The notice of appeal was sent to the assessee on 06.02.2018 for 28.03.2018 through RPAD. As is evident from acknowledgement card on record, the notice was duly served on the assessee. On 28.03.2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... als) granted substantial relief to the assessee and confirmed minor additions in the assessment years 2007-08, 2008-09, 2010- 11, 2012-13. Against the additions confirmed, the assessee is in appeal before the Tribunal. 4.1 Similar grounds have been raised by the assessee in appeals for assessment years 2007-08, 2008-09, 2010-11 and 2012-13 challenging the validity of assessment u/s.153A r.w.s 144 of the Act and confirming of additions by Commissioner of Income Tax (Appeals) in the absence of any incriminating material. Thus, the common legal ground raised in all the four of appeals is validity of assessment proceedings u/s. 153A r.w.s. 144 in the absence of any incriminating material. The additions confirmed by the Commissioner of Income Tax (Appeals) against which the assessee is in appeal before the Tribunal in impugned assessment years are as under. Assessment year 2007-08 Sr. No. Nature of additions Amount ( in Rs.) Explanation by assessee. 1. Unexplained cash credit u/s.68. 1,10 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... learned Assessing Officer erred in passing order u/s. 153A r.w.s 144 even though no order u/s 127 was passed. 3) In the facts and circumstances of the case and in law the Assessing Officer erred in adding ₹ 1,10,000/- even though the same was explained to be generated out machine hire out charges received and even though the Appellant is not required to maintain books of accounts and therefore entries in passbook cannot be added u/s 68. 4) In the facts and circumstances of the case and in law the Assessing Officer erred in adding ₹ 90,000/- even though the same was explained to be transfer of funds from the son of the Appellant Shri Anil Kotecha and even though the same was backed by bank statements of the son. 5) In the facts and circumstances of the case and in law the Assessing Officer erred in adding ₹ 1,14,072/- even though the same was explained to be received from maturity of Postal Recurring Deposit and even though the Appellant is not required to maintain books of accounts and therefore cannot be added as cash credit u/s. 68. 6) In the facts and circumstances of the case and in law, the Commissioner of Income Tax(A) erred in confirming ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rcumstance of the case and in law, the learned Assessing Officer erred in making routine additions 1 disallowances in assessment u/s 153A r.w.s. 144 in the absence of any incriminating material and without appreciating the fact that original assessment made u/s.143(1)(a) which is completed on the date of initiation of search get abated. 2) In facts and circumstance of the case and in law, the learned Assessing Officer erred in passing order u/s. 153A r.w.s 144 even though no order u/s 127 was passed. 3) In the facts and circumstances of the case and in law the Assessing Officer erred in adding ₹ 44,220/- and ₹ 1,00,000/- u/s.68 by way of undisclosed cash credit in the bank account even though the Appellant is not liable to maintain books of accounts and therefore, section 68 does not apply and even though the source of ₹ 44,220/- was attributable to cash withdrawn from Jalgaon Janta Sahakari Bank Ltd. from time to time and thereafter the said cash was deposited in the same Bank Account and ₹ 1,00,000/- was received by cheque from Sunil R Pawar and rejected by the Assessing Officer even during the remand proceedings. 4) In the facts and circums ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es of the case and in law the Assessing Officer erred in adding ₹ 47,12,511/- being advance received from Dipesh from sale of shares of Tapi Pre-stressed Products Ltd. u/s.68 by way of undisclosed cash credit in the bank account even though the Appellant is not liable to maintain books of accounts and therefore, section 68 does not apply and even though the source of ₹ 47,12,511/- was attributable to advance received from Dipesh as above said and the said explanation was rejected by the Assessing Officer even during the remand proceedings. 5. In the facts and circumstances of the case and in law, the Commissioner of Income Tax(A) erred in confirming above addition by overlooking explanations submitted to him and. 6. The Assessing Officer wrongly charged interest u/s. 234A, B, C and D and initiated penalty u/s 271(1)(b). 17. In ground No. 1 and 2 of appeal, the assessee has assailed transfer of jurisdiction u/s. 127 of the Act. The Commissioner of Income Tax (Appeals) dismissed the objections raised by assessee against change of jurisdiction by observing as under: 3.3 At the fag end of the assessment proceedings, Appellant objected to the order u/s 12 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment for issuance of notice u/s. 143(2) of the Act. Therefore, it cannot be said that in the assessment year under consideration, no assessment was pending or it is a case of non abated assessment. Hence, the plea of assessee that in the absence of incriminating material, assessment made u/s. 153A r.w.s. 144 is without any jurisdiction sans merit. Accordingly, ground No. 3 raised in appeal by assessee is dismissed. 19. In ground No. 4, the assessee has assailed addition of ₹ 47,12,511/- on merits. The plea of the assessee before Authorities below is that the assessee has received amount as advance from Shri Deepesh Kotecha for selling share of Tapi Pre-stressed Ltd. The findings of Commissioner of Income Tax (Appeals) on this issue are as under: The appellant submitted that amount of ₹ 47,12,511 was received as advance from Mr.Deepesh for selling shares of Tapi Pre-stress Ltd. In support appellant filed confirmation of Deepesh Motilal Kotecha stating that he had given advance of ₹ 47,12,511 vide cheque dated 2.4.2009 against the purchase of 69,500 shares held by appellant. Appellant had failed to furnish the confirmation during the course of assessment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rned Assessing Officer erred in making routine additions / disallowances in assessment u/s 153A r.w.s. 144 in the absence of any incriminating material and without appreciating the fact that original assessment made u/s 143(1)(a) which is completed on the date of initiation of search get abated. 4. In the facts and circumstances of the case and in law the Assessing Officer erred in adding ₹ 1,65,900/- being cash found from locker of the Appellant by way of income from cash credit u/s. 68 even though the source of ₹ 1,65,900/- was attributable to past savings of the Appellant who is a senior citizen and the said explanation was rejected by the Assessing Officer even during the remand proceedings. 5. In the facts and circumstances of the case and in law, the Commissioner of Income Tax(A) erred in confirming above addition by overlooking explanations submitted to him and. 6. The Assessing Officer wrongly charged interest u/s. 234A, B, C and D and initiated penalty u/s 271(1)(b). 24. The ground No. 1 and 2 raised in appeal by assessee in assessment year 2012-13, are identical to ground No. 1 and 2 raised in assessment year 2010-11. The findings given by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e no interference with the finding of AO is called for. Addition made by the AO of ₹ 1,65,900 is upheld and ground raised by the appellant is dismissed. We do not find any infirmity in the order of Commissioner of Income Tax (Appeals) in confirming the addition. There is no material on record contrary to the findings of Commissioner of Income Tax (Appeals). Accordingly, the findings of Commissioner of Income Tax (Appeals) are confirmed and ground No. 4 raised in appeal by assessee is dismissed. 27. The ground No. 5 raised in appeal by assessee is general in nature and hence, requires no adjudication. 28. In ground No. 6, the assessee has assailed charging of interest u/s. 234A, 234B, 234C and 234D and initiation of penalty proceedings u/s. 271(1)(b) (c) and 271 AAA of the Act. Charging of interest u/s. 234A, 234B, 234C and 234D is consequential and mandatory; hence, the objection raised by assessee is dismissed. In so far as challenge to initiation of penalty proceedings u/s. 271(1)(b) (c) and 271AAA is concerned, the same is premature, therefore, the same is dismissed. 29. In the result, appeal of the assessee for assessment year 2012-13 is dismissed. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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