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TMI Blog2019 (7) TMI 873X X X X Extracts X X X X X X X X Extracts X X X X ..... ee regarding applicability of Section 153C and uphold the validity of the reassessment proceedings by the Revenue Authorities u/s.147/148. Thus, ground No. 2 and 3 raised in appeal by the assessee are dismissed. Addition based on entries in diary found in search of other person - diary recovered during the course of search u/s.132 from the premises of Chhoriya - Mr. Chhoriya had also filed an affidavit stating no loans were taken from the assessee - HELD THAT:- If the income of the entries which were found in the diary during the course of search in the premises of Chhoriya group, had been declared by Mr. Chhoriya as his own income, in such circumstances, no addition should sustain in the hands of the assessee. However, if it is found that there is a contrary scenario in that case, addition has to be sustained in the hands of the assessee. This issue, therefore needs detailed factual verification. We therefore, set aside the order of the CIT(Appeals) on this issue and restore the matter to the file of the Assessing Officer for proper verification as herein above directed by us and re-adjudicate the matter in conformity with the principles of natural justice. Thus, grounds N ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e was passed on 16.12.2011. During that time, therefore, the word belong was there and as facts and situation in this case, the diary recovered during the course of search from the premises of the Chhoriya Group did not belong to the assesse and therefore, provisions of Section 153C(1)(b) of the Act is not applicable to the case of the assessee since amendment itself come into place on 01.06.2015. In this regard, the Ld. DR placed reliance on the order of the Co-ordinate Bench of the Tribunal, Pune in assessee s own case where this issue has been specifically discussed and decided in ITA No.204/PN/2012 for assessment year 2008-09. On this issue, it was held by the Tribunal as follows: 56. We have considered the rival arguments made by both the sides, perused the orders of the Assessing Officer and the CIT(A) and the Paper Book filed on behalf of the assessee. We have also considered the various decisions cited before us. There is no dispute to the fact that in the instant case the search took place in the residential and business premises of the Chhoriya group on 22-08-2008 during which certain books of account marked as Annexure B item Nos. 1 to 4 were seized. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o assessee recorded in the books of account of Chhoriya were the basis on which the assessment has been completed in the case of Shri Ratanlal C. Bafna. In our opinion the entries in the books of Chhoriya cannot be equated with any money, bullion, jewellery or other valuable article or thing or books of account or documents belonging to the assessee. Therefore, the provisions of section 153C in our opinion are not applicable to the facts of the present case. We therefore observe that in assessee s own case itself in assessment year 2008-09, it is specifically analyzed regarding the applicability of Section 153C of the Act. Respectfully following the aforesaid decision wherein the facts and circumstances in this relevant assessment year 2003-04 are similar, we dismiss the contention of the assessee regarding applicability of Section 153C of the Act and uphold the validity of the reassessment proceedings by the Revenue Authorities u/s.147/148 of the Act. Thus, ground No. 2 and 3 raised in appeal by the assessee are dismissed. 5. The assessee in addition has also put forth before us another legal ground wherein it is asserted by t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... if the appellant is not interested to inspect the materials again. On the basis of this observation the Ld.DR prayed that there has been no violation of natural justice. Rather, adequate opportunity were provided to the assessee of which the assessee did not avail of. 8. We have perused the case records and heard the rival contentions. We observe that nothing on record demonstrates that prayer for cross examination of Mr. Devichand Chhoriya was made by the assessee before the Assessing Officer or before the Ld. CIT(Appeals). The Ld. AR of the assessee fairly conceded that they had not made any prayer before the Revenue Authorities for cross examination since it is a legal ground, the assessee is taking this ground for the first time before the Tribunal. We have also observed from the facts on records that sufficient opportunity to cross examine the seized materials were provided by the Assessing Officer but the assessee was not present for such inspection of these documents neither even at a later date he submitted any further request for such examination of the documents. The assessee has never prayed for cross examination. The decisions of the Hon ble Supreme Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ave perused the case records and heard the rival contentions on merits. We are of the considered view that if the income of the entries which were found in the diary during the course of search in the premises of Chhoriya group, had been declared by Mr. Chhoriya as his own income, in such circumstances, no addition should sustain in the hands of the assessee. However, if it is found that there is a contrary scenario in that case, addition has to be sustained in the hands of the assessee. This issue, therefore needs detailed factual verification. We therefore, set aside the order of the Ld. CIT(Appeals) on this issue and restore the matter to the file of the Assessing Officer for proper verification as hereinabove directed by us and re-adjudicate the matter in conformity with the principles of natural justice. Thus, grounds No. 5 and 7 raised in appeal by the assessee are allowed for statistical purposes. 14. In the result, appeal of the assessee in ITA No.109/PUN/2014 is partly allowed for statistical purposes. ITA No.110/PUN/2014 A.Y.2004-05 15. We observe that both sides are unanimous in stating that the fact ..... X X X X Extracts X X X X X X X X Extracts X X X X
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