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TMI Blog2020 (12) TMI 111X X X X Extracts X X X X X X X X Extracts X X X X ..... and allow this ground of appeal of the assessee. Addition being 1/3rd of the gold seized at the time of search - HELD THAT:- In the present case, the assessee has disclosed 329 grams jewellery purchased in A.Y. 2011-12 and 60 grams of jewellery received during marriage and the total aggregating to 379 grams. We find the coordinate bench of tribunal has dealt in the case of Shri Panati Vittalnath Reddy VS DCIT [ 2020 (3) TMI 572 - ITAT BANGALORE ] has deleted the addition - The assessee is owning the jewellery aggregating to 389 grams and supported with the evidence. We are of the view that no addition can be sustained. - Shri B.R. Baskaran, Accountant Member And Shri Pavan Kumar Gadale, Judicial Member For the Assessee : Shri V. Srinivasan, Advocate For the Revenue : Shri Priyadarshi Misra, JCIT (D.R) ORDER PER SHRI PAVAN KUMAR GADALE, JM : The assessee has filed appeals against common order of Commissioner of Income Tax (Appeals)-11, Bangalore, dated 29.06.2017, passed under section 153C r.w.s. 143(3) and 250 of the Income Tax Act, 1961 (hereafter called the Act ) for the Assessment Year 2013-14 and 2014-15. And for the Assessment Year 2015-16 ,the order was passed under section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ear under appeal to reject the income reported by the appellant and make an estimate especially when the assessment for the year under appeal had not abated in terms of the second proviso to sec. 153A of the Act and hence, the partial addition sustained by the learned CIT[A] is also opposed to law and hence, the same requires to be deleted. 3C. Without prejudice to the above, the income sustained by the learned CIT[A] at 8.5% of the gross receipts is highly excessive and liable to be reduced substantially. 4. Without prejudice to the right to seek waiver with the Hon'ble CCIT/DG, the appellant denies himself liable to be charged to interest u/s. 234-A, 234-B and 234-C of the Act, which under the facts and in the circumstances of the appellant's case deserves to be cancelled. 5. For the above and other grounds that may be urged at the time of hearing of the appeal, your appellant humbly prays that the appeal may be allowed and Justice rendered and the appellant may be awarded costs in prosecuting the appeal and also order for the refund of the institution fees as part of the costs. 2. The Brief facts of the case are assessee is engaged in the business of management of Munici ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eal No.2A to 2B,is on the validity of assessment under section 153C of the Act, We find the C-ordinate Bench of this Tribunal in the case of Shri. Panati Vittalnath Reddy Vs DCIT in ITA Nos.1768 to 1770/Bang/2017 for the Assessment Year 2013-14, 2014-15 and 2015-16 vide order dated 26.02.2020 on the validity of Assessment Order under section 153C of the Act held at page 13 Para 10 and 11 as under: 10. We have heard the rival submissions and perused the relevant material on record. The section 153C of the Act reads as under:- 153C. [(1)] Notwithstanding anything contained in section 139, section 147, section 148, section 149, section 151 and section 153, where the Assessing Officer is satisfied that any money, bullion, jewellery or other valuable article or thing or books of account or documents seized or requisitioned belongs or belong to a person other than the person referred to in section 153A, then the books of account or documents or assets seized or requisitioned shall be handed over to the Assessing Officer having jurisdiction over such other person and that Assessing Officer shall proceed against each such other person and issue notice and assess or reassess the income of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of search. Therefore, no addition under section 153C could be made for the assessment year under consideration, where no incriminating material was found in search relating to that assessment year. Accordingly, addition in business income sustained on account of estimation 8.5% of gross receipts is therefore, deleted. Accordingly, Ground No. 3A, 3B and 3C of appeal is allowed. 6. Accordingly, we fallow the judicial precedence, and there is no addition made under section 153C of the Act as the assessment is not abated on the date of search and partly allow the appeal of the assessee. 7. Now we shall take up appeal in ITA No.1775/Bang/2017 for Assessment Year 2014-15. The facts are identical and similar to the earlier Assessment Year 2013-14 and the Tribunal has decided the issue in assessee s own case for Assessment Year 20-13-14 as discussed and the same shall apply. The Ground of appeal No.2A and 2B is on validity of Assessment Order under section 153C of the Act, we upheld the validity of proceedings under section 153C of the Act as discussed in above paragraphs and dismiss the ground of appeal of the assessee. On the second disputed issue with respect to estimation of business ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t of evidence, probabilities, facts and circumstances of the case. 2A. The learned CIT[A] is not justified in upholding the rejection of the income reported by the appellant which is supported by audited financial statements while reducing the estimation of the business income to 8.5% of the gross receipts as against 12% of the gross receipts adopted by the learned A.O. thereby sustaining a portion of the addition made to the returned income under the facts and in the circumstances of the appellant's case. 2B. Without prejudice to the above, the income sustained by the learned CIT[A] at 8.5% of the gross receipts is highly excessive and liable to be reduced substantially. 3. The learned CIT[A] is not justified in sustaining the addition of ₹ 4,93,000/- made by the learned A.O. in respect of 1/3rd of the cash seized at the time of search in the hands of the appellant on the ground that the same represents unexplained investment of the appellant under the facts and in the circumstances of the appellant's case. 4. The learned CIT[A] is not justified in sustaining the addition of ₹ 16,42,900/- made by the learned A.O. in respect of 1 /3rd of the gold seized at the t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... business income declared by the assessee and hence the addition can not be sustained. Further there was a cash withdrawal of ₹ 9 lakhs on 11.09.2014 much before the search and the assessee has explained the facts with evidence before the assessing authorities. Contra,The LdDR relied on the CIT(A) orders. We considering the facts and submissions of the learned AR, supported by the evidence, are of the opinion that the assessee has cash withdrawals prior to the date of search. Therefore, the AO is not justified in making addition. Accordingly, we direct the AO to delete the addition and allow this ground of appeal of the assessee. 13. The last ground of appeal is in respect of addition of ₹ 16,42,900/- being 1/3rd of the gold seized at the time of search, The LdAR submitted that it has to be equally divided among 19 family members. The Hon ble Tribunal has held that the assessee has claimed jewellery of 261 grams belonging to him and has been reflected in the Balance Sheet as on 31.03.2011 and hence no addition can be made in the hands of the Assessee. In the present case, the assessee has disclosed 329 grams jewellery purchased in A.Y. 2011-12 and 60 grams of jewellery ..... X X X X Extracts X X X X X X X X Extracts X X X X
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