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TMI Blog2021 (4) TMI 685X X X X Extracts X X X X X X X X Extracts X X X X ..... n the hands of Mr. Siya Ram Gupta , as Shri Siya Ram Gupta owned up the amounts of income of other family members as his income and no challenge was made by assesse before ld. CIT(A) for deleting the addition on protective basis on the grounds that the AO has already taxed the same in the hands of Mr. Siya Ram Gupta on substantive basis, and thus there was no occasion before ld. CIT(A) to have allowed the appeal of the assessee. Thus, in fact ld. CIT(A) dismissed the appeals of the assessee because the same had become infructuous, because the substantive additions made of the income of the assessee in the hands of Mr. Siya Ram Gupta stood confirmed in the hands of Shri Siya Ram Gupta and in view of that protective addition of the same amount of income in the hands of the assessee would not stand. Once the substantive assessment in the case of Mr. Siya Ram Gupta is confirmed , the protective assessment has no independent standing but dependent on the final outcome of the substantive assessment. Thus, to that extent , order of the tribunal stand modified and MA filed by Revenue is allowed - Miscellaneous Application (M.A. )No. 09 & 10/Alld./2012 arising out of ITA No.325 & 326/A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d allowed by tribunal , vide its appellate order dated 17.03.2009. Before proceeding further , it will be relevant at this stage to reproduce the decision of the tribunal in the case of the assessee, vide appellate order dated 17.03.2009 in ITA no. 325/Alld/2008 for ay: 2003-04, wherein tribunal held as under: 4. .. After discussions with learned DR, we notice that learned CIT(A) upheld assessment on substantive basis in the case of Shri Siya Ram Gupta in appeal No. 221/DCIT/CC/Alld dated 21/2/08 and further held that addition made on protective basis in all these cases did not stand any more. However, he has dismissed the appeal of the assessee. 5. After hearing learned D.R. , we hold that once learned CIT(A) has held that assessment can be made on substantive basis in the case of Shri Siya Ram Gupta and not on protective basis in the case of present assesses, then there was no reason for him to dismiss the appeal of the assessee. So, he ought to have allowed the appeal. It was also not pointed out by learned D.R. as to whether any rectification has been carried out by learned CIT(A) in his order. It was also not informed as to whether department has filed any cross a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... F ₹ 70,000/- 6. Shri Siya Ram Gupta, Firm ₹ 11,117/- ₹ 5,71,960/- 3.1 The AO has made the following additions in the assessment order in the hands of the following persons, the amount is shown against their names: 1. Km. Sumedha Gupta, Individual ₹ 11,110/- 2. Late Satya Naranan Gupta L/H Shri Siya Ram Gupta, Individual ₹ 20,000/- 3. Smt. Munni Devi , Individual ₹ 20,581/- 4. Shri Satya Narayan Gupta, HUF ₹ 10,000/- 5. Shri Siya Ram Gupta, HUF ₹ 10,000/- 6. Shri Siya Ram Gupta, Firm ₹ 11,117/- 3.2 The appellant has objected to the i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e from knitting and sewing but no evidence for the same could be found during the course of search and seizure operation that she was separately carrying out knitting and sewing. During the course of regular assessment proceedings in the case of Kumari Sumedha Gupta she has submitted that she has sold out machines etc employed for her business therefore , no evidence regarding that could be found during the course of search and seizure operation. In the regular assessment proceedings fir A.Y. 2001-02 in all the cases the assessee has submitted that all the undisclosed income for the block period over and above the returned income of above entities should be taxes in his hands and he has offered ₹ 20,00,000/- as undisclosed income in the block assessment. It was required from the assessee to explain as to why it should not be considered that the business of sarraffa , money lending and pawning during the block period has been carried out by him and returns filed in the names of different family members is nothing but diversion of income and all the income disclosed in the names of different entities mentioned above is that of his. In the written submission dated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the assessee is already reproduced by us on preceding para s of this order. We have heard ld. CIT-DR in details through video conferencing through virtual court who drew our attention to various orders passed by authorities, while none appeared for the assessee when this appeal was called for hearing before the Bench. In order to adjudicate the concerns raise in this MA by Revenue, it will be relevant at this stage to reproduce the grounds of appeal raised by assessee before learned CIT(A), which are reproduced hereunder: 1. That the learned Assessing Officer was wrong in law on facts in making the assessment on protective basis enhancing the returned income by ₹ 10,000/-. 2. That the learned A.O. has failed to appreciate that the assessee is an old income tax assessee and upto A.Y. 2001-02, the income shown was accepted as belonging to the assessee and only in A.Y.2002-03, such income was included in the case of Shri Siya Ram under the provisions of Section 158BB(1)(d). 3. That the inclusion of income as made in A.Y.2002-03 has been excluded by the learned CIT(A) in the appeal of SIya Ram Gupta against Block Assessment. 4. That the provisions of se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the addition in the hands of Mr. Siya Ram Gupta on substantive basis. Thus, the ld. CIT(A) was right in impliedly dismissing this ground of appeal raised by the assessee, although he has not expressly dismissed the grounds separately. c) Vide Ground of appeal no. 3 raised by assesse before ld. CIT(A), the assesse is claiming that the inclusion of the income so assessed for ay: 2002-03 was excluded in the appeal of Shri Siya Ram Gupta against Block Assessment. This ground is not relevant so far as this appeal of the assesse is concerned as no income is finally held to be assessed in the hands of the assesse and more-over presently the ld. CIT(A) was seized of the appeal against assessment framed u/s 143(3) of the 1961 Act and not appeal against Block Assessment. Thus, the ld. CIT(A) was right in impliedly dismissing this ground of appeal raised by the assessee, although he has not expressly dismissed the grounds separately. d) Vide Ground of Appeal No. 4 raised by assesse before ld. CIT(A), the assesse had claimed that provisions of Section 158BB(1)(d) were not applicable for the year under consideration. This ground is not relevant as the assessment which is under challenge w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... /Alld/2008 filed by Revenue for assessment year 2003-04, is allowed. MA No. 05/Alld./2012 arising out of ITA No. 319/Alld/2008 for ay: 2003-04- Shri Siya Ram Gupta L/H of Shri Satya Narain Gupta 2. Since facts are identical in this MA, our decision in MA no. 09/Alld/2012 shall apply mutatis mutandis to the MA No. 05/Alld/2012 arising out of ITA No. 319/Alld/2008 for ay: 2003-04. We order accordingly. 2.2 . In the result, M.A. No. 05/Alld/2012 arising out of ITA No. 319/Alld/2008 filed by Revenue for assessment year 2003-04, is allowed. MA No. 06/Alld./2012 arising out of ITA No. 320/Alld/2008 for ay: 2004-05- Shri Siya Ram Gupta L/H of Shri Satya Narain Gupta 3. Since facts are identical in this MA, our decision in MA no. 09/Alld/2012 shall apply mutatis mutandis to the MA No. 06/Alld/2012 arising out of ITA No. 320/Alld/2008 for ay: 2004-05. We order accordingly. 3.2 . In the result, M.A. No. 06/Alld/2012 arising out of ITA No. 320/Alld/2008 filed by Revenue for assessment year 2004-05, is allowed. MA No. 07/Alld./2012 arising out of ITA No. 329/Alld/2008 for ay: 2003-04- M/s. Siya Ram Gupta,Firm 4. Since facts are identical in this MA, our deci ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r ay: 2003-04. We order accordingly. 9.2 . In the result, M.A. No. 13/Alld/2012 arising out of ITA No. 323/Alld/2008 filed by Revenue for assessment year 2003-04, is allowed. MA No. 14/Alld./2012 arising out of ITA No. 324/Alld/2008 for ay: 2004-05- Mrs. Munni Devi 10. Since facts are identical in this MA, our decision in MA no. 09/Alld/2012 shall apply mutatis mutandis to the MA No. 14/Alld/2012 arising out of ITA No. 324/Alld/2008 for ay: 2004-05. We order accordingly. 10.2 . In the result, M.A. No. 14/Alld/2012 arising out of ITA No. 324/Alld/2008 filed by Revenue for assessment year 2004-05, is allowed. MA No. 15/Alld./2012 arising out of ITA No. 327/Alld/2008 for ay: 2003-04- M/s Satya Narain Gupta(HUF) 11. Since facts are identical in this MA, our decision in MA no. 09/Alld/2012 shall apply mutatis mutandis to the MA No. 15/Alld/2012 arising out of ITA No. 327/Alld/2008 for ay: 2003-04. We order accordingly. 11.2 . In the result, M.A. No. 15/Alld/2012 arising out of ITA No. 327/Alld/2008 filed by Revenue for assessment year 2003-04, is allowed. MA No. 16/Alld./2012 arising out of ITA No. 328/Alld/2008 for ay: 2004-05- M/s Satya Narain Gupta(H ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s rejected the contention of the assessee that the tribunal vide orders dated 17.03.2009 and 31.08.2009 has held that the income of the family members are to be assessed in their respective hands and not in the hands of the assessee. In-fact the tribunal while passing orders in the hands of respective family members/entities has held that their income has to be assessed in the hands of the assessee namely Mr. Siya Ram Gupta. The said order dated 17.03.2009 by tribunal in the case of respective family members/entities is reproduced in the preceding para s of this order. The decision of tribunal (SMC)dated 21.04.2016 in the case of the assessee is reproduced hereunder: 3. I heard the rival submissions and carefully considered the same alongwith orders of the tax authorities below. I have also gone through the order of this Tribunal dated 31.08.2009 and 17.03.2009. I noted that the Tribunal vide its order dated 31.08.2009 in ITA Nos. 20 to 24 under para-5 held as under: On consideration of the facts , I am of the view that the ld. CIT(A) was not justified in dismissing the appeals of the assesse. Once the ld. CIT(A) held that entire income of the assesse shall have to be a ..... 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