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TMI Blog2015 (11) TMI 1877X X X X Extracts X X X X X X X X Extracts X X X X ..... g been found during the course of search seizure action under section 132(1)? - We find that it was held by Hon'ble Allahabad High Court in the case of Raj Kumar Arora [ 2014 (10) TMI 255 - ALLAHABAD HIGH COURT] that the reasons given by the Tribunal that no material was found during search cannot be sustained and it is also held by Hon'ble Allahabad High Court that the Assessing Officer has the power to reassess the income of the assessee not only for the undisclosed income which was found during search but also with regard to the material that was available at the time of original assessment. Respectfully following this judgment of Hon'ble Allahabad High Court, we hold that there is no merit in ground and the same is also rejected. Undisclosed expenditure of 7% in respect of India Millennium Bond of 50,000 US$ - As seen that this issue is covered in favour of the assessee by the judgment of Hon'ble Allahabad High Court rendered in the case of Kanchan Singh[ 2008 (5) TMI 641 - ALLAHABAD HIGH COURT] held there is no reason to doubt the genuineness of gift by Shri K. C. Kapadia to the assessee and therefore, the assessee was able to establish the nature a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the Revenue supported the assessment order whereas it is submitted by Learned A. R. of the assessee that relief was allowed by learned CIT(A) on this basis that the addition of ₹ 99 lac and ₹ 4.95 lac cannot be made in the assessment framed u/s 153A of the Act because in the assessee's own case, it was held by Hon'ble jurisdictional High Court that neither the original assessment framed u/s 143(3) nor the appeal before the Tribunal in this connection could abate and therefore, as a consequence, all the additions/disallowances made in the assessment order framed u/s 143(3) would survive and have to be decided in the appeal in the proceedings u/s 143(3) of the Act. 4. We have considered the rival submissions and gone through the orders of the authorities below. We find force in the submissions of the learned AR of the assessee. First, we reproduce the relevant Para of the order of CIT(A) i.e. Para 7.2.1 for the sake of ready reference: 7.2.1 This order was subjected to appeal before the Ld.CIT(A), who dismissed the appeal vide his order dated 22.05.2006. The assessee carried the matter to the Hon'ble ITAT, who allowed the appeal of the assessee vide ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inter-connected, which read as under: 3. BECAUSE on a due consideration of the facts and circumstances of the case, particularly that - (a) the appellant had duly filed the return , by stating that the return filed earlier be treated to be the return filed in compliance with the notice under section 153A; (b) the return filed in the said manner, even if, the same was belated, constituted return filed in compliance with the notice under section 153A; (c) the return so filed by the appellant, had duly been taken cognizance of by the Assessing Officer; (d) after the return had been filed in the aforesaid manner, the appellant was not served with any questionnaire nor any notice under section 143(2); the CIT(A) should have held that ACIT had lost jurisdiction to make assessment in pursuance of notice under section 153A and accordingly the assessment order dated 31/12/2008 was void abinitio. 4. BECAUSE various case laws as have been referred to and relied upon by the C1T(A) in negating the appellant's contention as has been reiterated in Ground No.2 heareinfore are distinguishable on facts, having no application in the instant ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... case of Rajeev Sharma was not followed because this judgment is in the context of section 148 assessment and not assessment u/s 153A. No other judgment has been brought to our notice by Learned A. R. of the assessee which is in the favour of the assessee and is in the context of assessment u/s 153A of the Act. Therefore, in the present case also, we follow the judgment of Hon'ble Delhi High Court and decide the issue against the assessee. Accordingly, ground No. 3 4 of the assessee are rejected. 13. Ground No. 5 is as under: 5. BECAUSE in any case, no incriminating material having been found during the course of search seizure action under section 132(1) that took place on 17th October, 2006, as per particulars given herein below : Sl. No. Places subjected to search Warrants in the names of (i) M/s. Banarsi Mishthan Bhandar (P) Ltd., 26/72, Birhana Road, Kanpur M/s. Banarasi Misthan Bhandar (P) Ltd., S/Shrj Jeevan Kumar Agarwal, Smt. Lalmani Agarwal Rajeev Agarwal (ii) M/S. GRS Jewellers, 59/44, Birhana ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Undisclosed expenditure as worked out at the rate of 7% of above. 1,71,564 26,22,482 to the income of the appellant, on the ground that identity of the donor as also the circumstances in which gift have been made, remained unproved. 7. BECAUSE the gift of IMD had been executed by the donor, through State Bank of India, a nominated agency under the scheme formulated by the Government of India and the issues raised by the Authorities below, were wholly extraneous to the said scheme. 8. BECAUSE the appellant enjoyed immunity from all such enquiries as have been referred to by the authorities below and the addition made/ sustained by them being based on a wholly illegal premise, is not sustainable. 9. BECAUSE the case laws as have been referred to and relied upon by the CIT(A) in upholding the addition for sums aggregating ₹ 26,22,482/- are not applicable on the facts of the present case and accordingly the view taken by him is wholly vitiated. 18. It was submitted by Learned A. R. of the assessee that Para 24 25 of the synopsis are relevant fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 004-05 only the maturity amounts of the bond were received. 6. Thus, so far as the year under consideration is concerned, the source and nature of deposit are fully established and the query with regard to the investment made in purchasing the bonds could be made only in the financial year 1998-99 relevant to the asst. yr. 1999-2000 and not in the year under consideration. 7. After the amendment in Section 5(iiie) of the GT Act by the Finance (No.2) Act of 1991, gift could be made to the person other than relatives also. The omission of the word 'relative' in the section shows that the amendment was made to promote the gift by NRI to the persons other than relatives to encourage inflow of foreign money in India through gifts. 8. Sri K.C. Kapadia, by confirmatory letter dt. 8th Feb., 2006 duly notarized by Notary Public of New Jersey, has confirmed the gift of four such bonds. The letters written by the assessing authority were returned unserved with the remark 'Not deliverable as addressed unable to forward' does not mean that Sri K.C. Kapadia, was not traceable and was not in existence. There may be so many reasons that the letter could not be delive ..... X X X X Extracts X X X X X X X X Extracts X X X X
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