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TMI Blog2022 (9) TMI 1486X X X X Extracts X X X X X X X X Extracts X X X X ..... dentical grounds except the difference in amount of addition inter alia that (grounds are taken from all assessee's appeals for A.Y. 2012-13, 2013-14 & 2014-15): ITA No.1311/M/2021 for A.Y.2012-13 "1. In the facts and circumstances of the case and in law, the learned CIT(A) erred in confirming the assessment passed u/s 153C of the Income tax Act, 1961 which was passed in the absence of any incriminating material and without appreciating the fact that original assessment made u/s 143(3)/143(l)(a) which was completed on the date of initiation of search do not get abated. 2. In the facts and circumstances of the case and in law, the learned CIT(A) erred in confirming the assessment u/s 153C which was passed without having jurisdiction to the assessing officer as no opportunity of being heard u/s 127 of the act was granted to the appellant. 3. In the facts and circumstances of the case and in law, the learned CIT(A) erred in confirming the assessment u/s 153C which was passed without furnishing the copy of the satisfaction recorded. 4. In the facts and circumstances of the case and in law, the learned CIT(A) erred in confirming the assessment u/s 153C which was passed wit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that order was passed on the basis approval granted u/s 153D in a routine manner. 4. In the facts and circumstances of the case and in law, the learned CIT(A) erred in confirming the assessment u/s 153C which was passed without granting a copy of the statement recorded on 14.01.2015 and thereby violating natural justice. 5. In the facts and circumstances of the case and in law, the learned CIT(A) erred in computing addition of Rs. 3,27,945 by considering two layers for commission ignoring the fact that there are at least three layers, the Trust, the accommodating party and the agent. 6. In the facts and circumstances of the case and in law, the learned CIT(A) erred in confirming further commission (5)1.5% ignoring the fact that he has already computed commission of Rs.3,27,945 (as per (6) above)" ITA No.1468/M/2021 for A.Y.2014-15 1. In the facts and circumstances of the case and in law, the learned CIT(A) erred in confirming the assessment passed u/s 153C of the Income tax Act, 1961 which was passed: (a) In the absence of any incriminating material (b) Without having jurisdiction to the assessing officer as no opportunity of being heard u/s 127 of the act was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 16 was issued to file the return of income to which assessee opted to treat the return already filed in response to the notice under section 153C of the Act. Notice under section 142(1) were issued for A.Y. 2009-10 to 2014-15 and A.Y. 2015-16 which was duly served upon the assessee but assessee did not furnish complete details. Then the AO sought information under section 133(6) of the Act from Axis Bank and Jammu & Kashmir Bank where the assessee is having accounts. From the analysis of the information provided by the bank, the AO noticed huge number of bank accounts in the assessee's account with Jammu & Kashmir Bank about which the assessee was asked specific question in his statement recorded under section 131 of the Act. 4. From the total deposits made by the assessee in the bank accounts the total year-wise deposits were noticed as under: F.Y. Relevant A, V. Total deposits (RS.) 2010-11 2011-12 12.36.000/- 2011-12 2012-13 52,00,000/- 2012-13 2013-14 1,32,24,000/- 2013-14 2014-15 2,06,21.600/- 2014-15 2015-16 5,91,45,787/- 5. On failure of the assessee to furnish detail qua the transaction in the bank account asked for in the statement recorded under secti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ITA Nos.4584, 4585 & 4586/M/2018 and also relied upon the decision rendered by the Hon'ble Supreme Court in case of CIT vs. Sinhgad Technical Education Society in Civil Appeal Nos.11080 to 11083 of 2017 (2017) 397 ITR 34 (SC) and the decision of Hon'ble High Court of Delhi in case of CIT vs. RRJ Securities Ltd. (2016) 380 ITR 612 (Del) and in case of Pepsico India Holdings (P.) Ltd. vs. ACIT (2014) 50 taxmann.com 299 (Delhi). 11. However, on the other hand, to repel the argument addressed by Ld. A.R. for the assessee the Ld. D.R. for the Revenue relied upon the order passed by the AO and statement of assessee recorded during search and survey proceedings referred to in para 13.2 of the impugned order passed by the Ld. CIT(A) which is substantiated by bank statement; that Ld. CIT(A) has erred in considering the commission income only in order to make/confirm the addition and relied upon the decision rendered by Hon'ble High Court in case of P.R. Metrani Vs. Commissioner of Income Tax (2006) 287 ITR 209 (SC) and the decision of Hon'ble Allahabad High Court in the case of Gargi Din Jwala Prasad vs CIT (1974) 96 ITR 97 (Allahabad HC). 12. Undisputedly, assessments in all the aforesai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on income. 4. One of the grievances raised by the assessee is that original assessment in this case was already completed on the date of initiation of search and hence these additions do not get abated. Hence, it is the plea that de-horse incriminating material found no addition is permissible. I note that addition in A.Y. 2010-11 has been done on account of cash credit u/s. 68 of Rs. 8,00,000/- and commission of Rs. 1,00,275/-. I note that while dealing with the addition the Assessing Officer has mentioned that addition u/s. 68 was done on examination of balance-sheet. Similar is the position of addition of commission income. There is no whisper in the assessment order that any incriminating material was seized in respect of addition which has been done. It is clear that search was conducted on 27.10.2014 and assessment year involved A.Y. 2010-11 was not abated assessment. Hence on the touchstone of Hon'ble Jurisdictional High Court decision in the case of Continental Warehousing Corporation (374 ITR 645), no addition was permissible de-horse incriminating material found. Since no incriminating material has been mentioned with respect to addition made, I set aside the order ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... issue raised by the assessee in ground No.6, 7, 8 & 9 on merits qua disallowance of Rs.7027/- being exempt claimed under section 10(38) of the Act on account of long term capital gain on sale of shares and addition made under section 68 on account of net sale proceeds in respect of the jewellery sold and addition made on account of commission income have become academic, hence need not be decided. Grounds of appeals of Revenue in ITA No.1357 & 1570/M/2021 for A.Y. 2013-14 & 2014-15 ITA No.1357/M/2021 for A.Y. 2013-14 1. Whether on the facts and circumstances of the case and in law, the Ld. Pr.CIT(A)-48, Mumbai had erred in deleting the addition of Rs.5,00,000/- as unexplained cash credit overlooking the mismatch in date of loan in the Balance Sheet and the Loan confirmation filed by the assessee. 2. Whether on the facts and circumstances of the case and in law, the Ld. Pr.CIT(A}-48, Mumbai had erred m deleting the addition of Rs.21,47,538/- in respect of LTCG on sale of shares by way of unexplained cash credit, ignoring to the reasons of such addition by the A.O in the assessment order. 3. Whether on the facts and circumstances of the case and in law, the Ld Pr. CIT(A) ..... X X X X Extracts X X X X X X X X Extracts X X X X
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