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TMI Blog2024 (6) TMI 419X X X X Extracts X X X X X X X X Extracts X X X X ..... the assessment year 2010-11 did not abate on the aforesaid date of search as time limit to issue notice expired on 30.09.2011. Identical disallowance on account of freight charges was made in assessee s own case in AY 2007-08 and AY 2009-10 and the Tribunal has deleted the same. Thus we set-aside the order of the CIT(A) and decide the issues in favour of the assessee and accordingly, allow the appeal of the assessee for AY 2010-11. Assessee appeal allowed. - Shri Shamim Yahya, Accountant Member, And Shri Yogesh Kumar Us, Judicial Member For the Assessee : Shri Somil Agarwal, Adv. For the Department : M r. Javed Akhtar, CIT(DR) ORDER PER SHAMIM YAHYA, AM : The Assessee has filed the aforesaid 03 Appeals against the respective impugned orders passed by the Ld. CIT(A), Karnal relating to assessment years 2010-11 to 2012-13. Since one of the issues involved in all the 03 Assessee appeals is common and identical, except the difference in figure of addition made, hence, all the 03 appeals of Assessee were heard together and are being disposed of by this common order for the sake of convenience, by only dealing with Assessee s Appeal No. 7421/Del/2017 (AY 2010-11) and the decision there ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... passing the impugned order without giving adequate opportunity of being heard. 10. That the appellant craves the leave to add, alter or amend the grounds of appeal at any stage and all the grounds are without prejudice to each other. 3. The grounds raised in Assessee s Appeal No. 7422/Del/2017 (AY 2011- 12) are reproduced as under:- 1. That having regard to the fact and circumstances of the case, Ld. CIT(A) has erred in law and on facts in confirming the action of Ld. AO in assuming jurisdiction and issuing of notice u/s 153A r.w.s. 153C of the Act, more so when the notice was issued in the name of non-existing entity. 2. That in any case and in any view of the matter, the assessment framed under section 153A(1)(b) of the Act, is bad in law and against the facts and circumstances of the case. 3. That having regard to the facts and circumstances of the case, Ld. CIT(A)has erred in law and on facts in confirming the action of the Ld. A.0. in making disallowance of freight charges of Rs. 57,75,888/- u/s 37(1) of the Income Tax Act, 1961, that too in the proceedings u/s 153C of the Act, and more-so by alleging failure of the assessee to produce bills and vouchers. 4. That in any case ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt year 2010-11, an assessment year falling within the six assessment years immediately preceding the assessment year relevant to the previous year in which search was conducted. In the instant case the search was conducted on 09.05.2012 and in response thereof the assessee filed its return of income, duly verified and signed as per the provisions of section 140 of the Act, returning a total loss of Rs. (-)1,51,32,524/- on 17.10.2014. Thereafter, notices under section 143(2) and 142(1) of the Act alongwith a questionnaire were issued to the assessee on 03.11.2014, which were duly served upon the assessee. In response thereof, the Assessee s AR attended the assessment proceedings from time to time and filed the requisite details/ written submissions. After examining the records, AO observed with regard to disallowance of Rs. 1,45,000/- u/s. 14A r.w. Rule 8-D is concerned, the AO has observed that the assessdee was engaged in the business of dealing in real estate, consultancy and contractual business. As per AO assessee has shown share transactions as investments only for the purpose of claiming the benefit of exemption u/s. 10(38) of the Act, hence, the provisions of section 14A ar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he date of search in the present case and therefore, the assessment year 2010-11 did not abate on the aforesaid date of search as time limit to issue notice expired on 30.09.2011. As regards ground no. 3 4 are concerned, he submitted that a plain reading of the assessment order would show that the disallowance u/s. 14A has been made in the absence of any incriminating material found during the course of search which is not permissible and reliance is placed on the decision of the Hon ble Supreme Court of India in the case of DCIT vs. UK Paints (Overseas) Ltd., CA No. 6634/2021, dated 25.4.2023 and PCIT vs. Abhisar Buildwell P. Ltd., CA No. 6580/2021 dated 24.4.2023 and therefore, the said disallowance is beyond the jurisdiction of the impugned proceedings and deserves to be deleted and may be please be so held. 8.1 As regards ground no. 5 6 are concerned, Ld. AR has submitted that that a plain reading of the assessment order would show that the disallowance of Rs. 54,82,446/- on account of freight charges has also been made without any incriminating material found during the course of search which is not permissible and reliance is placed on the decision of the Hon ble Supreme Cour ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ice expired on 30.09.2011. 10. It is further noted that identical disallowance on account of freight charges was made in assessee s own case in AY 2007-08 and AY 2009-10 and the Tribunal has deleted the same. 11. Keeping in view the aforesaid discussion and following the precedent of Hon ble Apex Court in the case of PCIT vs. Abhisar Buildwell Pvt. Ltd. (Supra), we set-aside the order of the Ld. CIT(A) and decide the issues in favour of the assessee and accordingly, allow the appeal of the assessee for AY 2010-11. 12. Following the consistent view as taken in AY 2010-11, as aforesaid, the issues raised in Assessee s other ITA Nos. 7422 7423/Del/2017 (Ayrs. 2011-12 2012-13) are also decided in favour of the assessee by setting aside the orders of the Ld. CIT(A) in both the years too and accordingly allowed the appeals of the assessee. 13. Since we have decided the aforesaid appeals on merit in favour of the assessee and also impugned orders of the Ld. CIT(A) have been set-aside, therefore, the other Grounds raised by the Assessee have become academic and do not require any adjudication. 14. In the result, all the 03 Assessee Appeals are allowed in the aforesaid manner. Order pronoun ..... X X X X Extracts X X X X X X X X Extracts X X X X
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