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TMI Blog2024 (10) TMI 73X X X X Extracts X X X X X X X X Extracts X X X X ..... provisions of section 68 of the Act could not be invoked the calculation of the profit margin at the rate of 8%, by Ld. CIT(Appeal) deserves to be set aside. Even otherwise, in the case of the assessee itself, referred to above, as regards findings about profit margin relating to sales made to the three parties mentioned therein, Co-ordinate Bench of the Appellate Tribunal expressed surprise over applying rate of profit margin different from the profit margin applied to the rest of the sales, and consequently held the impugned order to be erroneous. Similarly, here, the impugned order passed by CIT(A) applying rate of profit margin different from the profit margin applied to the rest of the sales, deserves to be set aside. - Shri Shamim Yahya, Accountant Member And Shri Narinder Kumar, Judicial Member For the Assessee : Shri Ved Jain, Advocate, Shri Aman Garg Ms. Ishika, Cas For the Department : Shri Om Prakash, Sr. DR. ORDER PER : SHRI NARINDER KUMAR, JUDICIAL MEMBER : This common order is to dispose of the above captioned two appeals. First mentioned appeal has been filed by the assessee. The second mentioned appeal has been filed by the department. 2. The assessee company is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to file the return. Thereby, the assessee was also informed that the copies of all the seized documents had already been provided and further, that the assessee could seek any other specific document/material from the department, if so required by the assessee. 8. Vide letter dated 10.10.2019, objections filed by the assessee were disposed of. Vide letter dated 15.10.2019, the assessee requested that the matter pertaining to jurisdiction of Assessing Officer be referred to Income Tax authorities in view of provisions u/s 124 (2) of the Act. Said request of the assessee was declined, citing the reason that jurisdiction of the matter was assumed by the Assessing Office by virtue of centralization order passed under 127 of the Act, by the PCIT(Central), Rajasthan on 17.7.2018, and that copy thereof had already been provided to the assessee. 9. As per records, notice u/s 142(1) of the Act accompanied by a questionnaire was served upon the assessee. However, on 5.11.2019, the assessee requested for adjournment. The Assessing Officer adjourned the matter to 11.11.2019. However, the assessee did not comply with the notice u/s 142(1) of the Act. Finally, the Assessing Officer adjourned th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 7,716/- ASSESSMENT ORDER IS CHALLENGED BEFORE THE CIT(APPEAL) 13. As mentioned above, feeling aggrieved by the above said order, the assessee filed appeal before Ld. CIT(Appeal). In response to the notice issued u/s 250 of the Act by the Ld. CIT(Appeal), the assessee- appellant filed written submissions. Ld. CIT(Appeal) took into consideration the grievances of the assessee-appellant as well as copies of certain documents and certain decisions submitted by the appellant. The appeal filed by the assessee was partly allowed while restricting the addition to Rs. 73,17,436/- and the balance addition of Rs. 15,12,48,830/- was directed to be deleted. In restricting the addition, Ld. CIT(Appeal) deemed it just to calculate the profit margin on the sale, made to the parties, worth Rs. 9,14,67,947, at the rate of interest of 8%. For the purpose of calculating the above said rate, the Ld. CIT(Appeal) observed: .. that the AO did not bring on record any evidence reflecting any cash being exchanged for the doubtful sales transactions. However, at the same time, the non-existence of the business activity on the registered premises of these concerns also cannot be ignored. In such circumstances, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... regards the preceding Assessment Year 2013-14, on similar allegations; that on appeal by the assessee against that assessment order, the Ld.CIT(Appeal) passed order making same observations and recording same findings; that the assessee had to challenge that order passed by Ld. CIT(Appeal) before this Appellate Tribunal; that vide order dated 6.11.2023 appeal filed before the Appellant Tribunal was decided while deleting the entire addition, on the ground that there was no reference to recovery of any indiscriminating material from the premises of the assessee; and further that the Assessing Officer had doubted sales by the assessee only as regards two enterprises namely, M/s Bhoomika Enterprises and M/s. Shree Chamunda Enterprises. Ld. AR for the appellant has contended that the issue involved in present appeal is squarely covered by the judgment passed by the Coordinate Bench of this Appellate Tribunal on 6.11.2023, and as such, the impugned order passed by CIT(Appeal) which had led to filing of the appeal deserves to be set aside, while deleting the entire addition upheld by CIT(Appeal). In support of this submission, in the course of arguments, learned AR for the appellant has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... modation entries of equal amount from shell concerns controlled by Shri Nirmal Sarda CA from the mobile phone of Shri Vikram Bajaj, an SMS confirming the receipt of cash by Shri Anil Sarda CA was found . 18. The Co-ordinate Bench was of the considered opinion that there was no reference to any incriminating material found from the premises of the assessee and further that though reference to electronic conversation might be incriminating, but, the same had no reference whatsoever with the assessee and also that the entire assessment was passed on the confessional statements by Shri Nirmal Sarda and Shri Anil Sarda. In this regard, reliance was placed on decision in Abhisar Buildwell s case, reported as 454 ITR 212, wherein Hon ble Apex Court observed as under: (i) that in a case of search under section 132 or requisition under section 132A, the Assessing Officer assumes jurisdiction for assessment under section 153A ; (ii)all pending assessments or reassessments shall stand abated. (iii) in case any incriminating material is found or unearthed, even in case of unabated or completed assessments, the Assessing Officer would assume the jurisdiction to assess or reassess the total inco ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pplication money, share capital, share premium or any such amount by whatever name called, any explanation offered by such assessee-company shall be deemed to be not satisfactory, unless (a) the person in whose name such credit is recorded in the books of such assessee also offers an explanation about the nature and source of such sum so credited; and (b) such explanation in the opinion of the Assessing Officer aforesaid has been found to be satisfactory: Provided further that where the assessee is a company (not being a company in which the public are substantially interested), and the sum so credited consists of share application money, share capital , share premium or any such amount by whatever name called , any explanation offered by such assessee company shall be deemed to be not satisfactory, unless- (a) the person being a resident in whose name such credit is recorded in the books of such company also offers an explanation about the nature and source of such sum so credited; and (b) such explanation in the opinion of the Assessing Officer aforesaid has been found to be satisfactory: Provided also that nothing contained in the first proviso or second proviso shall apply if t ..... 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