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2012 (11) TMI 313 - ITAT, COCHINUnaccounted Cash – Held that:- There was no necessity for AO to invoke the presumption provided u/s 132(4A) of the Act in the hands of Shri Anup Kumar Shah. Further there is no compulsion under the Act that the AO should necessarily invoke the provisions of sec.132(4A) of the Act. Assessee has failed to furnish any credible explanation with regard to the unaccounted cash - Order of CIT(A) on this issue is set aside. Revision u/s 263 - erroneous decision - held that:- Ld CIT(A) has listed out the search materials, which have not been examined by the AO and which would have implication to the undisclosed income determined in the hands of the assessee. Thus, it is seen that the AO has failed to apply his mind on those materials and on account of that, the assessment order is rendered erroneous. Since the said issues involve huge tax effect, the assessment order is also rendered as prejudicial to the interests of the revenue. Whether CIT(A) entertain a appeal against an assessment order passed on the directions of the Administrative commissioner - held that:- it was not shown to us that the Ld CIT(A) has considered issues which have attained finality in the earlier proceeding. - the assessment order passed u/s 143(3) r.w.s. 263 can very well be appealed before the Ld CIT(A) in respect of the issues which have not already been decided by the appellate authority. - Decided in favor of revenue. Unaccounted Payments - rebuttable presumption u/s 132(4A) - Held that:- Considering the quantum of work undertaken by the company and the position of the officials, it would be reasonable, AO was justified in making the addition of Rs.30,25,850/-. Accordingly, we set aside the order of Ld CIT(A) on this issue and restore the addition made by the AO. Illegal payments - held that:- payments made to the officials of NHAI amounting to Rs.57.50 lakhs are illegal - no infirmity in the decision of CIT(A) in confirming the addition of Rs.57.50 lakhs. - it is seen that the assessee did not explain the entries found in the incriminating documents except stating that they have not made such payments. In this kind of situation the presumption provided u/s 132(4A) comes into operation and we notice that the assessee has failed to rebut the presumption. Payments not accounted in Books - Although assessee reiterated its claim that the transactions pertaining to Rs.12.50 lakhs belong to the Joint Venture concern, yet no material was produced to contradict the findings given by CIT(A) - no reason to interfere with the decision reached by CIT(A) on this issue - In the result,appeal of the revenue is allowed and Both the appeals of the assessee are dismissed.
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