TMI Blog2012 (6) TMI 657X X X X Extracts X X X X X X X X Extracts X X X X ..... w arises for consideration. no evidence before the AO to conclude that on-money was received by Ahura Holdings (firm) in respect of all the sale transactions - Held that:- There was adequate material before the Assessing Officer in the form of eight sale deeds and in the form of replies given by assessee to questions posed to him with regard to receipt of on-money to enable AO to come to an informed conclusion in this regard. Appreciation of the available material is within the domain of the Assessing Officer and this does not lead to any substantial question of law, unless the conclusions arrived at are perverse - CIT (Appeals) agreed with the assessee that disallowance on the cost of land was not justified and as regards legal fees and some development expenses etc., the AO was directed to have a fresh look into the matterNo substantial question of law arises nor there is any occasion to interfere with the view taken concurrently by all the authorities - against assessee. - IT Tribunal Appeal Nos: 367, 368, 369, 379, 383, 386, 390, 395 and 438 of 2011 - - - Dated:- 15-12-2011 - Madan B Lokur, Sanjay Kumar, JJ. For Appellant: Sri S Ravi Senior Counsel for Ch. Pushyam Ki ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er passed an assessment order in respect of Ahura Holdings on a substantive basis, while protective assessments were made in respect of Gopal and Avadesh. The Assessing Officer rejected the contention of Gopal and Avadesh that on-money was received in their hands and held that there was sufficient evidence to show that the true sale proceeds had been suppressed and that Ahura Holdings had received on-money in respect of the transactions. On the basis of his best judgment, the Assessing Officer estimated the undisclosed income. 10. The assessees preferred appeals which came to be rejected in respect of the issues that we are concerned with by the Commissioner of Income-Tax (Appeals). The appellate authority observed that there was sufficient material to conclude that Ahura Holdings had received on-money. By and large, the CIT (Appeals) agreed with the Assessing Officer in respect of the ratio of the on-money component to the purchase price as per the sale deeds. 11. Feeling aggrieved by the order passed by the CIT (Appeals), the assessees preferred appeals before the Tribunal. The Revenue also preferred appeals before the Tribunal, but we are only concerned with the appeals pref ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the prescribed form and verified in the prescribed manner and setting forth such other particulars as may be prescribed and the provisions of this Act shall, so far as may be, apply accordingly as if such return were a return required to be furnished under Section 139; (b) assess or reassess the total income of six assessment years immediately preceding the assessment year relevant to the previous year in which such search is conducted or requisition is made: Provided that the Assessing Officer shall assess or reassess the total income in respect of each assessment year falling within such six assessment years: Provided further that assessment or reassessment, if any, relating to any assessment year falling within the period of six assessment years referred to in this section pending on the date of initiation of the search under Section 132 or making of requisition under Section 132-A, as the case may be, shall abate. Explanation. For the removal of doubts, it is hereby declared that,- (i) save as otherwise provided in this section, Section 153-B and Section 153-C, all other provisions of this Act shall apply to the assessment made under this section; (ii) in an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , such Assessing Officer shall issue the notice and assess or reassess total income of such other person of such assessment year in the manner provided in Section 153-A. 158-BI. Chapter not to apply after certain date .- The provisions of this Chapter shall not apply where a search is initiated under Section 132, or books of account, other documents or any assets are requisitioned under Section 132-A after the 31st day of May, 2003. 17. By virtue of Section 158BI of the Act, the various provisions of Chapter XIV-B of the Act are made inapplicable to proceedings under Sections 153A/153C of the Act. The effect of this is that while the provisions of Chapter XIV-B of the Act limit the inquiry by the Assessing Officer to those materials found during the search and seizure operation, no such limitation is found insofar as Sections 153A/153C of the Act are concerned. Therefore, it follows that for the purposes of Sections 153A/153C of the Act the Assessing Officer can take into consideration material other than what was available during the search and seizure operation for making an assessment of the undisclosed income of the assessee. 18. At this stage, we may mention that learn ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t assessment no doubt should arrive at its conclusion without any bias and on rational basis. That authority should not be vindictive or capricious. If the estimate made by the assessing authority is a bona fide estimate and is based on a rational basis, the fact that there is no good proof in support of that estimate is immaterial. Prima facie, the assessing authority is the best judge of the situation. It is his best-judgment and not of any one else's." (emphasis supplied) In our opinion, these principles would equally apply for deciding whether, as in the present case, the evidence of payment of on-money in some transactions would or would not relate to all similar transactions. 22. The next contention urged by learned counsel for the assessees is that though Gopal and Avadesh had stated that on-money was received by them and not by Ahura Holdings and this was also confirmed by the other two partners of the firm, yet the Assessing Officer completed the assessment in respect of Ahura Holdings on a substantive basis. 23. In our opinion, on an appreciation of the evidence, the Assessing Officer, the CIT (Appeals) as well as the Tribunal have all come to the same conclusio ..... X X X X Extracts X X X X X X X X Extracts X X X X
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