9911796707
TMI Blog2015 (1) TMI 58X X X X Extracts X X X X X X X X Extracts X X X X ..... sment was without jurisdiction. 2. That the CIT(A) has, failed to appreciate that in any case the order passed by DCIT was without satisfying the mandatory requirements of the aforesaid chapter and also without fulfilling the precondition for making an order of assessment. 3.That the Ld. CIT(A) has further erred in failing to appreciate that the order of block assessment had been made without providing to the assessee a fair, proper and meaningful opportunity and the assumption that there has been an undisclosed income is based on wholly irrelevant arbitrary and unfounded considerations. The assessment so framed has been made in a highly arbitrary, whimsical and capricious manner. 4. That the Ld. CIT(A) has failed to appreciate that such an undisclosed income has to be computed on the basis of evidence found as a result of search or requisition of books of account or documents and such other material or information as are available with the AO and therefore such income which had been already processed cannot be processed under the aforesaid chapter. 5. That the Ld. CIT(A) has grossly erred both in law and on facts by arbitrarily brushing aside the contention of assessee that no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to look merits of each case while assessing officer has given no reason for imposing penalty on merits. 3. That both order u/s, 158BFA and order of CIT (A) are a) because no reasonable opportunity was provided to the appellant as per this provision either by ACIT or by CIT (A) despite application for adjournment was filed before him. b) because no previous approval was obtained as provided both order and approval were of the same date and Ld. CIT CA) has ignored this facts. c) because no satisfaction has been recorded either of the assessing officer or the additional commissioner of the Income tax which is mandatory for any penal provision. d) because tax has been calculated on estimated income what was never earned and penalty is not leviable when there is estimation of income. 3. That Ld. CIT CA) and ACIT have also erred in law as well as on facts and failed to appreciate that admission during assessment proceedings was made under forced circumstances as was also explained and this reason was not applicable for imposing any confirming penalty. 4. That Ld. CITCA) and ACIT have also failed to appreciate that there was no undisclosed income so as to levy penalty in fact appel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .) - Morarjee Coguldas Spg co. Ltd. vs. DCIT 95 IRD 1 TM (Bom) - CIT vs. Makhani and Tyagi (P) Ltd. 267 ITR 433. 7.1 He further stated that even otherwise, additions made in the hands of M/s Sanjay Traders and M/s Super Traders stand deleted by the Tribunal in the order dated 23.6.2006. He has filed the copy of the same before us. He has read Para 7 of the aforesaid order dated 23.6.2006. 7.2 On the other hand, Ld. Departmental Representative relied upon the orders of the lower authorities and controverted the arguments advance by the Ld. Counsel of the assessee and she has also filed two Paper Books in which she has attached various orders of the Supreme Court of India, High Court and the Tribunal. She has also filed a Statement of Jagdish Chander Malik dated 27.1.2000, 19.10.2000, 27.11.2002, and 23.12.2002; Notice issued u/s. 158BD; and reasons for issuing notice u/s. 158BD. She mainly draw our attention towards the order dated 23.6.2006 passed by the ITAT, Delhi Bench 'F', New Delhi in the case of DCIT vs. M/s Sanjay Traders & Ors. in ITA No. 445&446/Del/2003 (BP: 1.4.90 to 6.7.2000) and especially she also draw our attention towards Para 7 of the aforesaid order and stated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nsactions by the assessee with these three persons is not genuine and the assessee has also paid unaccounted commission. It is also to be noted that the present assessments are made u/s. 158BC. The undisclosed income can be computed only on the basis of material found as a result of search and such other enquiry relating to such material. During the course of search, no material is found which suggests that the assessee has incurred unaccounted expenditure by way of commission for so called sales transactions. Thus, no part can be included in the computation as undisclosed income for the block period." 8.1 It is an also admitted fact that assessee could not filed any documentary evidence retracting his earlier statement dated 19.10.2000 in spite of asking from the Bench. Secondly, in the present appeal the Ld. CIT(A)-III, New Delhi passed the impugned order dated 2.3.2006 whereas in the case of M/s Sanjay Traders and M/s Super Traders, Ld. First Appellate Authority has passed an order favoring the assessee and decided the issue in favor of the assessee vide order dated 9.7.2003 against which the Revenue has filed the appeal before the Tribunal and the Tribunal vide order dated 23. ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
