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2015 (10) TMI 476 - ITAT LUCKNOW

2015 (10) TMI 476 - ITAT LUCKNOW - TMI - Validity of search warrant - Block Asstt. Order - whether there was no individual search warrant in the name of the appellant, no Block Asstt. Order could be passed in his case? - Held that:- We refer to provision of Section 292CC of the Act. We find that this section was inserted by Finance Act, 2012 with retrospective from 01.04.1976. As per this Section, it is provided that notwithstanding that the authorization for search has been issued in joint name .....

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been provided by family members of the assessee. It may be that the amount in fact was paid by the Bajaj Group to the assessee because the assessee was working with Bajaj Group and since the alleged accommodation entries are admittedly in the name of family members of the assessee, such commission income for providing accommodation entries in fact belongs to respective family members and such family member is already accounting for interest income in respect of the alleged accommodation entries .....

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y accommodation entry then also, the commission on such accommodation entry belongs to the respective family member and that family member has already included in his income interest @ 12% and alleged commission payment of 5% is not in addition to interest of 12%. We, therefore, delete this addition in the present case - Decided in favour of assessee.

Addition in respect of alleged Salary - Held that:- The assessee has received salary of ₹ 84,000/- for AY 2000-01 and ₹ 1,0 .....

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e assessee in these two assessment years as per seized material and as per return of income filed by the assessee for these two years is same. Hence, we do not find any reason to interfere in the order of the CIT(A) on this issue. - Decided against assessee. - ITA No.261/LKW/2005 - Dated:- 4-9-2015 - SHRI SUNIL KUMAR YADAV, JUDICIAL MEMBER AND SHRI A.K. GARODIA For The Appellant Shri Rakesh Garg, Advocate For The Respondent Shri Sanjay Kumar, CIT(DR) ORDER PER A. K. GARODIA, A.M. This is an asse .....

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ividual search warrant in the name of the appellant, no Block Asstt. Order could be passed in his case. 3. The Ld. AR of the assessee submitted that this issue is covered in favour of the assessee by the judgment of the Hon ble Allahabad High Court rendered in the case of CIT Vs. Smt. Vandana Verma reported in 330 ITR 533 (All.) wherein it was held that when the warrant of authorization for search was issued in the joint names of husband and wife, individual assessments in the names of husband a .....

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n SLP No. 6080 of 2012 dated 02.12.2014. He submitted a copy of this judgment of the Hon ble Apex Court about dismissal of SLP in the case of CIT vs. Madhu Chawla (Supra). He pointed out that it is now law of land as per this judgment of Hon ble Apex Court because in this judgment, the dismissal of SLP is by way of a speaking order since the judgment says that upon hearing, the court made the following order delay condoned, dismissed . He submitted that as per this judgment of the Hon ble Apex C .....

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s larger bench rendered a judgment in the case of CIT Vs. Devesh Singh reported in 252 CTR 356 wherein it was held that in view of the provisions of Section 292CC of the Act as inserted by Finance Act, 2012 with retrospective effect, even where the warrant of authorization of search has been issued jointly, the assessment can be made individually. He further submitted that as per this judgment of the larger bench of the Hon ble Allahabad High Court, this issue is covered in favour of the Revenue .....

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n that case but it does not lay down a law particularly when there is no reference to Section 292CC of the Act in this judgment. 5. We have considered the rival submissions. First of all, we refer to provision of Section 292CC of the Act. We find that this section was inserted by Finance Act, 2012 with retrospective from 01.04.1976. As per this Section, it is provided that notwithstanding that the authorization for search has been issued in joint names, assessment or reassessment shall be made s .....

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e Allahabad High Court rendered in the case of CIT Vs. Devesh Singh (Supra) dated 23.07.2012 is at variance with these two judgments of the Division Bench of the Hon ble Allahabad High Court, we have to follow the judgment of larger Bench of the Hon ble Allahabad High Court in preference to these two judgments of the Division Bench of the Hon ble High Court and as per this judgment of the larger Bench of the Hon ble Allahabad High Court, the issue in dispute is covered against the assessee becau .....

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he Hon ble Apex Court, the SLP of the Revenue was dismissed without any discussion and this is by now a settled position of law that when the SLP is dismissed by the Hon ble Apex Court without any discussion, such judgment of Hon ble Apex Court is binding in the case in which it was rendered but does not lay down a law of land. Moreover, the Division Bench judgments of the Hon ble Allahabad High Court in the case of CIT vs. Vandana Verma (Supra) and Madhu Chawla (Supra) were rendered prior to in .....

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pex Court is not relevant in the present case because the same is without any discussion and without explicitly considering the subsequent retrospective amendment in the Income Tax Act by inserting section 292CC. 8. As per above discussion, we have seen that the issue in dispute as per ground nos. 1 and 2 is covered against the assessee and in favour of the Revenue by the judgment of larger Bench of the Hon ble Allahabad High Court rendered in the case of CIT Vs. Devesh Singh (Supra) and respect .....

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of alleged Salary Asstt. Year Amount 2000-2001 21600/- 2001-2002 39600/- 61200/- 4. The learned CIT(A) while sustaining the aforesaid additions have failed to appreciate the real facts of the case & the explanation furnished by the appellant as there was no undisclosed income to be assessed in Block Asstt. 10. It was submitted by the Ld. AR of the assessee that as per allegation of the AO in the assessment order, the amount had been received by the assessee on account of commission in respe .....

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Group. He also submitted that this is also admitted position that although provision of interest has been made for at the rate of 12% by the Bajaj Group but no payment was made by the Bajaj Group to the family members of the assessee in whose names, entries/loan was accounted for in the books of account of the Bajaj Group and even in two cases as noted by the AO on Page 8 of the assessment order, some cheques were given by the Bajaj Group to the family members of the assessee but cheques of equ .....

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ee. As against this, Ld. DR of the Revenue supported the orders of the authorities below. He also submitted that even if same income has been shown by the family members of the assessee, this is settled position of law by now that income has to be assessed in correct hands and therefore, the addition in the hands of the present assessee is proper because the commission was received by the assessee as per seized material. 11. We have considered the rival submissions. We find that in the assessmen .....

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rom the same family member of the assessee. Similarly on 08.09.1995, a cheque was received from Bajaj Chemicals of ₹ 1,25,000/- and on 09.11.1995, a cheque of equivalent amount was issued by the family member of the assessee to the Bajaj Osho Polypet. On page 9 of the assessment order, it is also noted by the AO that one may claim that the interest at the rate of 5% or 4% as the case may be is being paid outside the books while 12% is the rate of interest as per the books. Therefore, the t .....

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t the amount in fact was paid by the Bajaj Group to the assessee because the assessee was working with Bajaj Group and since the alleged accommodation entries are admittedly in the name of family members of the assessee, such commission income for providing accommodation entries in fact belongs to respective family members and such family member is already accounting for interest income in respect of the alleged accommodation entries and such interest income already taken into account by the fam .....

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