TMI Blog2016 (9) TMI 604X X X X Extracts X X X X X X X X Extracts X X X X ..... e. In our view, the revised return of Rs. of ₹ 12,46,130/- was filed by the assessee in response to the notices issued by the A.O. under the provions of the Act. The ld CIT(A) has upheld the addition to the extent of ₹ 10.00 lacs by accepting the revised return filed by the assessee. In our view, the assessee has admitted the tax liability by filing the revised return and now therefore the assessee cannot be permitted to withdraw the admitted tax liability accepted by him by filing the revised return of income. Though the assessment proceedings U/s 153C are cancelled on account of lack of satisfaction in accordance with law but the assessee is not entitled to refund or adjustment of any amount deposited by him pursuant to the filing of the return of income in response to the notice U/s 153C of the Act, in view of the judgment of the Hon’ble Supreme Court in the case of CIT vs. Micro Nova Pharmaceutical (P.) Ltd. [2014 (2) TMI 948 - SUPREME COURT OF INDIA ]. - ITA No. 1781/HYD/2014 - - - Dated:- 3-8-2016 - SHRI B. RAMAKOTAIAH, ACCOUNTANT MEMBER AND SHRI LALIET KUMAR, JUDICIAL MEMBER For The Assessee: Shri Vijay N Kale (AR) For The Revenue: Shri K.J. Rao ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the objection raised by the appellant was that the Assessing Officer, being ADIT(Inv) has no jurisdiction over the assessee to pass the assessment order. In this regard, it is pertinent to note that the appellant has not raised separate ground on this issue. However, on facts, the Assessing officer (ADIT(Inv), Unt-I(2), Hyderabad) was conferred with jurisdiction by the Addl.CIT, Central Range-2, Hyderabad vide her order dated 09/12/2010. Though, it is a fact that the status of the proprietory concern was mentioned as firm, apparently by mistake, which was not questioned by the assessee at the time of scrutiny proceedings and a return of income including revised return was filed for A.Y. 2004-05. Having failed to raise the issue at the time of scrutiny proceedings, and the omission being a technical error, I am of the considered opinion that the said error may not vitiate the assessment proceedings. 5.1 Regarding the issue of validity of issue of notice U/s 153C without there being the incriminating material or list of documents as listed U/s 153C, except the entries in diaries, for which the appellant relied on judicial decisions, it can be held that the facts of the case und ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 8377; 20,00,000/- for A.Y. 2004-05. The argument of the appellant that the amounts represent purchases and no profit of 100% can be made on such purchases, is not acceptable for the reason that the appellant never established that the amounts represented purchases and was alone entitled to profits on trading. There is no indication on record to show that there are any purchases against such payments. Further, the appellant failed to explain such angle, even during the appellate proceedings. It is also a fact that the appellant himself has offered ₹ 10,00,000/- as additional income, as income from other sources, while furnishing the revised return of income. It is also pertinent to mention that, the appellant has neither explained that he was capable of earning 50% of profit on such transactions, nor shown the additional income as income from business. The onus was on the assessee to prove that such payments represented purchases and the income earned represented his business income. The head of income under which the additional income offered by assessee also indicate that it was an unexplained investment but not the profits earned on unaccounted purchases/sales made by the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rence. Accordingly, the total income of the assessee for the year under reference, stand modified at ₹ 3,46,130/- (Rs. 2,46,130/- + ₹ 1,00,000/-), against the admitted income of ₹ 2,46,130/-, as against ₹ 12,46,130/- as adopted by the Assessing Officer in the assessment order. The appellant succeeds in getting a partial relief and this ground of appeal for A.Y. 2005-06 treated as partly allowed. 4. The ld DR has produced ordersheet for satisfaction recorded in the name of M/s Suguna Marbles and the satisfaction recorded by the ld. DCIT was as under:- Search and Seizure operations were conducted in case of M/s Midwest Granites Pvt. Ltd. Group on 24/07/2008. This case is notified to DCIT, Central Circle-7, Hyderabad. Search operations conducted in the group includes the case Suguna Marbles wherein documents relating to the assessee were found. As such the case comes under Section 153C of the I.T. Act. Please put up notice U/s 153C calling for Returns of Income for the A.Y. 2003-04 to 2008- 09. 5. Now the assessee is in appeal before us. The ld AR of the assessee has raised grounds mentioned hereinabove and urged that the addition of ₹ 10 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... atisfaction in accordance with law. The ld AR prayed for the dismissal of the assessment proceedings initiated pursuant to the notice U/s 153C of the Act in the light of the order passed in the case of SHETTY PHARMACEUTICALS BIOLOGICAL LTD. (supra). 7. On the other hand, the ld DR has submitted that he has produced ordersheet for satisfaction recorded in the name of M/s Suguna Marbles. The ld. DR has further submitted that though the assessee was issued a notice U/s 153C through the managing partner, Suguna Marbles but the final assessment was completed in the name of the assessee i.e. Dinesh Daliya. It was submitted that in the assessment order, it is mentioned that Suguna Marbles (a proprietorship of Dinesh Daliya). The ld DR, has submitted that even if the submissions of the assessee are accepted in respect of non-recording of satisfaction, then also the assessee shall not be entitled to refund of the tax deposited pursuant to the notice issued U/s 153C of the Act, in view of bar laid down in Section 240 of the Act. 8. We have heard the rival contentions of both the parties and perused the material available on the record and the judgments cited before us. Recently, this ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... revenue are dismissed. Since we are allowing the appeals of the assessee on the ground of non-recording of satisfaction in accordance with law, therefore, we have not dealt with the appeals of the revenue on merit. 9. If we see the satisfaction recorded in the ordersheet, in the present matter also, then the reasoning given by us in the case of M/s Victorian Granites Pvt. Ltd. can equally be applied to hold that the satisfaction recorded by the authority was not in accordance with law and was without application of mind. Therefore, by applying the same reasoning of M/s Victorian Granites Pvt. Ltd., we hereby set aside the proceedings initiated against the assessee U/s 153C of the Act as there was no satisfaction in the eyes of law. 10. Having held that the satisfaction recorded in the ordersheet was not in accordance with law, now we are required to answer whether the assessee will be entitled to refund of the tax amount deposited by the assessee pursuant to the notice received by him U/s 153C of the Act or not. It is admitted case that the assessee received the notices for filing the return of income for the A.Y. 2003-04 to 2009-10 U/s 153C of the Act. The assesse filed t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in this manner by the assessee. The Act also enjoins upon the assessee the duty to file a return of income disclosing his true income. On the basis of the income so disclosed, the assessee is required to make a self-assessment and to compute the tax payable on such income and to pay the same in the manner provided by the Act. Thus, the filing of return and the payment of tax thereon computed at the prescribed rates amounts to an admission of tax liability which the assessee admits to have incurred in accordance with the provisions of the Finance Act and the IT Act. Both the quantum of tax payable and its mode of recovery are authorized by law. The liability to pay income-tax chargeable under s. 4(1) of the Act thus, does not depend on the assessment being made. As soon as the Finance Act prescribes the rate or rates for any assessment year, the liability to pay the tax arises. The assessee is himself required to compute his total income and pay the income-tax thereon which involves a process of self-assessment. Since all this is done under authority of law, there is no scope for contending that Art. 265 is violated. 23. What then is the effect of the failure to make an o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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