9911796707
TMI Blog2013 (10) TMI 1419X X X X Extracts X X X X X X X X Extracts X X X X ..... ed sales. It is settled law that the sales as such cannot be added as income. At the most some profit percentage can be estimate. It be held accordingly. 2. On the facts and circumstances of the case and in law the Ld. CIT(A) Kolhapur was not justified in confirming the addition made by A. 0. Of Rs. 2,28,000/- being difference between valuation made by DVO and the investment recorded in the books of account in the immovable property. The valuation made by DVO resorting to provisions of S. 142A(1) is only based on estimated valuation. It cannot be called actual undisclosed income for assessment u/s 153A(b) of the Act. The addition be deleted. 3. On the facts and circumstances of the case and in law the assessment for the year under appeal should have been completed under S. 153A(b) and not under S. 143(3) only considering the search action conducted on 18-4-2007 and 20-4-2007 which falls in A. Y. 2008-09. In view of the legal position the assessment having not made under S. 153A is bad in law and without jurisdiction. It be quashed. 4. On the facts and circumstances of the case and in law the Ld. CIT(A)-Kolhapur was not justified in rejecting the claim of the appellant regarding ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the following decisions: 1. Dr. K.M. MahaboobVs. DCIT &Anr. (2012) 76 DTR (Ker) 90. 2. M/s. BahubaliNeminathMuttin Vs. ACIT, Central Circle-I, Belgaum, ITA Nos. 161 &165/PN/2010 order dated 08-07-2011. 3. Dr. MansukhKanjibhai Shah Vs. ACIT (2010) 36 (II) ITCL 62 (Ahd) order dated 21-05-2010. 4. DCIT, Circle-1(1), Ujjain Vs. Sushil Kumar Jain (2010) 127 ITD 264 (INDORE). 5. M/s. Giridhar& Sons Vs. JCIT (OSD) Central Circle, Kolhapur, ITA No. 1358/PN/2007 order dated 30-08-2011. We have also heard the Ld. DR. 22. In the case of Dr. K.M. Mahaboob (supra),batch of writ petitions were filed with prayer to quash the assessment orders passed, in consequence of the search and seizure action (u/s. 144 r.w.s. Sec. 153A and 153C of the Act) for the A.Ys. 2003-04 to 2009-10. It was the case of the assessee-petitioner that notices u/s. 153A were issued only for the A.Ys. 2003-04 to 2008-09 and there was no notice for the A.Y. 2009-10. It was also stated that the six assessment years in respect of which assessment could have been made u/s. 153A were the A.Ys. 2003-04 to 2008-09 and that the assessment for the A.Y. 2009-10 was also made u/s. 144 r.w.s. 153C of the Act which was patently ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fact support case of the Revenue. 24. The Tribunal has occasion to consider the identical issue in the case of AkbaniSalim Abdul Gaffar Vs. DCIT, Central Circle, Kolhapur, ITA No. 873/PN/2008 order dated 31-08-2012. In the said case, the assessment was completed u/s. 143(3) for the A.Y. 2005-06 and the assessee took the stand that the Assessing Officer was legally bound to pass the assessment order u/s. 153A/153B of ITA No. 1134, 1135, 1136, 1137, 1138 & 1139/PN/2012 the Act as there was a search and seizure action against the assessee u/s. 132 of the Act on 02-02-2005. In the said decision this Tribunal has considered the decisions relied on by the Learned Counsel in the following cases - (1) Sushil Kumar Jain (supra), (2) M/s. Bahubali Neminath Muttin (supra) and (3) Dr. Mansukh Kanjibhai Shah (supra). The operative part of the decision is as under: 8. We find that the contention of the Ld. Counsel is well supported by the decision in the case of Shri Sushil Kumar Jain (Supra) as well as M/s. Bahubali Neminath Muttin (Supra). In the case of Shri Sushil Kumar Jain which is the lead case and has held by the co-ordinate Bench even in respect of the assessment relevant to the previ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... taken by the assessee in A.Y. 2007-08 and respective ground is dismissed 5. In this case also, the assessment of the assessee has been completed within the time limit prescribed u/s. 153B(1)(b) of the Act hence, the assessee should not have any grievance. Moreover, this issue stands covered against the assessee by the decision of this Tribunal in the case of Bindra Group (supra). We, therefore, following the decision in the case of Bindra Group (supra), dismiss the Ground No. 3. 6. In the Ground No. 1 the assessee has raised grievance for confirming the addition made by the Assessing Officer of Rs. 4,50,000/- towards unaccounted sales. The Assessing Officer has observed that the assessee is a Prop. of M/s. Sahara Wine and doing the trading of wine on retail basis. During the course of survey action (or search action?) at the business premises of the assessee, certain loose papers were found, which were impounded. As per the seized loose papers/note book all sales were not recorded in the regular books of account and said factual position was also admitted by the assessee. The assessee contended that the income generated from unaccounted sale was already offered in the form of ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 13 as well as the decision of the Hon'ble High Court of Gujarat in the case of Goodluck Automobiles (P.) Ltd. Vs. ACIT (2012) 26 taxmann. Com 254 (Guj.). We, therefore, allow the Ground No. 2 and delete the addition of Rs. 2,28,000/-. Accordingly, the Ground No. 2 is allowed. 9. In the Ground No. 4, the grievance of the assessee is that the cash seized during the course of search should have been adjusted against the advance tax payable in view of Sec. 132B of the Act and no interest should have been levied u/s. 234B and 234C of the Act. 10. We have heard the parties. The Learned Counsel fairly admitted that no specific request was made by the assessee for adjusting the seized cash. In our opinion, if the assessee has not requested the Department for adjustment of the seized cash, in such situation the assessee cannot escape from the levy of interest u/s. 234B and 234C of the Act. We find no merit in the Ground No. 4 and the same is dismissed. In the result, the assessee's appeal is partly allowed. ITA No. 1135/PN/2012, Sou. Preeti Uddhav Meghani (A.Y. 2007-08) 11. In this case, the assessee has taken the following two grounds: 1. On the facts and circumstances of the c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s of the case and in law the Ld. CIT(A) was not justified in confirming the addition made by the A. 0. of Rs. 15,000/-. The same be deleted. 3. On the facts and circumstances of the case and in law the assessment for the year under appeal should have been completed under S 153A(b) and not under S. 143(3) only considering the search action conducted on 18-4-2007 and 20-4-2007 which falls in A. Y. 2008-09. In view of the legal position the assessment having not made under S. 153A is bad in law and without jurisdiction. It be quashed. 4. On the facts and circumstances of the case and in law the Ld. CIT(A)-Kolhapur was not justified in rejecting the claim of the appellant regarding levy of interest under S. 234B/234C of the Act especially in view of the fact that the cash seized during the course of search action was required to be adjusted against advance tax payable in view of S. 132B of the Act. The levy of interest u/s 234B and 234C be reduced accordingly. 16. So far as the Ground No. 1 is concerned, the grievance of the assessee is that the addition of Rs. 92,000/- is made on the basis of the DVO report. As a reference was made u/s. 142A of the Act the DVO report is only an est ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ons of S. 142A(1) is only based on estimated valuation. It cannot be called actual undisclosed income for assessment u/s 153A(b) of the Act. The addition be deleted. 3. On the facts and circumstances of the case and in law the Ld. CIT(A)-Kolhapur was not justified in rejecting the claim of the appellant regarding levy of interest under S. 234B/234C of the Act especially in view of the fact that the cash seized during the course of search action was required to be adjusted against advance tax payable in view of S. 132B of the Act. The levy of interest u/s 234B and 234C be reduced accordingly. 21. So far as Ground No. 1 is in respect of the addition of Rs. 66,120/- towards the low house hold expenditure. We have heard the parties and perused the record. The Assessing Officer has noted that the assessee maintaining two families, consisting of nine members of himself, and his brother. The Assessing Officer has also given the chart of withdrawal assessment year-wise of all the members of the family. The Assessing Officer finally worked out the yearly expenditure and made the addition of Rs. 1,92,000/- in the A.Y. 2007-08. The assessee carried the issue before the Ld. CIT(A), who gave ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not justified in rejecting the claim of the appellant regarding levy of interest under S. 234B/234C of the Act especially in view of the fact that the cash seized during the course of search action was required to be adjusted against advance tax payable in view of S. 132B of the Act. The levy of interest u/s 234B and 234C be reduced accordingly. 25. So far as the Ground No. 1 is in respect of the addition towards house hold expenditure. The identical issue has been decided by us in assessee's own case for the A.Y. 2007-08. Following the reasons given on this issue, we dismiss Ground No. 1. 26. Ground No. 2 is not pressed by the assessee. Accordingly, the Ground No. 2 is dismissed as "not pressed". 27. In the Ground No. 3 the assessee has raised the grievance that so far as the A.Y. 2008-09 is concerned the assessment should have been completed u/s. 153A and not u/s. 143(3). The identical issue has been decided in the case of Sou. Divya Jayram Meghani (A.Y. 2008-09) being ITA No. 1134/PN/2012. Following the reasons given on this issue in the said case, we dismiss the Ground No. 3. So far as the Ground No. 4 is concerned it is in respect of levy of interest u/s. 234B/234C of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ards low house hold expenditure. We have heard the parties. The identical issue has been considered and decided in cases of the other family members and addition has been confirmed. We, therefore, following the reasons given in confirming the addition in the other family members, in the case of present assessee addition is confirmed and accordingly Ground no. 1 is dismissed. So far as Ground No. 2 is concerned it is in respect of the addition of Rs. 92,000/- made by the Assessing Officer on the basis of the DVO report. The identical issue has been decided in the cases of other family members and addition has been deleted. Following the reasons for deleting the addition in the other family members, in the case of the present assessee also, the addition of Rs. 92,000/- is deleted and Ground No. 2 is allowed. So far as the Ground no. 3 is concerned the grievance of the assessee is that in the A.Y. 2008-09 the assessment should have been completed u/s. 153A(b) of the Act and not u/s. 143(3) of the Act. The identical issue has been decided by us in the case of other family members i.e. Sou. Divya Jayram Meghani (A.Y. 2008-09) being ITA No. 1134/PN/2012. Following the reasons given in th ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
