TMI Blog2017 (11) TMI 380X X X X Extracts X X X X X X X X Extracts X X X X ..... MEMBER AND SHRI RAM LAL NEGI, JUDICIAL MEMBER For The Assessee : Shri Satish Mody For The Revenue : Shri R.P.Meena/Rajesh Kumar Yadav ORDER PER G.S.PANNU, A.M: The captioned appeals relates to the same assessee pertaining to assessment year 2005-06, therefore, they have been clubbed together and a consolidated order is being passed for the sake of convenience and brevity. 2. First, we may take up the appeal in ITA No.5055/Mum/2011 which is directed against the order passed by the CIT(A)- 41, Mumbai pertaining to the assessment year 2005-06, which in turn has arisen from an order passed by the Assessing Officer dated 31/12/2009 under section 143(3) r.w.s. 153A of the Act. 3. The genesis of this appeal ari ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nal Ground be admitted for adjudication following the ratio of the judgment of the Hon'ble Supreme Court in the case of National Thermal Power Co.Ltd.,229 ITR 383(SC). 5. On the other hand, the Ld. Departmental Representative reiterated that the plea now sought to be raised was not raised before the lower authorities and further that a part of the disallowance made by the Assessing Officer under section 37(1) of the Act has also been admitted before the CIT(A) and, therefore, no relief should be extended on that score. 6. Having considered the rival stands, in our view, the Additional Ground of appeal sought to be raised by the assessee deserves to be admitted since it involves a pure point of law and the necessary facts required ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ;ble Bombay High Court in the case of All Cargo Global Logistics Ltd. (supra) in the ensuing assessment finalized under section 143(3) r.w.s. 153A of the Act, no addition could be made in the absence of any incriminating material found in the course of search. The plea of the assessee is that the additions made by the Assessing Officer in the impugned assessment are without recourse to any incriminating material found in the course of search and are thus, outside the scope of the impugned assessment, as per the proposition laid down by the Hon'ble Bombay High Court in the case of All Cargo Global Logistics Ltd. (supra). 8. In this context, we have perused the assessment order and find that three additions have been made to the income ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... finding that assessee has admitted the disallowance to the tune of ₹ 24,84,694/-. Thus, on this aspect also we find no necessity to make further discussion, as the CIT(A) has allowed part relief and the balance of ₹ 24,84,694/- has been admitted by the assessee itself and there cannot be any further grievance of the assessee . 9. Be that as it may, the only disallowance which is challenged by the assessee before us is the Prior Period expenses and relevant discussion in the assessment order does not show that it is based on any incriminating material found in the course of search. Thus, the ratio of the judgment of the Hon'ble Bombay High Court in the case All Cargo Global Logistics Ltd. (supra) is clearly attracted and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s with respect to the disallowance of Prior Period expenditure of ₹ 19,65,690/-, he has deleted the penalty. Not being satisfied with the order of CIT(A), assessee is in further appeal before us. 13. At the time of hearing, Ld. Representative for the assessee pointed out that even though assessee had admitted the disallowance of ₹ 24,84,694/- in terms of Rules 9A of the Rules before the CIT(A) in the quantum proceedings, yet in the penalty proceedings assessee would be within its right to contend that such a disallowance is not permissible in an assessment made under section 143(3) r.w.s. 153A(1) of the Act, having regard to the ratio of the judgment of the Hon'ble Bombay High Court in the case of All Cargo Global Logisti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r section 271(1)(c) of the Act. Considering the same, we find that the discussion in the assessment order or even in the order of the CIT(A) in the quantum proceedings does not show that the addition of ₹ 24,84,964/- in terms of Rules 9A of the Rules is based on any incriminating material found in the course of search and, therefore, the same is not maintainable in view of the judgment of the Hon'ble Bombay High Court in the case of All Cargo Global Logistics Ltd. (supra). Thus, where the addition itself is otherwise unsustainable, the penalty under section 271(1)(c) of the Act is, therefore, not exigible. Accordingly, we set-aside the order of CIT(A) and direct the Assessing Officer to delete the penalty leviable with respect to ..... X X X X Extracts X X X X X X X X Extracts X X X X
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