TMI Blog2018 (8) TMI 1132X X X X Extracts X X X X X X X X Extracts X X X X ..... ed assessment. Therefore, the additions, if any have to be made only with the support of any incriminating material. - ITA Nos. 472 to 475/PUN/2012 - - - Dated:- 3-8-2018 - SHRI D. KARUNAKARA RAO, AM AND SHRI VIKAS AWASTHY, JM Assessee by : Shri Nikhil Pathak Revenue by : Shri T. Vijaya B. Reddy ORDER PER D. KARUNAKARA RAO, AM There are 4 appeals of the assessee under consideration involving A.Yrs. 2002-03 to 2005-06. The appeals are filed against 4 different orders of the CIT(A) Central, Pune, commonly dated 24-11-2011. Assessee raised almost similar grounds in all the appeals, therefore, Appeal No.472/PUN/2012 for A.Y. 2002-03 is taken as a standard one. ITA No.472/PUN/2012 A.Y. 2002-03 2. The grounds of appeal raised by the assessee are extracted as under : 1. The Ld.CIT(A) erred in holding that the asst. made by the Ld. AO u/s.153A r.w.s. 143(3) was valid without appreciating that no notice u/s.143(2) was issued by the Ld. AO within the time limit prescribed and hence, the said asst. order passed by the Ld. AO was null and void. 1.1 The Ld.CIT(A) erred in holding that no notice u/s.143(2) was required to be served on the appellant for t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erest u/s.234A, 234B 234C and the same ought to be deleted. 7. The appellant craves leave to add, alter, amend or delete any of the above grounds of appeal. 3. Referring to the above said grounds, Ld. AR for the assessee brought our attention to Ground Nos. 1, 1.1 and 1.2 and submitted that the said grounds have to be decided against the assessee in view of the binding High Court judgment in the case of Ashok Chaddha vs. ITO reported in 337 ITR 399 (Del.) which is relevant for the proposition that the issue of notice u/s.143(2) of the Act is not mandatory in a case of the assessment made u/s.153A of the Act. Ld. AR filed the written note relying on the said proposition. Considering the concession given by the Ld. AR for the assessee in this regard by virtue of the judgment of Hon ble Delhi High Court cited (supra), the said ground Nos. 1, 1.1 and 1.2 are dismissed. 4. Referring to the Ground Nos. 2, 3, and 3.1, Ld. AR for the assessee submitted that the said grounds are not being pressed. Considering the concession given by the Ld. AR, the same are dismissed as not pressed . 5. Referring to the Ground Nos. 6 and 7, Ld. AR for the assessee submitted that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e houses as self occupied. The annual value of the other houses has to be determined as if it had been let out. Accordingly, the income from the Kondhwa flat is computed as it is let out. In the subsequent years the assessee has shown rent income from this property at ₹ 60,000/-. Accordingly, the annual value of this property is taken at ₹ 60,000/- and property income computed accordingly is added to the assessee s income. As the assessee concealed the particulars of this income penalty proceedings u/s.271(1)(c) are initiated. 7. In the First Appellate proceedings, the above two additions were confirmed by the CIT(A) dismissing the appeal of the assessee. BEFORE THE TRIBUNAL 8. During the proceedings before us, Ld. AR for the assessee brought our attention to the above grounds relevant to the additions in question, i.e. ₹ 42,000/- on account of income from Kondhwa Flat and ₹ 19,200/- on account of claim of agricultural income and submitted that the AO made these additions (1) in the absence of any incriminating material and (2) based on information disclosed in the balance sheet and financial statements of the assessee originally disclosed in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is not pending as on the date of search and in the absence of any incriminating evidence, no addition can be made in the asst. completed u/s153A. For this proposition, the assessee has placed reliance on the decision of Hon'ble Bombay H.C. in the case of Deepak Kumar Agarwal and the decision of Hon'ble ITAT, Pune in the case of Shri Gajendra Pawar [ITA No. 1009 -1012/PN/15]. Accordingly, in view of the above decisions, the assessee submits that the addition made on account of income from house property without any incriminating evidence is bad in law and the same may kindly be deleted. 5] Ground Nos. 5 - 5.1 : Addition of ₹ 19,200/- 5.1] This issue is discussed by the A.O. in para 3 of the asst. order. The assessee has shown agricultural income of ₹ 19,200/- in his return filed prior to search. The learned A.O. has taxed the said amount as income from other sources. The assessee submits that on this issue no incriminating evidence was found as a result of search and in view of the above referred decisions, the addition made is not warranted. Even, the learned A.O. in the asst. order has not referred to any incriminating evidence relating to this issu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e u/s.143(2) is not mandatory in case of the assessment made u/s.153A of the Act. Considering the concession given by the Ld. AR for the assessee, the Grounds of appeal No.1, 1.1 and 1.2 raised by the assessee in these appeals are dismissed in view of the judgment of Hon ble Delhi High Court in the case of Ashok Chaddha vs. ITO (supra). Accordingly, the said grounds are dismissed for all the A.Yrs. 2003-04 to 2005-06. 14. Ld. AR for the assessee submitted that Ground Nos. 2, 3 and 3.1 raised by the assessee in all these appeals are not being pressed. Therefore, the said grounds in all these appeals are dismissed. 15. Ld. AR for the assessee submitted that Ground Nos. 4, 4.1, 5 and 5.1 relates to the additions made by the AO are on account of Kondhwa Flat and claim of agricultural income without having support of any incriminating material whatsoever. The issues are identical to that of A.Y. 2002-03. Therefore, these additions made by the AO are unsustainable and have to be deleted in principle. 16. After hearing both the sides, we find the issues raised by the assessee in these appeals are identical to that of issues in A.Y. 2002-03. We have already held that these addi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s order. According to him, the assessee had purchased lands which were shown as an investment by the assessee. The learned A. O. has considered the lands purchased as stock in trade. Now, the lands purchased are duly accounted in the books. The cash paid by the assessee for purchase of land and treated as an investment is duly accounted in the books. The A.O. has disallowed the payment made u/s 40A(3). The assessee submits that all the amounts are duly accounted in the books and in the absence of any incriminating evidence, no addition is warranted in the hands of the assessee. The assessee places reliance on the decisions of Hon'ble Bombay H.C. in the case of Deepak Kumar Agarwal and the decision of Hon'ble ITA , Pune in the case of Shri Gajendra Pawar [ITA No. 1009- 1012/PN/15]. Accordingly, the disallowance made is not justified. 21. Ld. DR for the Revenue relied on the orders of AO/CIT(A). 22. After hearing both the parties and perusing the orders of the Revenue as well as the written submissions of the assessee, we are of the opinion that the assessments made by the AOs are non-abated assessments. The addition made by the AO on this issue cannot be sustained o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the search, the relevant details were duly submitted of the sale of land. The copy of the return is on pages 1 - 6 of the Paper Book. In the course of search, the dept. has not found any incriminating evidence relating to this issue. The learned A.O. has also not referred to any incriminating evidence relating to this issue in the asst. order. Accordingly, in the absence of any incriminating evidence, no addition can be made on this issue. 25. Ld. DR for the Revenue relied on the orders of the AO and the CIT(A). 26. We heard both the sides and perused the orders of the Revenue as well as the written submissions of the assessee. Considering the fact that the assessments made by the AOs are non-abated assessments, we are of the opinion that the addition made by the AO on this issue cannot be sustained on technical grounds in the absence of any incriminating material. Thus, we concur with the arguments of the Ld. AR for the assessee and therefore, direct the AO to delete the addition made by the AO in these assessment years under consideration. Accordingly, the Ground No. 7 and 7.3 raised by the assessee in the appeals for A.Yrs. 2003-04 and 2005-06 stands allowed in favour o ..... 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