TMI Blog2018 (12) TMI 1141X X X X Extracts X X X X X X X X Extracts X X X X ..... m Jain, Adv And Sh. Lalit Mohan, CA For The Respondent : Sh. Sandeep Kumar, CIT DR ORDER PER SUCHITRA KAMBLE, JM This appeal is filed by the Revenue against the order dated 29/09/2015 passed by CIT(A)-XXVI, New Delhi for Assessment Year 2006-07. 2. The grounds of appeal are as under:- 1. The order of Ld. CIT (A) is not correct in law and on facts. 2. That the CIT (A) has substantially erred on facts and in law in condoning the delay in filing of appeal without considering the illegal conduct of the assessee during the search operations including manhandling the search officers, looting of seized material and registration of criminal case against the promoters of the group and their associates due to such criminal actions. 3. That the CIT (A) has erred on facts and in law in condoning the delay in filing of appeal without considering the non compliant and highly non cocooperative conduct of the assessee during the original assessment proceedings and the reassessment proceedings after the revision order passed by the CIT u/s 264 of Act. 4. That the CIT (A) has substantially erred on facts and in law in condoning the delay in fi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sing Officer to rebut the submissions filed by assessee. 13. The CIT(A), being a fact finding authority, has erred in facts and in law in allowing the appeal of the assessee without independently verifying the facts of the case, as mandated by the Hon ble Delhi High Court in the case of CIT Vs Jansampark Advertising (375 ITR 373). 14. The CIT (A) has erred in relying upon submissions made by the assessee before the CIT in the course of proceeding u/s 264 of the Act in allowing the relief on various grounds without appreciating that the matter was set aside by the CIT to the file of the AO to re-examine the issues afresh and the assessee had not made any compliance before the AO in the course of set aside proceeding and therefore the issue remained unexamined. 3. The assessee company is dealing in real estates, land trading and development. A search was conducted at the officer premises of the company on 31.01.2008. Accordingly, a notice u/s 153A was issued on 24.11.2008 and again notice u/s 142(1) alongwith questionnaire was issued on 19.10.2009. The assessee did not file return of income in response to the notices within the time allowed. On 25.11.2009, the assess ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Section 153A(1) of the Act, read with the proviso thereto, and in the light of the law explained in the aforementioned decisions, the legal position that emerges is as under:- ( a) Once a search takes place under Section 132 of the Act, notice under Section 153A : will have to be mandatory issued to the person searched requiring him to file reruns for six AYs immediately preceding the previous year relevant to the AY in which the search takes place. ( b) Assessments and reassessments pending on the date of the search shall abate. The total income for such AYs will have to be completed by the AOs as a fresh exercise. ( c) The AO will exercise normal assessment powers in respect of the six years previous to the relevant AY in which the search takes place. The AO has the power to assess and reassess the 'total income of the aforementioned six years in separate assessment orders for each of the six years. In other words there will be only one assessment order in respect of each of the six AYs in which both the disclosed and the undisclosed income would be brought to tax. ( d) Although Section 153A does not say that additions should be strictly mad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Ld. DR disputed the same, but could not demonstrate that the documents are incriminating in nature. In fact, these documents prove the transactions of the assessee as claimed by the assessee in its books of accounts which were produced before the Assessing Officer during the assessment proceedings. As regards merit of the case are concerned the relevant extracts of the order of the CIT(A) are as under: 18. 1 have considered the facts of the case, the basis of addition made by the AO and the arguments of the AR during the assessment proceedings as well as reassessment proceedings It is seen that the appellant had claimed the allowance of the impugned expenses on the ground that the same were incidental and necessary in carrying on the business but despite specific requirement of the AO, the evidence of having incurred the said expenses was not filed. In the circumstances, the AO was correct in disallowing the same. The expenses like audit fees, printing and stationary, ROC filing fees though more or less mandatory in nature have to be shown to be paid and necessary vouchers to support the same has to be filed, which has not been done. Therefore, the same cannot be allowed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pany which clearly shows that the amount outstanding towards M/s Lakshya Buildtech stands squared up by the payment made by M/s Vatika Landbase P Ltd and accordingly at the end of the year, the amount was outstanding not towards M/s Lakshya Buildtech but towards M/s Vatika Landbase P Ltd. It is quite logical that if the said advance received from M/s Lakshya Buildtech was of any doubtful nature so as to be in the nature of appellant's own unaccounted income, then there was no necessity to square it up by payment made by cheque on behalf of the assessee by M/s Vatika Landbase P Ltd. It is also seen that the said transaction has been confirmed by M/s Vatika Landbase P Ltd. The said confirmation -it been filed by the appellant at the stage of proceedings u/s 264. In view of the above detailed analysis of the submission made by the appellant, the observation of the AO in the assessment order that no details had been filed at any stage is contrary to the facts on record. In the circumstances, the burden cast upon the appellant u/s 68 was clearly discharged by bringing on record the various facets of the transaction. It is not the case that any queries had been caused by the AO to br ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l that the said amount had been returned in this FY on 20.04.2005 and 21.04.2005. The same reply had been reiterated by the appellant vide his reply dated 26.02.2013. It is also seen that the AO in his report to the CIT(C) -2 u/s 264 had clearly admitted that no specific reason had been pointed out by the AO to make the impugned addition of ₹ 1 crore and the submissions made by the assessee were received after passing of the original assessment order. In view of these facts, it becomes apparent that the AO in the reassessment proceedings did not refer to the assessment record or to the reply filed on 26.02.2013 and proceeded to make the impugned addition on the presumption that the said credits were unexplained. The facts clearly show that the appellant had advanced amounts to Smt Priti Paul and Sh Sandeep Paul in the FY 2004-05 in pursuance of proposed purchase of land and the amounts received during the year under consideration from the same persons is on account of refund only. It is another matter that the AO in the FY 2004- 05 had treated the said advances as unexplained as well. In view of the above detailed facts and circumstances of the case, the said credits in the b ..... X X X X Extracts X X X X X X X X Extracts X X X X
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