TMI Blog2016 (7) TMI 1580X X X X Extracts X X X X X X X X Extracts X X X X ..... date of assessment order. The assessee was not confronted with the alleged material and the statement of Shri Naresh B. Vora which has been used against him, not a single question was asked about the sale of Neptha or his relationship with Ahmadabad and Baroda parties. After analyzing the fact and the alleged corroborative evidence a basic question here arises as whether the addition of income of the assessee can be made on the basis of the above referred material. CIT(A) find its answer in No. No illegality or infirmity in the order of CIT(A) in deleting the addition on account of sale of Neptha, thus, this ground of appeal raised by Revenue is dismissed. Addition on account of sale of delivery orders - HELD THAT:- Mr. Vora informed that Sunil Thakkar had obtained chemicals in the name of Galaxy Petrochem and sold it in the market. The assessee has totally denied his involvement and argued that no paper were found at the premises of the assessee nor were found during the survey of premises of Naresh Vora. Ld. CIT(A) while considering this ground concluded that the addition cannot be sustained u/s. 158BC in absence of independent, primary evidence found and seized during searc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rse of search and seizure action, no incriminating document or evidence was found that may prove the withdrawals made by assessee or his family members were inadequate to run the Household. AO has not mentioned that the total withdrawal made by members of the assessee s family, whereas the assessee had strongly emphasized the point. AO has not done this exercise otherwise he would not have reached to the conclusion that Household Expenditure incurred by family was sufficient and deleted the addition. The finding of CIT(A) deleting the addition are quite reasonable - Decided against revenue. - IT(SS)A No.173/Mum/2006 - - - Dated:- 5-7-2016 - SHRI R.C. SHARMA, ACCOUNTANT MEMBER AND SHRI PAWAN SINGH, JUDICIAL MEMBER For the Revenue : Shri Alok Johri (DR) For the Assessee : Shri Vijay Mehta (AR) ORDER PER PAWAN SINGH, JM: 1. This appeal filed by Revenue against the order of CIT(A)-VIII, Mumbai, dated 14.03.2006 for block period 01.04.1988 to 13.02.1999. The Revenue has raised the following Grounds of appeal:- 1. On the facts and in the circumstances of the case and in law, the Ld.CIT (A) erred in not appreciating the finding given in the assessment ord ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Hawala Business and that he was providing accommodation entries to various parties. As per statement of Nitin B. Vora, he was holding a quota of Naphtha which he used to sale in the open market for cash at a high premium and would issue bogus bill to the seller of Naphtha and dealers of other petro chemicals, he would also received cash from Bank and issued cheque on commission basis. The parties involved in the Hawala Transaction with the Vora s group to procure used chemical from public sector companies for specified purpose but were sold to a party on all supplied in cash or premium. The premium on the sale of the Petro Chemical was not reflected in the books of account of those parties. One of those parties doing the said business was Thakkar family. Thakkar family consists of Manoj Thakkar and his three sons namely Atul M. Thakkar, Mayur M. Thakkar and Sunil M. Thakkar (assessee), these persons were identified as individual to send cash for obtaining entries. Mayur Thakkar was one of the Director of Ram Remidies Pvt. Ltd. (RRPL) and was holding 33% as share in the company, thereafter a search u/s. 132(1) of the Act was carried out at the residential and business premises of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Representative (AR) for the assessee and perused the material available on record carefully. We have further gone through the written submissions filed by parties and considered there oral submissions. DR for the Revenue argued that it is not necessary that incriminating material to be found at the residence of person only to link him but there was sufficient material seized at the time of survey on the Vora family on 24.09.1998, and further on the statement of Nitin B. Vora and Sudhir Vora recorded on 25.09.1998, 15.11.1998 and 16.11.1998. Further when a search was conducted at Thakkar family on 20.01.1999 and a sum of ₹ 69 Lakhs was seized during the search proceeding which consist of cash and jewellery. Further cash was seized from the premises of Manoj M. Thakkar with whom Sunil M. Thakkar, assessee (Manoj M. Thakkar) were lived jointly. DR further argued that further a cash of ₹ 11.03 Lakhs and 11.06. Lakhs were seized from the resident of Mayur M. Thakkar and Locker of Smt. Usha M. Thakkar (wife of Mayur M. Thakkar). It was further argued that during the investigation, it was revealed that cash sales were being made by Thakkar family and part sale consideration w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... AR for assessee in his written submissions relied upon the following decisions. Morarji Gokaldas Spinning and Weaving Co. Ltd vs DCIT(95 ITD 1(Bom). DCIT versus Sanmukdas Wadwani (85 ITD 734 Nagpur) CIT versus Vikram A Doshi(256 ITR 129(BOM) CIT versus Vinod Danachand Godawat (247 ITR 448 Bombay) CIT versus Rajendra Prasad Gupta (248 ITR 350 Raj) CIT versus Smt. Usha Tripathi (249 ITR 4 All) CIT versus Ravi kant Jain(250 ITR 141 Delhi) Sunder Agencies versus DCIT( 63ITD 245Mum) Nagindass M Garadia versus DCIT(83 TTJ 151 , Mumbai) Rajkumar Jain versus ACIT (120 CTR 143 All) Laxmi Jewellery Vs CIT (73 TTJ 1) Madras) 5. We have considered the rival contentions of the parties and perused the material available on record. Before we may discuss the facts of the present case, let us examine the provisions relating to the computation of undisclosed income of the block period as provided in Chapter XIVB of the Act, which is read as under: Procedure for block assessment. 158BC. Where any search has been conducted under section 132 or books of account, other documents or assets are requisitioned under section 132A, in the case of any person, then, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d relatable to such evidence, as reduced by the aggregate of the total income, or as the case may be, as increased by the aggregate of the losses of such previous years. Thus while determining / computing the undisclosed income of block period the AO shall compute the income on the basis of evidence found as a result of search or requisition of books of account. This is so, because, the correctness or otherwise the return filed in pursuance of a notice u/s 158BC (a) has to be examined with reference to the material in possession of the AO having nexus to the assessment of undisclosed income which is with the assessing authority. So the block assessment has to be framed in the light of material came in to the possession of the assessing authority during the search, which is the foundation of the proceedings. The Ld DR for revenue further relied upon the case of CIT versus Calcutta Knitwears and CIT versus Mukundray K Shah (supra). Most regard to the decision of Hon ble Apex Court, wherein, in both the cases the main issue before the Apex Court was whether Assessing Officer can record his satisfaction for issuing notice under section 158BD in case of person other than searched p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sessment order. The assessee was not confronted with the alleged material and the statement of Shri Naresh B. Vora which has been used against him, not a single question was asked about the sale of Neptha or his relationship with Ahmadabad and Baroda parties. Ld. CIT(A) referred the statement of Naresh B. Vora dated 15.10.1998 and particular the question no.3, 4 5 and their answers and further referred page 30 of assessment order. Ld. CIT(A) specifically referred the page no. 53 of assessment order, wherein the AO mentioned/observed that numerous evidence collected during the course of search and further details gathered during the block assessment proceedings clearly established the fact that assessee was engaged in the sale of Neptha and other petro chemical in the open market by collecting the entire sale proceed in cash and profit earned on such sale was never recorded .After analyzing the fact and the alleged corroborative evidence a basic question here arises as whether the addition of income of the assessee can be made on the basis of the above referred material. Ld. CIT(A) find its answer in No. Thus, we do not find any illegality or infirmity in the order of CIT(A) in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... addition made by AO is not as per the provision of law. Except the statement of Naresh Vora, no other document seized during the search has been referred by AO for making the addition and deleted the addition. We have noticed that Mr. Vora has not alleged anywhere that assessee was working on behalf of Atlas, Avani or Ankini. With these observations, we do not find any illegality or infirmity in the order of ld. CIT(A), thus this ground of appeal of Revenue is also failed. 10. Ground No. 4 is our consideration is about deleting the addition of ₹ 2,00,000/- on account of Foreign Tour Expenses. DR for revenue argued in support of order of AO and prayed that order of AO may be restored. Ld. AR of assessee argued that during the search seizure proceedings, no incriminating documents were found which could be linked with the foreign trip of assessee. We have considered the contention of both the parties and perused the finding of authorities below. The assessment order is silent about the evidence which may prove that assessee spend ₹ 2,00,000/- on foreign trip in AY-1998-99 and/or the said money was unaccounted income of the assessee. In fact, during the assessment pro ..... X X X X Extracts X X X X X X X X Extracts X X X X
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