TMI Blog2016 (1) TMI 1450X X X X Extracts X X X X X X X X Extracts X X X X ..... ined. Accordingly, assessee's contentions are accepted. The impugned orders are accordingly set aside. - ITA No. 1764Hyd/2013 - - - Dated:- 8-1-2016 - Smt. P. Madhavi Devi, Judicial Member And Shri S. Rifaur Rahman, Accountant Member For the Petitioner : Shri P. Murali Mohan Rao For the Respondent : Shri M. Sitaram ORDER Per S. Rifaur Rahman, A. M. This appeal is preferred by the assessee against the order of CIT(A)-III, Hyderabad dated 13th November, 2015 for the AY 2007-08. 2. Briefly the facts of the case are, the assessee, an individual, derives income from business. He filed his return of income for the AY 2007-08 on 13th November, 2013. The AO completed the assessment on 23/12/2009 u/s 143(3) r.w.s. 153A determining the total income at ₹ 3,30,551/- by making an addition of ₹ 30,000/- on account of low household withdrawals. 3. Briefly the facts relating to the said addition are, a search and seizure operation u/s 132 of the Income-tax Act, 1961 (in short Act ) was conducted in the premises of the assessee and his family. During the course of search documents relating to the assessee were seized vide annexure A/SA s/02, dated 0 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and in the absence of concrete evidence, the addition made should be deleted. 6. After considering the submissions of the assessee, the CIT(A) sustained the addition following the decision in the case of Anil Agarwal vide ITA No. 0457/2009-10. 7. Aggrieved by the order of CIT(A), assessee is in appeal before us and has raised the following grounds of appeal: 1. The Ld. CIT(A) erred both in law and on facts of the case in upholding the addition made by the LeI . A.O Dis 143(3) LW.S. 153A of the I.T. Act 1961. 2. The Ld. CIT(A) erred in upholding the addition of ₹ 30,000/- made towards low household withdrawals. 3. The Ld CIT(A) erred in upholding the addition of₹ 30,000/- without making any inquiry as to the standard of living of the appellant. 4. The Ld CIT(A) ought to have appreciated the fact that the AO's addition is not supported by any evidence and is made on random calculations. 7.1 In addition to the above grounds, the assessee filed the following additional grounds relying on the decision of the Hon ble Supreme Court in the case of National Thermal Power Co. Ltd. Vs. CIT [1998] 229 ITR 383 (SC): 1. The ld. CIT(A) ough ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g Officer is satisfied that,-- (a) any money, bullion, jewellery or other valuable article or thing, seized or requisitioned, belongs to; or (b) any books of account or documents, seized or requisitioned, pertains or pertain to, or any information contained therein, relates to a person other than the person referred to in section 153A, then, the books of account or documents or assets, seized or requisitioned shall be handed over to the Assessing Officer having jurisdiction over such other person] [and that Assessing Officer shall proceed against each such other person and issue notice and assess or reassess the income of the other person in accordance with the provisions of section 153A, if, that Assessing Officer is satisfied that the books of account or documents or assets seized or requisitioned have a bearing on the determination of the total income of such other person for the relevant assessment year or years referred to in sub-section (1) of section 153A] : Provided that in case of such other person, the reference to the date of initiation of the search under section 132 or making of requisition under section 132A in the second proviso to sub-section (1) o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ioned shall be handed over to the Assessing Officer having jurisdiction over such other person by the Finance Act, 2015, w.e.f. 1-6-2015. 20. Substituted for and that Assessing Officer shall proceed against each such other person and issue such other person notice and assess or reassess income of such other person in accordance with the provisions of section 153A by the Finance (No. 2) Act, 2014, w.e.f. 1-10-2014 . 7. As can be seen from the above, if there was incriminating material AO should come to a satisfaction while initiating proceedings. The Hon'ble AP High Court in the case of CIT Vs. M/s. Shettys Pharmaceuticals Biologicals Ltd. In ITTA No. 662 of 2014 dated 26-11-2014 (supra) has considered similar facts and held as under: The learned Tribunal in this case did not accept the initiation of the action under Section 153C of the Income Tax Act, 1961 (hereinafter referred to as the Act). This action has to be taken against a third party in respect of the incriminating material brought out in connection with search and seizure conducted on another party Section 153C of the Act specifically says that the Assessing Officer must be satisfied that such ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... satisfaction of two officers is missing. In this connection we set out the text of the order of the Assessing Officer which is as follows. A search and seizure operation u/s. 132 was carried out in the group case of Dr. T. Yadhaiah Goud and others on 25 3 2010. During the course of search operation documents belonging to SHETTY PHARMACEUTICALS BIOLOGICAL LTD., has been seized. Hence it is considered to initiate proceeding u/s. 153C of the I.T.Act. The aforesaid Section mandates recording of satisfaction of the Assessing Officer(s) is a pre-condition for invoking jurisdiction and it is not a mere formality because recording of satisfaction postulates application of mind consciously as the documents seized must be belonging to the any other person other than the person referred to in Section 153- A of the Act. It is contended that the same Assessing Officer is involved in the matter. This fact does not dispense with above requirement. It is settled position of law that when a thing is to be done in one particular manner under law this has to be done in that manner alone and not other way (See Nazir Ahmed v. King Emperor). We think the learned Tribunal has correctly foll ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
