TMI Blog2014 (12) TMI 1386X X X X Extracts X X X X X X X X Extracts X X X X ..... the AO and confirmed by the learned CIT(A) is bad in law. We, therefore, allow original ground as well as additional ground of the appeal. Addition u/s 68 on gift received treated as unexplained - HELD THAT:- Both the authorities below have categorically held that the assessee failed to prove the genuineness of transaction and creditworthiness of the donor. No confirmation of gift was filed along with the return of income of the assessee. It is claimed that the alleged gift was made in cash but the donor was not produced before the AO for examination. At this stage also, the assessee could not prove the genuineness of the transaction and creditworthiness of the donor. No additional evidence, whatsoever, was filed before us. in the absence of any supporting evidence, we are of the view that the addition is fully justified. Disallowance on account of forfeiture of EMD made beyond the scope of s. 153A - HELD THAT:- Assessee did not bring any material on record to prove that the EMD amount as been forfeited by BPCL. In the absence of any documentary, evidence regarding forfeiture of EMD, the claim of the assessee cannot be accepted. At this stage also, the assessee has not b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... TR 383 (SC). 5. Briefly stated, the facts of the case are that the assessee is an individual, earning interest income and income from hiring charges. A search and seizure operation under s. 132 of the IT Act, 1961 (in short 'the Act') was carried out at various business and residential premises of the Jaswani Group of Companies on 10th Nov., 2005 including residential premises of the assessee. The notice under s. 153A dt. 31st Jan., 2007 was served on the assessee on 6th Feb., 2007 for the asst. y₹ 2000-01 to 2005-06. In response to the said notice, the assessee filed his return of income for asst. yr. 2000-2001 on 8th Aug., 2007 declaring total income at ₹ 95,820 and agricultural income of ₹ 60,000. The AO framed assessment under s. 153A r/w s. 143(3) of the Act, vide his order dt. 20th Dec, 2007 determining total income at ₹ 6,17,917 and agricultural income of ₹ 60,000 after making certain additions/disallowances. The AO made an addition of ₹ 1,80,000 under s. 69A of the Act. The assessee disclosed total cash gifts of ₹ 1,80,000 during the year as under : (1) Shri Madhav Singh, S/o Shri Janak Singh, Bhatapara on 5th April, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ial found during the search based on which addition was made, the AO has no jurisdiction to make addition in the assessment framed under s. 153A of the Act. 10. In support of the above contention, Shri P.C. Jain Maloo, learned counsel for the assessee relied on the following decisions : (1) CIT v. Murli Agro Products Ltd. (IT Appeal No. 36 of 2009 dt. 29th Oct., 2010 (Bombay High Court, Nagpur Bench). (2) Jai Steel (India) v. Asstt CIT (2013) 259 CTR (Raj) 281 : (2013) 88 DTR (Raj) 1. (3) Gurinder Singh Bawa v. Dy. CIT (2014) 150 ITD 40 (Mumbai). (4) All Cargo Global Logistics Ltd. v. Dy. CIT: (2012) 147 TTJ (Mumbai) 513 : (2012) 74 DTR (Mumbai) 89 (SB): (2012) 137 ITD 287 (Mumbai)(SB). (5) Deepak Agrawal v. Asstt. CIT (2014) (Mumbai)(Trib). (6) Atul Barot v. Dy. CIT (2014) (Mumbai)(Trib). (7) Natwar Parikh Co. (P) Ltd. v. Dy. CIT (2014) (Mumbai)(Trib). (8) Meghmani Organic Ltd. v. Dy. CIT (2010) 129 TTJ (Ahd) 255 : (2010) 36 DTR (Ahd) 187 (9) Suncity Alloys (P) Ltd. v. Asstt. CIT (2009) 124 TTJ (Jd) 674 : (2009) 27 DTR (Jd) 139 11. Shri S.K. Meena, learned Departmental Representative stoutly defended the orders of the lower authorities. He furt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... held that the assessment finalized on 29th Dec, 2000 has attained finality, then the deduction allowed under s. 80HHC of the IT Act as well as the loss computed under the assessment dt. 29th Dec, 2000 would attain finality. In such a case, the AO while passing the independent assessment order under s. 153A r/w s. 143(3) of the IT Act could not have disturbed the assessment/reassessment order which has attained finality, unless the materials gathered in the course of the proceedings under sexton 153A of the IT Act establish that the reliefs granted under the finalized assessment/reassessment were contrary to the facts unearthed during the course of s. 153A proceedings. (13) In the present case, there is nothing on record to suggest that any material was unearthed during the search or during the s. 153A proceedings which would show that the relief under s. 80HHC was erroneous. In such a case, the AO while passing the assessment order under s. 153A r/w s. 143(3) could not have disturbed the assessment order finalized on 29th Dec, 2000 relating to s. 80HHC deduction and consequently the CIT could not have invoked jurisdiction under s. 263 of the Act. 14. From the above, it can ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rch, 2002 under s. 139 of the Act. The return of income was processed under s. 143(1) of the Act. No notice under s. 143(2) of the Act was issued and the limitation for completion of the assessment expired on 31st March, 2004. Thereafter, search was conducted on 10th Nov., 2005. 21. In these cases also, the AO had not referred to any incriminating material found during the search based on which addition was made. Therefore, the AO had no jurisdiction to make addition in the assessment framed under s. 153A of the Act. The decision given in the case of Rawal Das Jaswani in ITA No. 87/Blpr/2009 (supra) shall apply to these appeals also with equal force. Accordingly, we allow these appeals. ITA No. 91/Blpr/2009 22. This appeal filed by the assessee is directed against the order of learned CIT(A) Raipur dt. 14th May, 2009 relating to asst. yr. 2004-05. 23. The only ground raised by the assessee in this appeal reads as under : On the facts and in the circumstances of the case, the learned CIT(A) has erred in sustaining the addition made by the AO at ₹ 1,00,000 under s. 68 of IT Act, 1961 being the amount of gift received treated as unexplained. The addition is unj ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the facts of the case are that the assessee is a partnership firm engaged in the business of manufacturing of various items from MC Wax. Search and seizure operation under s. 132 of the Act was carried out at the business and residential premises of Jaswani group on 10th Nov., 2005 including the residential premises of partners of the firm. The AO has noted that the assessee has claimed ₹ 2,50,000 as deduction on account of forfeiture of EMD. In this regard, no supporting evidence was furnished by the assessee. The AO observed that under the provisions of s. 37 of the Act, the onus was on the assessee to bring all material facts on record to substantiate his claim. The assessee failed to discharge the onus and, therefore, the AO disallowed the amount of ₹ 2,50,000 claimed on account of forfeiture of EMD by BPCL and added the same to the total income of the assessee. 30. On appeal, the learned CIT(A) confirmed the addition observing as under : I have gone through the order of the AO and the written submission of the appellant and remand report. The AO has disallowed the claim of forfeiture of EMD for the reason that no supporting evidences were produced to justif ..... X X X X Extracts X X X X X X X X Extracts X X X X
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