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TMI Blog2021 (12) TMI 645X X X X Extracts X X X X X X X X Extracts X X X X ..... e asstt proceedings, which is same as the address provided during the appellate proceedings also, which led to passing exparte order u/s 144 by the AO. 2. That the Ld. CIT(A) failed to bring any material on record to suggest that there was change in directors in the middle of the asstt proceedings or, that all notices were issued only during the period when previous directors were in the assessee company or, that the contention that no notices were received by present directors was a genuine and bonafide one. 3. That the Ld. CIT(A)failed to allude to the relevant facts and failed to record any 'satisfaction'as required u/s 249(3) on the sufficiency of reasons for condonation of delay because CIT(A) being an authority under the I T Act only, does not have unfettered powers to condone without assigning any reasons. 4. On facts and circumstances of the case and in law, the Ld. CIT(A) erred in admitting additional on his own, even before calling the remand/enquiry report u/s 250(4) from the AO on addl. evidence furnished, without passing any separate order u/r 46A(2) to show that the conditions for filing addl. evidence u/r 46A(1) are satisfied, thereby violating the principles o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng that even if some entries are recorded in books of accounts yet they may still represent undisclosed income having bearing on the assessment of income if they are partly recorded (at 1 /5th value of stamp value as in this case), or camaflouge or shown to be from a source which is not the real source and thus recording of entry in books alone may not take such entry out from being incriminating, if there are prima facie reasons to doubt its correctness. 10. Without prejudice to above grounds, on facts and circumstances of the case and in law the Ld. CIT(A), erred in applying the ratio of decision in case of Sinhgad Technical Education society without appreciating that the said decision was rendered with reference to provisions of 153C as they stood prior to 1.4.2005 where the nature of documents which could trigger issue of notice u/s 153C was not at all specified, whereas after amendment w.e.f. 01.04.2005, specific condition has now been prescribed for issue of notice u/s 153C stating that the material belonging/relating to assessee should have a 'bearing on the assessment of income' of other person. Hence the test of presence of incriminating material is not at all a pre-requ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o dispute that the assessee filed the appeal before the CIT(A) on 28.02.2019 against the assessment order dated 26.10.2016. Therefore, there was delay of more than two years in filing the appeal before the CIT(A). The CIT(A) has condoned the delay in para 5 of the impugned order as under : "5. It is seen from the record that the appeal under consideration has been filed on 28.02.2019. This appeal has been filed late by more than 2 years and appellant has submitted application for condonation of delay. The reasons submitted by the Ld. A.R. were discussed and undersigned finds that the appellant has sufficient cause for not presenting its appeal within stipulated time. Thus, delay is condoned and appeal is allowed for admission." 5. As it is apparent from the above order of the CIT(A) that neither the reasons for delay has been discussed nor the facts leading to the cause of delay has been analysed by the CIT(A). Therefore, the impugned order of the CIT(A) qua condonation of delay for more than two years is non-speaking order. Accordingly, in the facts and circumstances of the case and in the interest of justice, without expressing any view on the merits of this issue, we set asid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urate particulars of income and has concealed particulars of income, hence the assessee is liable for penalty u/s 271(l)(c) of IT Act 1961. 5. Vide referred show cause dated 12.08.2016 and 14.10.2016 the assessee was asked to prove the genuineness of advance of Rs. 50,00,000/- which was given to M/s KaniyaRealinvestPvt. Ltd. The Assessee has failed to do so. Therefore, an amount of Rs. 50,00,000/- is added to the total income of the assessee. (Addition of Rs. 50,00,000/-) The assessee has furnished inaccurate particulars of income and has concealed particulars of income, hence the assessee is liable for penalty u/s 271(1)(c) of IT Act 1961. 6. Vide referred show cause dated 12.08.2016 and 14.10.2016 the assessee was asked to prove the advance of Rs. 40,95,000/-given to SabhyaInfrabuilPvt. Ltd and Rs. 50 lac given to Sabhya Real investment and Rs. 501ac given to Megh Real investment. However the Assessee has failed to do so. Hence addition of Rs. 1,40,95,000/-is added to the total income of the assessee. (Addition ofRs. 1,40,95,000/-) The assessee has furnished inaccurate particulars of income and has concealed particulars of income, hence the assessee is liable for penalt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was forwarded to the Assessing Officer for his comments. The Assessing Officer objected to the admission of additional evidence in his remand report which is reproduced in the impugned order by the ld. CIT(A). Therefore, it is clear that the comments called by the CIT(A) from the Assessing Officer were in respect of the admission of additional evidence and there was no direction to the Assessing Officer to verify the additional evidence.When the Assessing Officer has objected to the admission of additional evidences, the CIT(A) ought to have first take a decision on the admissibility and once the additional evidence is admitted by the CIT(A), then the same ought to have been referred to the Assessing Officer for verification and examination. Instead of following the procedure of getting the additional evidence examined and verified from the Assessing Officer, the CIT(A) proceeded to decide the issues of additions on merits on the basis of the additional evidences. The relevant finding of the ld. CIT(A) in para 7.1 to 7.3 is as under : "7.1. Ground no. 1 to 5 pertain to various additions made by the AO on the basis of seized documents. In this regard, Ld. AR of the appellant file ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s to be sustained. (D) Page No. 29 to 31 of LP-1, Page No. 1 to 20 A 1-33 & 1-39 found and seized from Vonobapuri office and Page No. 33 of LP-8 found from Rishkesh Office, containing transaction of unsecured loans of Rs. 65,00.000/- taken M/s. Esspal International Ltd, and of Rs. 73,00,000/- from Shri Harshit Malik. These papers contain several high value transaction by appellant company.The said loose papers are registries of property and also the details of loans covered in point 2 & 3 for which confirmation and explanation have been already filed. It is seen that all the entries have been recorded in the books of account and there is no incriminating material as such. (E) Further, with regard to Rs. 1,40,95,000/-, the loan received from 'M/s. ShreevasInfrabuild Pvt, Ltd. is reflected in Balance sheet and loans to M/s. MeghRealinvestPvt. Ltd., and M/s. SabhyaRealinvestPvt. Ltd. pertain to assessment year 2013-14 only. During the appeal proceedings the contention of the appellant were verified vis-a-vis financial statements like Balance sheet and Profit and Loss account and it was observed that contention of the Ld. AR is substantiated with cogent documentary evidences ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 6 TTJ334, e) CIT v. Maulikkumar K. Shah [2008] 307 ITR 137 7.3 In view of the above detailed discussions and considering the judicial pronouncements cited here-in-above, all the additions made by the AO are hereby deleted and grounds of appeal of the appellant are allowed." 12. Once the assessee sought to file the additional evidence then the proper procedure is to first admit the additional evidences and then seek remand report from the Assessing Officer on the correctness of the additional evidence. This exercise is necessary to verify the correctness of the additional evidence first time filed by the assesseeat appellate stageas well as granting the opportunity to the Assessing Officer to consider such evidences. The CIT(A) has proceeded on its own without giving the opportunity to the Assessing Officer to verify and examine the additional evidence and further to respond and make comments on merits of the issue. Hence, when the additional evidence was not subjected to examination and verification by the Assessing Officer and the order of the CIT(A) is also non-speaking order so far as deletion of additionsare concerned, therefore, in the facts and circumstances of the case ..... X X X X Extracts X X X X X X X X Extracts X X X X
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