TMI Blog2022 (9) TMI 1486X X X X Extracts X X X X X X X X Extracts X X X X ..... Thus as very initiation of assessment made under section 143(3) read with section 153C of the Act has not withstood the judicial scrutiny on account of jurisdictional defect there is no need to go into the merits qua the addition/deletion made by AO/ Ld. CIT(A). Decided in favour of assessee. - ITA Nos. 1311, 1312 & 1468/M/2021 And ITA Nos. 2437& 2436/M/2021, ITA Nos. 1357 & 1570/M/2021 - - - Dated:- 20-9-2022 - Shri Kuldip Singh, Judicial Member And Shri S. Rifaur Rahman, Accountant Member For the Assessee : Shri Ravikant Pathak, A.R. For the Revenue : Shri Rajesh Damor, D.R. ORDER PER : KULDIP SINGH, JUDICIAL MEMBER: For the sake of brevity aforesaid interconnected appeals bearing common question of law and facts are being taken up for disposal by way of composite order. 2. Appellant Shri Amish Anantrai Modi (hereinafter referred to as the assessee) and appellant DCIT/ACIT, Central Circle-2(1), Mumbai (hereinafter referred to as the Revenue) by filing aforesaid cross appeals sought to set aside the impugned orders dated 09.11.2021, 15.06.2021, 31.05.2021 30.07.2021 for A.Y. 2011- 12, 2012-13, 2013-14 2014-15 respectively passed by Commissi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rty and the agent. 9. In the facts and circumstances of the case and in law, the learned GT(A) erred in confirming further commission of 59413 ignoring the fact that he has already computed commission of Rs. 1,43,625 (as per (9) above). ITA No. 1312/M/2021 for A.Y.2013-14 1. In the facts and circumstances of the case and in law, the learned CIT(A) erred in confirming the assessment passed u/s 153C of the income tax Act, 1961 which was passed in the absence of any incriminating material and without appreciating the fact that original assessment made u/s 143(3)/143(l)(a) which was completed on the date of initiation of search do not get abated. In the facts and circumstances of the case and in law, the learned CIT(A) erred in confirming the assessment u/s 153C which was passed without having jurisdiction to the assessing officer as no opportunity of being heard u/s 127 of the act was granted to the appellant. 2. In the facts and circumstances of the case and in law, the learned CIT(A) erred in confirming the assessment u/s 153C which was passed without furnishing the copy of the satisfaction recorded. 3. 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 ..... fact that bank deposits also include deposits for which income has been offered to tax and for which complete details were submitted. 4. In the facts and circumstances of the case and in law, the learned CIT(A) erred in confirming further commission @1.5% ignoring the fact that he has already computed commission of Rs. 1,29,726 (as per (3) above). 3. Briefly stated facts necessary for adjudication of the controversy at hand in all the aforesaid appeals bearing ITA No.1311, 1312, 1357, 1448 1570 are: a search and seizure operation was carried out in the group case of M/s. Navjivan Charitable Trust on 27.10.2014 from which it was noticed that the assessee trust accepts donation in cheque from the doner and returns back the money in cash after deducting commission at 3% of the donation amount to the doner which fact was admitted by one of the trustee namely Subash Kadam during recording of his statement under section 131 on 10.11.2014 by DDIT (Inv.), unit 2(4), Mumbai. The assessee namely Amish A. Modi is one of such persons who has provided accommodation entry to M/s. Navjivan Charitable Trust through various parties. After recording satisfaction note, a notice dated 20 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... -14 2014-15. 8. We have heard the Ld. Authorised Representatives of the parties to the appeal, perused the orders passed by the Ld. Lower Revenue Authorities and documents available on record in the light of the facts and circumstances of the case and law applicable thereto. Grounds No.2, 3, 4 5 9. During the course of argument Ld. A.R. for the assessee has not pressed ground No.2 to 5, hence the same are dismissed having not been pressed. Ground No.1 10. Ld. A.R. for the assessee challenging the impugned order passed by the Ld. CIT(A) contended inter alia that during the search and seizure operation carried out at the premises of M/s. Navjivan Charitable Trust on 27.10.2014 no incriminating document qua assessee has been found/seized; that documents seized during the search and seizure operation available at page 2 to 10 of the paper book namely ledger account of M/s. Navjivan Charitable Trust, cash book etc. are pertaining to A.Y. 2009-10 rather addition has been made in the cases at hand i.e. of subsequent years; that the entire case has been based by the AO on the basis of solitary statement of assessee recorded during search proceedings which can ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssessment was made under section 143(3) of the Act which was completed on the date of initiation of search and as such do not get abated. It is also not in dispute that common satisfaction note has been recorded in all the years viz. 2009-10 to 2014-15 on the basis of books of accounts maintained by M/s. Navjivan Charitable Trust. 13. To move into motion section 153C of the Act something belonging to the assessee must be found in the premises of searched person and at the same time incriminating material should be qua the each assessment year. 14. Hon ble Supreme Court while deciding the scope of section 153C in case of Sinhgad Technical Education Society (supra) held that incriminating material which was seized had to be pertained to the assessment year in question and this is the basic requirement under section 153C of the Act which is essential for the assessment under that provision which becomes a jurisdictional issue. In the instant case also no incriminating material is there qua the years under consideration. Even in the bank statement available at page 5 of the paper book name of the assessee is not there and as such very initiation of the assessment proceedings ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The assessee vide his letter dated 23/11/2016 confirmed to consider commission income in his computation of income. The commission income offered was not disclosed in the return of income therefore the same is taxed as undisclosed income of the assessee. Penalty proceedings u/s. 271(1)(c) Of the Act are initiated separately for furnishing inaccurate particulars of income. 7. From the above it is apparent that no incriminating material was found with regard to addition made. Furthermore, from where addition of Rs. 12,36,000/- for A.Y. 2011-12 has been done is not clear from the assessment order. Moreover, there is no mentioned of any incriminating material found with regard to addition made. Assessment year involved is A.Y. 2011-12, search was conducted on 27.10.2014 hence this is also not a case of abated assessment. In these circumstances, in my considered opinion decision of Hon'ble Jurisdictional High Court in the case of Continental Warehousing Corporation (supra) is squarely applicable. Since addition has not been based upon any incriminating material found during search no addition dehorse any incriminating material is sustainable. Hence the orders of authorities be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rification by way of remand reports from the AO to delve into the actual facts and circumstances of the case. ITA No.1570/M/2021 for A.Y. 2014-15 1. Whether on the facts and circumstances of the case and in law, the Ld Pr.CIT{A)-48, Mumbai had erred in restricting the addition of Rs.24,00,000/- to Rs.7,00,000/- as unexplained cash credit overlooking the mismatch in date of loan in the Balance Sheet and the Loan confirmation filed by the assessee. 2. Whether on the facts and circumstances of the case and in law, the Ld Pr.CIT(A)-48, Mumbai had erred in restricting the addition of Rs. 2,06,21, 600/- to Rs.6,47,829/- only, giving credit to all the claims of the assessee and denials of the assessee against the accusations without calling for any verification by way of remand reports from the A.O to delve into the actual facts and circumstances of the case. 17. Primarily Ld. D.R. for the Revenue relied upon the order passed by the AO so far as ground No.1 2 of A.Y. 2013-14 is concerned. Ld. D.R. also contended that Ld. CIT(A) has erred in restricting the addition @ 1.5% whereas the assessee himself has admitted to pay @ 3% and that Ld. CIT(A) has also dec ..... X X X X Extracts X X X X X X X X Extracts X X X X
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