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TMI Blog2024 (2) TMI 1166X X X X Extracts X X X X X X X X Extracts X X X X ..... "1. That having regard to the fact and circumstances of the case, Ld. CIT(A) has erred in law and on facts in confirming the action of Ld. AO in assuming jurisdiction and issuing of notice u/s 153A of the Act. 2. That in any case and in any view of the matter, the assessment framed under section 153(1)(a) of the Act, is bad in law and against the facts and circumstances of the case. 3. That having regard to the facts and circumstances of the case, Ld. CIT(A) has erred in law and on facts in confirming the action of the Ld. A.O. in making addition of Rs. 17,20,000/- on account of cash deposited in the bank account as alleged income from undisclosed sources and that too in the proceedings u/s 153A of the Act. 4. That in any case and in any view of the matter, action of Ld. CIT(A) in confirming the action of Ld. AO in making addition of Rs. 17,20,000/- is bad in law and against the facts and circumstances of the case. 5. That having regard to the facts and circumstances of the case, Ld. CIT(A) has erred in law and on facts in confirming the action of the Ld. A.O. in making addition of Rs. 1,340/- on account of saving bank interest and that too in the proceedings u/s 153A of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assessee contested the aforesaid additions before learned First Appellate Authority, however, he was unsuccessful. 7. We have considered rival submissions and perused materials available on record. In so far as, additions of Rs. 17,20,000/- and Rs. 1,340/- representing cash deposits in bank account and savings bank account interest, respectively, the submission of the assessee, in nutshell, is they have not been made with reference to any incriminating material found as a result of search. Hence, these additions are unsustainable. A reading of assessment order clearly indicates that the Assessing Officer has not referred to any incriminating material qua the aforesaid two additions. The Assessing Officer has simply made these additions based on the bank account statement furnished by the assessee. 8. Considering the fact that assessment for the impugned assessment year did not abate on the date of search and seizure operation, the Assessing Officer could not have made any addition in absence of any incriminating material. This is so because of the ratio laid down by the Hon'ble Supreme Court in case of PCIT vs Abhisar Buildwel (P.) Ltd. [2023] 150 taxmann.com 257 (SC). 9. Befor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... icer made following three additions. i. Unexplained cash deposits of Rs. 17,20,000/- ii. Interest from bank account of Rs. 1,340/- iii. Undisclosed income from shares of Rs. 22,98,414/- 15. The additions so made were confirmed by learned First Appellate Authority. Based on these additions, the Assessing Officer initiated proceeding for imposition of penalty under section 271(1)(c) of the Act and ultimately passed an order imposing penalty of Rs. 12,41,689/-. The penalty so imposed was confirmed by learned First Appellate Authority. 16. We have heard both the parties and perused the material available on record. While dealing with the quantum appeal of assessee (supra), we have deleted the additions of Rs. 17,20,000/- and Rs. 1,340/-. Whereas, the issue relating to the addition of Rs. 22,98,414/- has been restored back to the Assessing Officer for deciding afresh. Thus, at present, there is no surviving additions against the assessee. That being the factual position on record, the penalty imposed u/s 271(1)(c) of the Act cannot survive. Accordingly, we delete the penalty imposed u/s 271(1)(c) of the Act. ITA No.2813/Del/2018 (Quantum Appeal) Assessment Year 2011-12 17. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f Rs. 7,50,000/- on 26.06.2010 and 26.08.2010 and deposited cash aggregating Rs. 4,45,000/- on 31.08.2010 and 21.10.2010. Further, cash aggregating to Rs. 10,50,000/- was withdrawn on 06.12.2010 and 18.01.2011. Whereas, cash deposits of Rs. 6,50,000/- was made on 02.02.2011. As can be seen from the aforesaid facts, the proximity between cash withdrawal and deposit is quite close. Further, the Departmental Authorities have not brought any material on record to establish that the cash withdrawals were utilized for any other purpose and not available with the assessee for re-deposit. Thus, applying the ratio laid down in the judicial precedents cited before us, we hold that the source of cash deposit has been explained by the assessee. Accordingly, we delete the addition of Rs. 13,50,000/- 23. In the result, the appeal is allowed. ITA No.2996/Del/2022 (Penalty Appeal) Assessment Year 2011-12 24. We have hard the parties and perused the material available on record. While deciding the quantum appeal of the assessee, being ITA No.2813/Del/2018 (supra), we have deleted the addition based on which penalty under section 271(1)(c) of the act was imposed. That being the case, the penalty ..... X X X X Extracts X X X X X X X X Extracts X X X X
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