Leelavati Vijaykumar Kotecha, Jalgaon V. Deputy Commissioner of Income-tax,

ITA 1295/PUN/2016

• Counselvise Citation: [2018] 121 COUNSELVISE.COM (IT) 7714 (ITAT-PUNE)
• Duration Of Justice: 1 year(s) 10 month(s) 12 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 26-04-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2008-2009
• Appeal Filed On: 13-06-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: NIRUPAMA KOTRU
• Keywords: Unexplained cash credit; Search and seizure; Opportunity of being heard; Initiation of penalty proceedings; Validity of assessment; Competent authority
• Section: 153A; 68; 144; 139

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH, PUN E . , , ! ' , # $ BEFORE SHRI D. KARUNAKARA RAO, AM AND SHRI VIKAS AW ASTHY, JM . / ITA NOS. 1294 TO 1297/PUN/2016 #& ' (' / ASSESSMENT YEARS : 2007-08, 2008-09, 2010-11, 20 12-13 LEELAVATI VIJAYKUMAR KOTECHA, 4, TEACHERS COLONY, RING ROAD, JALGAON-425 001 PAN : ALVPK4435H ....... / APPELLANT & / V/S. THE ASSISTANT COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE-2(1), NASHIK. / RESPONDENT ASSESSEE BY : NONE REVENUE BY : SMT. NIRUPAMA KOTRU. / DATE OF HEARING : 03.04.2018 / DATE OF PRONOUNCEMENT : 26.04.2018 ) / ORDER PER VIKAS AWASTHY, JM THIS BUNCH OF FOUR APPEALS BY THE ASSESSEE ARE DIRECTED AGAINST THE ORDER OF COMMISSIONER OF INCOME TAX (APPEALS)-12, PUNE DATED 21.03 .2016 COMMON FOR THE ASSESSMENT YEARS 2007-08, 2008-09, 2010-11, 2012-13. 2 ITA NOS. 1294 TO 1297/PUN/2016 A.YS. 2007-08, 2008-09, 2010-11, 2012-13 2. THE NOTICE OF APPEAL WAS SENT TO THE ASSESSEE ON 06.02.2018 FO R 28.03.2018 THROUGH RPAD. AS IS EVIDENT FROM ACKNOWLEDGEMENT CARD O N RECORD, THE NOTICE WAS DULY SERVED ON THE ASSESSEE. ON 28.03.2018, A REQUE ST LETTER WAS RECEIVED FROM ASSESSEE SEEKING ADJOURNMENT ON ACCOUNT OF PRE-O CCUPATION OF THE COUNSEL. ON THE REQUEST OF ASSESSEE, THE CASE WAS ADJOURNED T O 03.04.2018. THE NEXT DATE OF HEARING WAS PRONOUNCED IN OPEN COURT. ON 03.04.2018, NE ITHER THE ASSESSEE NOR ANY AUTHORIZED REPRESENTATIVE/COUNSEL OF ASSESSEE APPEARED IN THE COURT. NO LETTER SEEKING ADJOURNMENT HAS EITHER BEEN FILED. IT AP PEARS THAT ASSESSEE IS NOT KEEN TO PURSUE HER APPEALS. IN SUCH CIRCUMSTANCES, WE PROCEED TO DECIDE THESE APPEALS WITH THE ASSISTANCE OF LD. DR AND MATERIAL AVAILABLE ON RE CORD. SINCE, THE ISSUES INVOLVED IN ALL THE FOUR APPEALS ARE SIMILAR A ND ARE ARISING FROM SAME SET OF FACTS, THESE APPEALS ARE TAKEN UP TOGE THER FOR ADJUDICATION AND ARE DISPOSED OF VIDE THIS COMMON ORDER. 3. THE BRIEF FACTS OF THE CASE COMMON FOR ALL ASSESSMENT Y EARS UNDER APPEAL ARE : A SEARCH AND SEIZURE ACTION WAS CARRIED ON KOTE CHA GROUP OF JALGAON ON 09.08.2011. AS A PART OF SEARCH ACTION, THE RESIDENTIAL PRE MISE OF ASSESSEE WAS ALSO SEARCHED. NOTICE U/S.153A OF THE INCOME TAX ACT, 1 961 (HEREINAFTER REFERRED TO AS THE ACT) WAS ISSUED TO THE ASSESSEE ON 18.05 .2012 WHICH WAS DULY SERVED ON 25.05.2012. THE ASSESSEE DID NOT FILE ANY RETURN OF INCOM E IN RESPONSE TO THE SAID NOTICE. AFTER MORE THAN A YEAR, THE ASSESSEE VIDE LE TTER DATED 03.06.2013 SUBMITTED THAT THE RETURN OF INCOME FILED U/S.139 OF THE A CT BE TREATED AS RETURN IN RESPONSE TO THE NOTICE U/S.153A OF THE ACT. THE ASSE SSEE AT BELATED STAGE OF ASSESSMENT I.E. ON 15.01.2014 FILED OBJECTIONS BEFORE THE ASS ESSING OFFICER AGAINST CHANGE OF JURISDICTION FROM JALGAON TO NASHIK VIDE ORDER DATED 02.12.2011 PASSED U/S. 127 OF THE ACT. THE ASSESSING OFFICE R REJECTED THE OBJECTION RAISED BY ASSESSEE QUA CHANGE OF JURISDICTION A ND FINALIZED THE 3 ITA NOS. 1294 TO 1297/PUN/2016 A.YS. 2007-08, 2008-09, 2010-11, 2012-13 ASSESSMENT VIDE SEPARATE ORDERS OF EVEN DATE I.E. 11.03.2 014 FOR ALL ASSESSMENTS UNDER APPEAL. 4. AGGRIEVED BY THE ADDITIONS MADE, THE ASSESSEE CHALLENGE D THE ASSESSMENT ORDERS BEFORE THE COMMISSIONER OF INCOME TAX (APPEALS). APA RT FROM CHALLENGING THE ADDITIONS ON MERIT, THE ASSESSEE ALSO ASSAILED CHANGE OF JURISDICTION U/S. 127 OF THE ACT. THE COMMISSIONER OF INCOME TAX (APPEALS) VIDE C OMBINED ORDER FOR ASSESSMENT YEARS 2007-08, 2008-09, 2010-11, 2012-13 RE JECTED ASSESSEES CHALLENGE TO CHANGE OF JURISDICTION U/S. 127 OF THE ACT. HO WEVER, ON MERITS, THE COMMISSIONER OF INCOME TAX (APPEALS) GRANTED SUBSTANTIAL RE LIEF TO THE ASSESSEE AND CONFIRMED MINOR ADDITIONS IN THE ASSESSMENT YEARS 200 7-08, 2008-09, 2010- 11, 2012-13. AGAINST THE ADDITIONS CONFIRMED, THE ASSESSEE IS IN APPEAL B EFORE THE TRIBUNAL. 4.1 SIMILAR GROUNDS HAVE BEEN RAISED BY THE ASSESSEE IN APPEALS FOR ASSESSMENT YEARS 2007-08, 2008-09, 2010-11 AND 2012-1 3 CHALLENGING THE VALIDITY OF ASSESSMENT U/S.153A R.W.S 144 OF THE ACT AND C ONFIRMING OF ADDITIONS BY COMMISSIONER OF INCOME TAX (APPEALS) IN THE ABSENCE OF ANY INCRIMINATING MATERIAL. THUS, THE COMMON LEGAL GROUND RAISED IN ALL THE FOU R OF APPEALS IS VALIDITY OF ASSESSMENT PROCEEDINGS U/S. 153A R.W.S. 144 IN THE ABSENCE OF ANY INCRIMINATING MATERIAL. THE ADDITIONS CONFIRMED BY THE COMMIS SIONER OF INCOME TAX (APPEALS) AGAINST WHICH THE ASSESSEE IS IN APPEAL BEFORE THE TRIBUNAL IN IMPUGNED ASSESSMENT YEARS ARE AS UNDER. ASSESSMENT YEAR 2007-08 SR. NO. NATURE OF ADDITIONS AMOUNT ( IN RS.) EXPLANATION BY ASSESSEE. 1. UNEXPLAINED CASH CREDIT U/S.68. 1,10,000/- MACHINES HIRE CHARGES. 2. UNEXPLAINED CASH CREDIT 90,000/- TRANSFER OF FUNDS FROM SHRI ANIL KOTECHA (SON) 4 ITA NOS. 1294 TO 1297/PUN/2016 A.YS. 2007-08, 2008-09, 2010-11, 2012-13 3. CASH DEPOSITS 1,14,072/- MATURITY OF POSTAL DEPOSITS. ASSESSMENT YEAR 2008-09 4. UNEXPLAINED CASH CREDIT 44,200/- CASH DEPOSIT FROM REGULAR BUSINESS ACTIVITY. 5. UNEXPLAINED CASH CREDIT 1,00,000/- AMOUNT RECEIVED FROM SUNIL R. PAWER ASSESSMENT YEAR 2010-11 6. UNEXPLAINED CASH CREDIT 47,12,511/- ADVANCE RECEIVED FROM MR. DEEPESH MOTILAL KOTECHA FOR SELLING SHARES OF TAPI PRE-STRESS LTD. ASSESSMENT YEAR 2012-13 7. UNEXPLAINED CASH SEIZED FROM LOCKER NO. 98 AT UNITED WESTERN BANK LTD. NAVI PETH, JALGAON DURING SEARCH. 1,65,900/- PERSONAL CASH FROM ACCUMULATED SAVINGS (OUT OF TAX PAID INCOME) 5. SMT. NIRUPAMA KOTRU REPRESENTING THE DEPARTMENT VEHE MENTLY RELIED ON THE IMPUGNED ASSESSMENT ORDERS CONFIRMING THE ADDITIONS. T HE LD. DR PRAYED FOR DISMISSING APPEALS OF THE ASSESSEE. 6. WE HAVE HEARD THE SUBMISSIONS MADE BY THE LD. DR AND HAVE PERUSED THE ORDERS OF AUTHORITIES BELOW. FOR THE SAKE OF CONVENIENCE, WE WILL DECIDE THE APPEALS OF ASSESSEE IN SERIATIM OF ASSESSMENT YEARS. ITA NO.1294/PUN/2016 A.Y. 2007-08 7. THE GROUNDS RAISED BY ASSESSEE IN APPEAL FOR ASSESSME NT YEAR 2007-08 ASSAILING THE ORDER OF COMMISSIONER OF INCOME TAX (APPEALS) ARE AS UND ER: 1) IN FACTS AND CIRCUMSTANCE OF THE CASE AND IN LAW , THE LEARNED ASSESSING OFFICER ERRED IN MAKING ROUTINE ADDITIONS 1 DISALLOWANCES IN ASSESSMENT U/S 5 ITA NOS. 1294 TO 1297/PUN/2016 A.YS. 2007-08, 2008-09, 2010-11, 2012-13 153A R.W.S. 144 IN THE ABSENCE OF ANY INCRIMINATING MATERIAL AND WITHOUT APPRECIATING THE FACT THAT ORIGINAL ASSESSMENT MADE U/S.143(1)(A) WHICH IS COMPLETED ON THE DATE OF INITIATION OF SEARCH GET A BATED. 2) IN FACTS AND CIRCUMSTANCE OF THE CASE AND IN LAW , THE LEARNED ASSESSING OFFICER ERRED IN PASSING ORDER U/S. 153A R.W.S 144 EVEN THOUGH NO ORDER U/S 127 WAS PASSED. 3) IN THE FACTS AND CIRCUMSTANCES OF THE CASE AND I N LAW THE ASSESSING OFFICER ERRED IN ADDING RS. 1,10,000/- EVEN THOUGH THE SAME WAS EXPLAINED TO BE GENERATED OUT MACHINE HIRE OUT CHARGES RECEIVED AND EVEN THOUGH THE APPELLANT IS NOT REQUIRED TO MAINTAIN BOOKS OF ACCO UNTS AND THEREFORE ENTRIES IN PASSBOOK CANNOT BE ADDED U/S 68. 4) IN THE FACTS AND CIRCUMSTANCES OF THE CASE AND I N LAW THE ASSESSING OFFICER ERRED IN ADDING RS. 90,000/- EVEN THOUGH THE SAME WAS EXPLAINED TO BE TRANSFER OF FUNDS FROM THE SON OF THE APPELLANT SHR I ANIL KOTECHA AND EVEN THOUGH THE SAME WAS BACKED BY BANK STATEMENTS OF TH E SON. 5) IN THE FACTS AND CIRCUMSTANCES OF THE CASE AND I N LAW THE ASSESSING OFFICER ERRED IN ADDING RS. 1,14,072/- EVEN THOUGH THE SAME WAS EXPLAINED TO BE RECEIVED FROM MATURITY OF POSTAL RECURRING DEPOSIT AND EVEN THOUGH THE APPELLANT IS NOT REQUIRED TO MAINTAIN BOOKS OF ACCO UNTS AND THEREFORE CANNOT BE ADDED AS CASH CREDIT U/S. 68. 6) IN THE FACTS AND CIRCUMSTANCES OF THE CASE AND I N LAW, THE COMMISSIONER OF INCOME TAX(A) ERRED IN CONFIRMING ABOVE ADDITION BY OVERLOOKING EXPLANATIONS SUBMITTED TO HIM AND. 7) THE ASSESSING OFFICER WRONGLY CHARGED INTEREST U /S 234A, B, C AND D AND INITIATED PENALTY U/S.271(1)(B). 8. IN GROUND NO.1 OF THE APPEAL, THE ASSESSEE HAS ASSAI LED VALIDITY OF ASSESSMENT U/S.153A R.W.S. 144 OF THE ACT ON THE GROUND THAT IN THE ABSENCE OF INCRIMINATING MATERIAL, NO ADDITION CAN BE MADE WHEN THERE IS NO PENDING ASSESSMENT. A PERUSAL OF DOCUMENTS ON RECORD REVEALS TH AT THE ASSESSEE HAD FILED RETURN OF INCOME FOR THE ASSESSMENT YEAR 2007-08 U/S. 139 OF THE ACT ON 03.12.2007. ASSESSMENT WAS MADE IN THE CASE OF ASSESSEE U/S. 143(1)(A) OF THE ACT. NO NOTICE U/S. 143(2) OF THE ACT WAS ISSUED TO THE ASSESSEE. THEREFORE, ON THE DATE OF SEARCH I.E. 09.08.2011, THERE WAS NO PENDING ASSESSMENT . A PERUSAL OF ASSESSMENT ORDER AND ORDER OF COMMISSIONER OF INCOME TA X (APPEALS) SHOW THAT THE ADDITIONS WHICH ARE SUBJECT MATTER OF APPEAL BEFORE T RIBUNAL ARE NOT ARISING OUT OF ANY INCRIMINATING MATERIAL FOUND AND SEIZED DURING SEARCH. 6 ITA NOS. 1294 TO 1297/PUN/2016 A.YS. 2007-08, 2008-09, 2010-11, 2012-13 9. IT IS A WELL SETTLED LAW THAT WHERE NO INCRIMINATING MATE RIAL WAS FOUND DURING SEARCH AND NO ASSESSMENTS ARE PENDING AT THE T IME OF INITIATION OF PROCEEDINGS U/S. 153A, ASSESSMENTS MADE U/S. 153A IS WITHOUT JUR ISDICTION. THE HON'BLE BOMBAY HIGH COURT IN THE CASE OF CIT VS. CONTINE NTAL WAREHOUSING CORPORATION (NAVA SHEVA) LTD. 374 ITR 645 (BOM) HAS HELD THAT IF THERE WAS NO INCRIMINATING MATERIAL FOUND DURING SEARCH, NO ADDITION CAN BE MADE WHERE THERE WAS NO PENDING ASSESSMENTS. SIMILAR VIEW HAS BEEN TAKEN B Y THE HON'BLE JURISDICTIONAL HIGH COURT IN THE CASE OF CIT VS. GURINDER SIN GH BAWA 386 ITR 483 (BOM). IN THE INSTANT CASE, WE FIND THAT SINCE THE ASSESSMENT FOR ASSESSMENT YEAR 2007-08 HAD ATTAINED FINALITY AND NO INCRIMINATING MATERIAL W AS FOUND DURING SEARCH, ASSESSMENT U/S.153A R.W.S. 144 IS WITHOUT JURISDICT ION. ACCORDINGLY, THE IMPUGNED ORDER IS SET ASIDE AND GROUND NO. 1 RAISED IN APPEAL BY ASSESSEE IS ALLOWED. 10. SINCE WE HAVE ACCEPT THE APPEAL OF ASSESSEE ON T HE GROUND OF JURISDICTION, THE OTHER GROUNDS RAISED IN APPEAL HAVE BECOME INFRACTUOUS AND ARE DISMISSED AS SUCH. 11. IN THE RESULT, APPEAL OF THE ASSESSEE FOR ASSESSMENT YEAR 2007-08 IS ALLOWED ON THE LEGAL ISSUE ALONE. ITA NO.1295/PUN/2016 A.Y. 2008-09 12. THE ASSESSEE HAS RAISED FOLLOWING GROUNDS OF APPEAL IN ASSESSMENT YEAR 2008-09: 1) IN FACTS AND CIRCUMSTANCE OF THE CASE AND IN LAW , THE LEARNED ASSESSING OFFICER ERRED IN MAKING ROUTINE ADDITIONS 1 DISALLOWANCES IN ASSESSMENT U/S 153A R.W.S. 144 IN THE ABSENCE OF ANY INCRIMINATING MATERIAL AND WITHOUT 7 ITA NOS. 1294 TO 1297/PUN/2016 A.YS. 2007-08, 2008-09, 2010-11, 2012-13 APPRECIATING THE FACT THAT ORIGINAL ASSESSMENT MADE U/S.143(1)(A) WHICH IS COMPLETED ON THE DATE OF INITIATION OF SEARCH GET A BATED. 2) IN FACTS AND CIRCUMSTANCE OF THE CASE AND IN LAW , THE LEARNED ASSESSING OFFICER ERRED IN PASSING ORDER U/S. 153A R.W.S 144 EVEN THOUGH NO ORDER U/S 127 WAS PASSED. 3) IN THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW THE ASSESSING OFFICER ERRED IN ADDING RS. 44,220/- AND RS.1,00,000/- U/S.68 BY WAY OF UNDISCLOSED CASH CREDIT IN THE BANK ACCOUNT EVEN THOUGH THE APP ELLANT IS NOT LIABLE TO MAINTAIN BOOKS OF ACCOUNTS AND THEREFORE, SECTION 6 8 DOES NOT APPLY AND EVEN THOUGH THE SOURCE OF RS. 44 , 220/- WAS ATTRIBUTABLE TO CASH WITHDRAWN FROM JALGAON JANTA SAHAKARI BANK LTD . FROM TIME TO TIME AND THEREAFTER THE SAID CASH WAS DEPOSITED IN THE SAME BANK ACCOUNT AN D RS.1,00,000/ - WAS RECEIVED BY CHEQUE FROM SUNIL R PAWAR AND REJECTED BY THE ASSESSING OFFICER EVEN DU R I N G THE REMAND PROCEEDINGS. 4) IN THE FACTS AND CIRCUMSTANCES OF THE CASE AND I N LAW, THE COMMISSIONER OF INCOME TAX(A) ERRED IN CONFIRMING ABOVE ADDITION BY OVERLOOKING EXPLANATIONS SUBMITTED TO HIM AND. 5) THE ASSESSING OFFICER WRONGLY CHARGED INTEREST U /S 234A, B, C AND D AND INITIATED PENALTY U/S.271(1)(B). 13. IN GROUND NO. 1 OF APPEAL, THE ASSESSEE HAS CHALLENGE D ASSESSMENT MADE U/S. 153A R.W.S 144 ON THE SIMILAR LINES AS IS IN ASSESSMENT YEAR 2007-08. THE ASSESSEE HAS FILED RETURN OF INCOME U/S. 139 ON 26.11.2008. THE ASSESSMENT WAS COMPLETED U/S.143(1)(A). THUS, ON THE DATE OF SEARCH NO ASS ESSMENT WAS PENDING. NOTHING HAS BEEN BROUGHT ON RECORD TO SHOW THAT THE ASSESSMENT WAS PENDING OR ADDITION WAS MADE ON THE BASIS OF INCRIMINATING MATERIAL FOU ND DURING SEARCH. SINCE THE FACTS IN ASSESSMENT YEAR 2007-08 & ASSESSMEN T YEAR 2008-09 ARE SIMILAR, THE FINDINGS GIVEN BY US IN ASSESSMENT YEAR 2007-08 MUTATIS-MUTANDIS WOULD APPLY IN ASSESSMENT YEAR 2008-09 AS WELL. FOR THE REASONS GIVEN WHILE DECIDING THE APPEAL OF ASSESSEE IN ASSESSMENT YEAR 2007 -08, THE GROUND NO.1 RAISED IN APPEAL FOR ASSESSMENT YEAR 2008-09 IS ALLOWED. 14. SINCE WE ACCEPT THE APPEAL OF ASSESSEE ON LEGAL GROUN D, THE OTHER GROUNDS RAISED IN APPEAL HAVE BECOME INFRACTUOUS AND ARE DISMISSED AS SUCH . 15. IN THE RESULT, APPEAL OF THE ASSESSEE FOR ASSESSMENT YEAR 2008-09 IS ALLOWED. 8 ITA NOS. 1294 TO 1297/PUN/2016 A.YS. 2007-08, 2008-09, 2010-11, 2012-13 ITA NO.1296/PUN/2016 A.Y. 2010-11 16. THE ASSESSEE HAS RAISED FOLLOWING GROUNDS OF APPEAL IN A SSESSMENT YEAR 2010-11: 1. IN THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE LEARNED ASSESSING OFFICER ERRED IN PASSING THE ASSESSMENT O RDER WITHOUT HAVING JURISDICTION BECAUSE, NO OPPORTUNITY OF BEING HEARD WAS GRANTED TO THE APPELLANT U/S. 127 AND ALSO DISREGARDING THE OBJECTIONS RAISED U/S . 292BB IN THIS REGARD. 2. IN FACTS AND CIRCUMSTANCE OF THE CASE AND IN LAW , THE LEARNED ASSESSING OFFICER ERRED IN PASSING ORDER U/S. 153A R.W.S.144 EVEN THOUGH NO ORDER U/S 127 WAS PASSED. WITHOUT PREJUDICE TO THE ABOVE AND ALTERNATIVELY UN DER PROTEST : 3. ON FACTS AND CIRCUMSTANCE OF THE CASE AND IN LAW , THE LEARNED ASSESSING OFFICER ERRED IN MAKING ROUTINE ADDITIONS / DISALLO WANCES IN ASSESSMENT U/S 153A R.W.S. 144 IN THE ABSENCE OF ANY INCRIMINATING MATERIAL AND WITHOUT APPRECIATING THE FACT THAT ORIGINAL ASSESSMENT MADE U/S 143(1)(A) WHICH IS COMPLETED ON THE DATE OF INITIATION OF SEARCH GET A BATED. 4. IN THE FACTS AND CIRCUMSTANCES OF THE CASE AND I N LAW THE ASSESSING OFFICER ERRED IN ADDING RS.47,12,511/- BEING ADVANCE RECEIV ED FROM DIPESH FROM SALE OF SHARES OF TAPI PRE-STRESSED PRODUCTS LTD. U /S.68 BY WAY OF UNDISCLOSED CASH CREDIT IN THE BANK ACCOUNT EVEN TH OUGH THE APPELLANT IS NOT LIABLE TO MAINTAIN BOOKS OF ACCOUNTS AND THEREFORE, SECTION 68 DOES NOT APPLY AND EVEN THOUGH THE SOURCE OF RS.47,12,511/- WAS AT TRIBUTABLE TO ADVANCE RECEIVED FROM DIPESH AS ABOVE SAID AND THE SAID EXP LANATION WAS REJECTED BY THE ASSESSING OFFICER EVEN DURING THE REMAND PROCEE DINGS. 5. IN THE FACTS AND CIRCUMSTANCES OF THE CASE AND I N LAW, THE COMMISSIONER OF INCOME TAX(A) ERRED IN CONFIRMING ABOVE ADDITION BY OVERLOOKING EXPLANATIONS SUBMITTED TO HIM AND. 6. THE ASSESSING OFFICER WRONGLY CHARGED INTEREST U /S. 234A, B, C AND D AND INITIATED PENALTY U/S 271(1)(B). 17. IN GROUND NO. 1 AND 2 OF APPEAL, THE ASSESSEE HAS AS SAILED TRANSFER OF JURISDICTION U/S. 127 OF THE ACT. THE COMMISSIONER OF INCOME TAX (APPEALS) DISMISSED THE OBJECTIONS RAISED BY ASSESSEE AGAINST CHAN GE OF JURISDICTION BY OBSERVING AS UNDER: 3.3 AT THE FAG END OF THE ASSESSMENT PROCEEDINGS, APPELLANT OBJECTED TO THE ORDER U/S 127 VIDE LETTER DATED 15.1.2014 FILED BY SPEED POST AND RECEIVED IN 9 ITA NOS. 1294 TO 1297/PUN/2016 A.YS. 2007-08, 2008-09, 2010-11, 2012-13 THE OFFICE OF AO ON 20.1.2014. IN RESPONSE TO THIS, AO VIDE A LETTER DATED 21.1.2014 INFORMED THAT COMMUNICATION REGARDING OBJECTION TO ORDER U/S. 127 PASSED BY THE SUPERIOR AUTHORITY MUST BE ADDRES SED TO THE OFFICE OF CIT- II, NASHIK. THEREAFTER, APPELLANT CHOSE NOT TO FILE ANY OBJECTION BEFORE THE CIT- II, NASHIK AND CONTINUED TO PARTICIPATE IN THE ASSE SSMENT PROCEEDINGS. APPELLANT WAS IN KNOWLEDGE OF ORDER U/S.127 SINCE D ECEMBER 2011 AND KEPT MUM TILL 15.1.2014. THEREAFTER, RATHER THAN APPROAC HING THE OFFICE OF THE CIT- II, NASHIK, OBJECTED WAS RAISED BEFORE THE AO WHO W AS NOT COMPETENT AUTHORITY TO DECIDE THE ISSUE. 3.4 IN THIS MANNER, APPELLANT NEITHER FILED ANY OBJ ECTION TO THE ORDER PASSED BY THE CIT U/S 127 BEFORE THE OFFICE OF CIT-II, NAS HIK AND NOR IT WAS CHALLENGED BY WAY OF WRIT PETITION. APPELLANT CONTI NUED HIS PARTICIPATION IN THE ASSESSMENT PROCEEDINGS. MOREOVER, ORDER PASSED U/S. 127 OF THE ACT IS NOT APPEALABLE BEFORE THE CIT(A). HENCE, APPEAL ON THIS GROUND IS NOT MAINTAINABLE AND THEREFORE TREATED AS DISMISSED. WE DO NOT FIND ANY INFIRMITY IN THE ORDER OF COMMISSIONER OF I NCOME TAX (APPEALS) IN REJECTING ASSESSEES CHALLENGE TO CHANGE OF JU RISDICTION U/S. 127 OF THE ACT. EVEN OTHERWISE, THE ORDER PASSED U/S. 127 IS NO T APPEALABLE. ACCORDINGLY, GROUND NO. 1 AND 2 RAISED IN APPEAL FOR ASSESSMENT YEAR 2010-11 IS DISMISSED BEING DEVOID ANY MERIT . 18. IN GROUND NO. 3 OF APPEAL, THE ASSESSEE HAS ASSAILED ASSESSMENT ORDER PASSED U/S. 153A R.W.S. 144 BEING WITHOUT ANY JURISDICTION, AS ASSESSMENT WAS MADE WITHOUT THERE BEING ANY INCRIMINATING MATERIAL. A PERUS AL OF THE RECORDS REVEAL THAT THE ASSESSEE HAD FILED RETURN OF INCOME FOR A SSESSMENT YEAR 2010-11 ON 16.11.2010. THE ASSESSMENT WAS PROCESSED U/S. 143 (1)( A) OF THE ACT BEFORE THE DATE OF SEARCH I.E. 09.08.2011. ADMITTEDLY, ON THE DATE OF SEARCH NO ASSESSMENT PROCEEDINGS WERE PENDING. HOWEVER, WE OBSERV E THAT THERE WAS STILL TIME FOR ISSUANCE OF NOTICE U/S.143(2) OF THE ACT. AS PER SECO ND PROVISO TO SECTION 153A, THE ASSESSMENT OR REASSESSMENT, IF ANY, RELATING TO ANY ASSESSMENT YEAR FALLING WITHIN THE PERIOD OF SIX ASSESSMENT YEARS REFERRED T O UNDER SECTION 153A IS PENDING ON THE DATE OF INITIATION OF THE SEARCH UNDER SEC TION 132, SHALL ABATE. THUS, ON THE DATE OF SEARCH, THERE WAS STILL SOME TIME WITH THE DEPARTMENT FOR ISSUANCE OF NOTICE U/S. 143(2) OF THE ACT. THEREFORE, IT CANN OT BE SAID THAT IN THE 10 ITA NOS. 1294 TO 1297/PUN/2016 A.YS. 2007-08, 2008-09, 2010-11, 2012-13 ASSESSMENT YEAR UNDER CONSIDERATION, NO ASSESSMENT WAS PENDING OR IT IS A CASE OF NON ABATED ASSESSMENT. HENCE, THE PLEA OF ASSESSEE TH AT IN THE ABSENCE OF INCRIMINATING MATERIAL, ASSESSMENT MADE U/S. 153A R.W.S. 144 IS WITHOUT ANY JURISDICTION SANS MERIT. ACCORDINGLY, GROUND NO. 3 RAISED IN APPEAL BY ASSESSEE IS DISMISSED. 19. IN GROUND NO. 4, THE ASSESSEE HAS ASSAILED ADDITION O F RS.47,12,511/- ON MERITS. THE PLEA OF THE ASSESSEE BEFORE AUTHORITIES BELOW IS THAT THE ASSESSEE HAS RECEIVED AMOUNT AS ADVANCE FROM SHRI DEEPESH KOTECHA FO R SELLING SHARE OF TAPI PRE-STRESSED LTD. THE FINDINGS OF COMMISSIONER OF INCOME T AX (APPEALS) ON THIS ISSUE ARE AS UNDER: THE APPELLANT SUBMITTED THAT AMOUNT OF RS 47,12,51 1 WAS RECEIVED AS ADVANCE FROM MR.DEEPESH FOR SELLING SHARES OF TAPI PRE-STRESS LTD. IN SUPPORT APPELLANT FILED CONFIRMATION OF DEEPESH MOTILAL KOT ECHA STATING THAT HE HAD GIVEN ADVANCE OF RS 47,12,511 VIDE CHEQUE DATED 2.4 .2009 AGAINST THE PURCHASE OF 69,500 SHARES HELD BY APPELLANT. APPELL ANT HAD FAILED TO FURNISH THE CONFIRMATION DURING THE COURSE OF ASSESSMENT PR OCEEDINGS AS WELL AS AT THE TIME OF FILING APPLICATION FOR ADMISSION OF ADD ITIONAL EVIDENCES. AT THE FAG END PHOTOCOPY OF CONFIRMATION WAS FILED. IT WAS ALS O ASCERTAINED THAT NO SHARE TRANSFER HAD TAKEN PLACE TILL THE DATE OF FIL ING THE CONFIRMATION ALTHOUGH ADVANCE WAS RECEIVED AROUND 7 YEARS BACK. NEITHER M ONEY WAS REFUNDED NOR SHARES WERE TRANSFERRED. MOREOVER, CONFIRMATION FILED DOES NOT INCLUDE DETAILS LIKE PAN OR THE OTHER DETAILS LIKE BANK STA TEMENT TO SHOW THE CREDITWORTHINESS OF MR. DEEPESH KOTECHA. IN THE CIR CUMSTANCES, XEROX COPY OF CONFIRMATION IS NOT FOUND CREDIBLE. FOR THE APPELLA NTS FAILURE TO FURNISH SATISFACTORY EVIDENCES REGARDING THE TRANSACTION CL AIMED BY THE APPELLANT THE CASH CREDIT OF RS. 47,12,511 REMAINS UNEXPLAINED AN D ADDITION MADE BY AO TO THAT EXTENT IS UPHELD. THERE IS NO MATERIAL ON RECORD TO CONTRADICT THE FINDINGS OF COMMISSIONER OF INCOME TAX (APPEALS). ACCORDINGLY, GROUND NO. 4 RAISED IN APPEAL BY ASSESSEE IS DISMISSED BEING DEVOID OF ANY MERIT . 20. THE GROUND NO. 5 RAISED OF APPEAL IS GENERAL IN NATURE AND HENCE, REQUIRES NO ADJUDICATION. 11 ITA NOS. 1294 TO 1297/PUN/2016 A.YS. 2007-08, 2008-09, 2010-11, 2012-13 21. IN GROUND NO. 6, THE ASSESSEE HAS ASSAILED CHARGING OF INTEREST U/S. 234A, 234B, 234C AND 234D AND INITIATION OF PENALTY PROCEEDINGS U /S. 271(1)(B) OF THE ACT. CHARGING OF INTEREST U/S. 234A, 234B, 234C AND 234D IS CON SEQUENTIAL AND MANDATORY; HENCE, THE OBJECTION RAISED BY ASSESSEE IS DIS MISSED. IN SO FAR AS ASSAILING OF INITIATION OF PENALTY PROCEEDINGS U/S. 271(1)(B) IS CONCERNED, T HE ISSUE IS PREMATURE AT THIS STAGE, THEREFORE, THE SAME IS DISMISSED. 22. IN THE RESULT, APPEAL OF THE ASSESSEE FOR ASSESSMENT YEAR 2010-11 IS DISMISSED. ITA NO.1297/PUN/2016 A.Y. 2012-13 23. THE ASSESSEE HAS RAISED FOLLOWING GROUNDS OF APPEAL IN A SSESSMENT YEAR 2012-13: 1. IN THE FACTS AND CIRCUMSTANCES OF THE CASE AND I N LAW, THE LEARNED ASSESSING OFFICER ERRED IN PASSING THE ASSESSMENT O RDER WITHOUT HAVING JURISDICTION BECAUSE, NO OPPORTUNITY OF BEING HEARD WAS GRANTED TO THE APPELLANT U/S. 127 AND ALSO DISREGARDING THE OBJECTIONS RAISED U/S . 292BB IN THIS REGARD. 2. IN FACTS AND CIRCUMSTANCE OF THE CASE AND IN LAW , THE LEARNED ASSESSING OFFICER ERRED IN PASSING ORDER U/S.153A R.W.S.144 E VEN THOUGH NO ORDER U/S 127 WAS PASSED. WITHOUT PREJUDICE TO THE ABOVE AND ALTERNATIVELY UN DER PROTEST : 3. ON FACTS AND CIRCUMSTANCE OF THE CASE AND IN LAW , THE LEARNED ASSESSING OFFICER ERRED IN MAKING ROUTINE ADDITIONS / DISALLO WANCES IN ASSESSMENT U/S 153A R.W.S. 144 IN THE ABSENCE OF ANY INCRIMINATING MATERIAL AND WITHOUT APPRECIATING THE FACT THAT ORIGINAL ASSESSMENT MADE U/S 143(1)(A) WHICH IS COMPLETED ON THE DATE OF INITIATION OF SEARCH GET A BATED. 4. IN THE FACTS AND CIRCUMSTANCES OF THE CASE AND I N LAW THE ASSESSING OFFICER ERRED IN ADDING RS.1,65,900/- BEING CASH FOUND FROM LOCKER OF THE APPELLANT BY WAY OF INCOME FROM CASH CREDIT U/S. 68 EVEN THOU GH THE SOURCE OF RS.1,65,900/- WAS ATTRIBUTABLE TO PAST SAVINGS OF T HE APPELLANT WHO IS A SENIOR CITIZEN AND THE SAID EXPLANATION WAS REJECTE D BY THE ASSESSING OFFICER EVEN DURING THE REMAND PROCEEDINGS. 5. IN THE FACTS AND CIRCUMSTANCES OF THE CASE AND I N LAW, THE COMMISSIONER OF INCOME TAX(A) ERRED IN CONFIRMING ABOVE ADDITION BY OVERLOOKING EXPLANATIONS SUBMITTED TO HIM AND. 12 ITA NOS. 1294 TO 1297/PUN/2016 A.YS. 2007-08, 2008-09, 2010-11, 2012-13 6. THE ASSESSING OFFICER WRONGLY CHARGED INTEREST U /S. 234A, B, C AND D AND INITIATED PENALTY U/S 271(1)(B). 24. THE GROUND NO. 1 AND 2 RAISED IN APPEAL BY ASSESSEE IN ASSESSMENT YEAR 2012-13, ARE IDENTICAL TO GROUND NO. 1 AND 2 RAISED IN ASS ESSMENT YEAR 2010-11. THE FINDINGS GIVEN BY US IN ASSESSMENT YEAR 2010-11 WOULD MUTATIS-MUTANDIS APPLY TO APPEAL FOR ASSESSMENT YEAR 2012-13 AS WELL. FOR THE DET AILED REASONS GIVEN IN ASSESSMENT YEAR 2010-11, THE GROUND NO. 1 AND 2 RAISED IN APPEAL FOR ASSESSMENT YEAR 2012-13 ARE DISMISSED . 25. IN GROUND NO. 3 OF APPEAL, THE ASSESSEE HAS ASSAILED T HE ORDER OF AUTHORITIES BELOW IN MAKING ADDITION/DISALLOWANCE U/S.153A R.W.S. 14 4 OF THE ACT IN THE ABSENCE OF ANY INCRIMINATING MATERIAL. AS POINTED EAR LIER, SEARCH WAS CARRIED ON 09.08.2011 I.E. IN THE PERIOD RELEVANT TO ASSESSM ENT YEAR UNDER APPEAL. THE ASSESSEE FILED RETURN OF INCOME U/S. 139 OF THE ACT ON 03.06.2013 I.E. AFTER THE DATE OF SEARCH. THE ENTIRE PROCEEDINGS WERE OP EN BEFORE THE ASSESSING OFFICER. THEREFORE, THE PLEA OF ASSESSEE THAT IN THE ABSENC E OF ANY INCRIMINATING MATERIAL, NO ADDITION/DISALLOWANCE COULD HAVE BEEN MADE IS WIT HOUT ANY MERIT. ACCORDINGLY, THE CONTENTIONS OF ASSESSEE ARE REJECTED. I N THE RESULT, GROUND NO. 3 RAISED IN APPEAL BY ASSESSEE IS DISMISSED . 26. IN GROUND NO. 4, THE ASSESSEE HAS ASSAILED ADDITION OF RS.1,65,900/- CASH SEIZED DURING ASSESSMENT PROCEEDINGS FROM LOCKER NO.98 OF UNITED WESTERN BANK LTD. NAVI PETH, JALGAON. THE PLEA OF THE ASSESSEE BEFORE AU THORITIES BELOW IS THAT THE CASH IN THE LOCKER IS FROM ACCUMULATED SAVINGS ON WHIC H TAX HAS BEEN DULY PAID. THE COMMISSIONER OF INCOME TAX (APPEALS) CONFIRMED THE ADDITION BY OBSERVING AS UNDER : 59.3 BRIEF FACTS ARE THAT DURING THE COURSE OF SEARCH OF LOCKER NO.98 WITH UNITED WESTERN BANK LTD. AT NAVI PETH, JALGAON, CAS H OF RS.1,65,900 WAS 13 ITA NOS. 1294 TO 1297/PUN/2016 A.YS. 2007-08, 2008-09, 2010-11, 2012-13 FOUND IN THE LOCKER. APPELLANT CONTENDED THAT AMOUN T WAS HER SAVINGS OUT OF THE TAX PAID INCOME. APPELLANT FAILED TO FURNISH AN Y EVIDENCE TO JUSTIFY THE CASH BALANCE BEING RECORDED IN ANY OF THE BOOKS OF ACCOUNTS. THEREFORE, AMOUNT OF RS.1,65,900 WAS ADDED U/S 69A OF THE ACT. DURING THE COURSE OF APPELLATE PROCEEDINGS THE APPELLANT REITERATED HER SUBMISSION S. APPELLANT DOES NOT MAINTAIN ANY CASH BOOK AND THERE IS NO COR ROBORATIVE EVIDENCE TO EXPLAIN THE SOURCE OF CASH FOUND IN THE LOCKER. IT HAS BEEN NOTED THAT APPELLANT WAS INVESTING IN FDRS AND KEEPING DEPOSIT S IN THE GROUP CONCERNS. ONLY POSSIBLE SOURCE OF CASH COULD BE FRO M HIRING OF MACHINES. FOR WANT OF CASH BOOK, IT IS NOT POSSIBLE TO ASCERT AIN AS TO WHAT WAS CASH LEFT WITH THE APPELLANT AFTER MEETING OUT BUSINESS AND PERSONAL EXPENDITURE. THEREFORE NO INTERFERENCE WITH THE FIN DING OF AO IS CALLED FOR. ADDITION MADE BY THE AO OF RS 1,65,900 IS UPHELD AN D GROUND RAISED BY THE APPELLANT IS DISMISSED. WE DO NOT FIND ANY INFIRMITY IN THE ORDER OF COMMISSIONER OF INCOME TAX (APPEALS) IN CONFIRMING THE ADDITION. THERE IS NO MATERIAL ON R ECORD CONTRARY TO THE FINDINGS OF COMMISSIONER OF INCOME TAX (APPEALS). ACCORDING LY, THE FINDINGS OF COMMISSIONER OF INCOME TAX (APPEALS) ARE CONFIRMED AND GROUND NO. 4 RAISED IN APPEAL BY ASSESSEE IS DISM ISSED . 27. THE GROUND NO. 5 RAISED IN APPEAL BY ASSESSEE IS GENE RAL IN NATURE AND HENCE, REQUIRES NO ADJUDICATION. 28. IN GROUND NO. 6, THE ASSESSEE HAS ASSAILED CHARGING OF INTEREST U/S. 234A, 234B, 234C AND 234D AND INITIATION OF PENALTY PROCEEDINGS U /S. 271(1)(B) & (C) AND 271 AAA OF THE ACT. CHARGING OF INTEREST U/S. 234A, 234B, 234C AND 234D IS CON SEQUENTIAL AND MANDATORY; HENCE, THE OBJECTION RAISED BY ASSESSEE IS DIS MISSED. IN SO FAR AS CHALLENGE TO INITIATION OF PENALTY PROCEEDINGS U/S. 271(1)(B) & (C) AND 271AAA IS CONCERNED, THE SAME IS PREMATURE, THEREFORE, THE SAME IS DISMISSED. 29. IN THE RESULT, APPEAL OF THE ASSESSEE FOR ASSESSMENT YEAR 2012-13 IS DISMISSED. 14 ITA NOS. 1294 TO 1297/PUN/2016 A.YS. 2007-08, 2008-09, 2010-11, 2012-13 30. TO SUM UP, ORDER PRONOUNCED ON THURSDAY, THE 26 TH DAY OF APRIL, 2018. SD/- SD/- ( . / D. KARUNAKARA RAO ) ( ! ' /VIKAS AWASTHY) / ACCOUNTANT MEMBER / JUDICIAL MEMBER / PUNE; !' / DATED : 26 TH APRIL, 2018 SB ) * +#,-! .!(, / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT. 2. / THE RESPONDENT. 3. THE CIT(APPEALS)-12, PUNE. 4. THE PR. CIT (CENTRAL), NASHIK. 5. %&' () , * () , + +,- , / DR, ITAT, B BENCH, PUNE. 6. './ 01 / GUARD FILE. // TRUE COPY // *2 / BY ORDER, 3 (- / PRIVATE SECRETARY * () , / ITAT, PUNE. APPEAL OF ASSESSEE ASSESSMENT YEAR RESULT ITA NO.1294/PUN/2016 2007-08 ALLOWED ITA NO.1295/PUN/2016 2008-09 ALLOWED ITA NO.1296/PUN/2016 2010-11 DISMISSED ITA NO.1297/PUN/2016 2012-13 DISMISSED