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08-07-2019,Mahesh N. Vyas, Section 250, 68, 132, Tribunal Ahmedabad

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1 week 17 hours ago #10024 by amit
Section - 250, 68, 132, 153A, 144, 139(1)
Order Date - 08-07-2019
Favouring - Assessee allowed for Statistical purposes
Court - Tribunal Ahmedabad
Appellant - Mahesh N. Vyas
Respondent - DCIT
Justice - RAJPAL YADAV JM & AMARJIT SINGH AM
Citation - 719Taxpundit118
Appeal No. - IT(ss)A Nos.415 & 416/Ahd/2017
Asstt. Year - 2010-11 & 2011-12

Order

PER : RAJPAL YADAV

The present two appeals are directed at the instance of the assessee against the separate orders of even date i.e. dated 18/08/2017 passed by the Ld. Commissioner of Income Tax(Appeals)-11, Ahmedabad [‘CIT(A)’ in short] in Assessment Years (AYs) 2010-11 & 2011-12.

2. The assessee has raised six grounds of appeal in each assessment year. However, at the time of hearing, ld.counsel for the assessee has confined his argument to a limited issue whereby he contended that additions on merit has been made u/s.68 of the Income Tax Act, 1961 (hereinafter referred to as “the Act”) in both the years without there being any support of seized material. He pointed out that addition of Rs.6,25,000/- and Rs.12,43,028/- has been made by the Assessing Officer in AYs 2010-11 & 2011-12 u/s.68 of the Act which has been confirmed by the CIT(A).

3. With the assistance of Ld.Representatives, we have gone through the record carefully. It emerges out from the record that a search u/s.132 of the Act was conducted in the case of Ship Breakers Group of Bhavnagar on 17/02/2012. The assessee was also covered under search action and, therefore, in order to give logical end to the proceeding, a notice u/s.153A of the Act was issued upon the assessee on 21/12/2012 which was duly served upon the assessee. It also emerges out from the record that in response to such notice assessee did not file returns of income in both the years. The Ld. Assessing Officer set the assessment proceedings in motion by issuance of notice u/s.142(1) of the Act which was issued on 10/02/2014. The assessee did not respond to all these notices, hence an ex-parte proceeding was taken up u/s.144 of the Act and assessment orders were passed on 24/03/2014. The Ld.AO made addition of Rs.6,25,000 and Rs.12,43,028/- in AYs 2010-11 & 2011-12 respectively.

4. Before Ld.CIT(A), assessee took various legal pleas whereby he has challenged the jurisdiction of the Assessing Officer u/s.153A of the Act. The Ld.CIT(A) did not accept the contentions of the assessee. According to the CIT(A), the assessee did not file return of income u/s.139(1) in AY 2010-11. The return was filed on 30/03/2012 which is subsequent to the search. Hence, the asse sment proceedings would abate and assessment is to be passed u/s.153A of the Act. The finding on merit in both the assessment years is verbatim same. We take note of the finding recorded by the CIT(A) in AY 2010-11 which reads as under:

“5.1. The AR of the appellant submitted that the AO had taken into consideration the unexplained cash credits from the balance-sheet filed alongwith the return u/s.139 of the Act. He made addition of the cash creditors on the alleged ground of non compliance by the appellant. The AO did not have any material on record for making the above addition.

5.2. Facts of the case and findings of the AO are self evident on the issue that the assessee did not furnish confirmations of the cash creditors nor did he furnish any other information as called for by the AO in the show cause notice dated 18.3.2014. So far as the matter of addition made without referring to any seized material is concerned, the position of law on this issue is well settled. The assessee furnished return of income for the year under consideration u/s.139(1) on 13.3.2012 and the search was conducted on 17.2.2012. Thus, the return was filed after initiation of the search. Therefore, the assessment proceedings for the year under consideration were abated. In view of the above facts and circumstances, the ground of appeal is dismissed.”

5. The ld.counsel for the assessee while impugning the orders of Ld.CIT(A) in both the years contended that the Ld. First Appellate Authority has not taken into consideration the submissions filed by the assessee. He took us to the copies of the written submissions filed before the First Appellate Authority on the issue on merit. At this stage, it is pertinent to take note of the relevant submissions made by the assessee which read as under:

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