Income Tax Appellate Tribunal - Ahmedabad
Ajay V.Bhatt, Ahmedabad vs Assessee on 22 March, 2013
आयकर अपीलीय अिधकरण,
अिधकरण, अहमदाबाद Ûयायपीठ 'सी
सी'
सी अहमदाबाद ।
IN THE INCOME TAX APPELLATE TRIBUNAL
"A" BENCH, AHMEDABAD
सव[ौी मुकुल कुमार ौावत, Ûयाियक सदःय एवं ौी टȣ.आर.मीणा, लेखा सदःय के सम¢ ।
BEFORE SHRI MUKUL Kr.SHRAWAT, JUDICIAL MEMBER AND
SHRI T.R.MEENA, ACCOUNTANT MEMBER
IT(SS)A No.20/Ahd/2008
Late Ajay V. Bhatt, Vs Dy. Commissioner of
Legal Heir, Smt. Nayana Income Tax, Circle-9,
Ajay Bhatt. Ahmedabad.
112, Tapovan Society
B/h Manekbaug Hall,
Ambawadi
(Appellant) (Respondent)
Revenue by : Shelley Jindal
Assessee(s) by : Shri M.K. :Patel
सुनवाई कȧ तारȣख/
/ Date of Hearing : 22/03/2013
घोषणा कȧ तारȣख /Date of Pronouncement: 11/06/2013
आदे श/O R D E R
PER SHRI MUKUL Kr. SHRAWAT, JUDICIAL MEMBER :
This is an appeal filed by the Assessee emanated from an order passed under section 158BC read with section 143(3) and 254 of IT Act dated 26.12.2007.
2. At the outset, we have been informed that ITAT 'C' Bench in a combined order of several appellants, wherein this assessee is mentioned in the nomenclature as Shri Ajay V. Bhatt 6, Azad Flats, Nr. Azad Society Ambawadi Ahmedabad Vs. DCIT (Asstt) SR-5 Ahmedabad in ITA No.4413/Ahd/1996 order dated 2nd of January, 2006. The respected IT(SS) No.20/Ahd/2008 Shri Ajay V. Bhatt Vs. DCIT, C-9, Ahmedabad -2- co-ordinate bench has restored the entire issue back to the stage of the AO to decide de novo. In consequence thereupon, the case of the Assessee was fixed for hearing afresh. The Assessee has raised several grounds to be decided in the following manner:
Ground nos.1 to 3 are reproduced below:
"1. The order passed by the Assessing Officer is bad in law. The order is contrary to the provisions of law and the facts of your appellant's case. The order passed by the learned Assessing Officer be cancelled and/or suitably modified.
2. The AO erred in framing the order without following direction of the Income tax Appellate Tribunal. The assessing officer ought to have complied with directions of the Income Tax Appellate Tribunal. The order framed without following the directions is bad in law and be quashed.
3. The appellant submits that the assessment has been made by the assessing officer without affording any reasonable opportunity of being heard and further without providing copies of the materials, statements etc. and further without complying with the direction of the Hon'ble Income Tax Appellate Tribunal. The appellant submits that assessment be quashed.
3.1 The appellant submits that dates of hearing stated by the assessing officer at item no.13/page no.1 of the assessment order are incorrect and further observations made by him regarding non-compliance are also incorrect. The appellant submits that it be so held now."
2.1 Admittedly all these grounds being general in nature, hence not pressed by the learned A.R. Resultantly these grounds are hereby dismissed being not pressed.
3. Ground no.4 is reproduced below:
"The assessing officer erred in making observations regarding method of accounting followed by your appellant. It is respectfully submitted that your appellant did not follow mercantile system of IT(SS) No.20/Ahd/2008 Shri Ajay V. Bhatt Vs. DCIT, C-9, Ahmedabad -3- accounting and therefore the observations made by the assessing officer are not in consonance with the facts prevailing in the case of your appellant. It is submitted that it be so held now."
3.1 Although, this ground has been raised but it has no substantial effect on the assessment proceedings. It could be possible that under some wrong impression the AO might have mentioned that the Assessee had followed mercantile system of Accounting. Although before us learned AR has clarified that assessee had maintained cash system of accounting, however the assessment appeared to have been made as well on the basis of cash system hence this ground has no effect. Therefore, this ground has become redundant causing no prejudice to the assessee, hence hereby dismissed.
4. Ground no.5 is reproduced below:
"5.0 The assessing officer erred in making addition of Rs.2,35,000/- as undisclosed income alleging investment in land situated at Makarba. The appellant submits that he had made investment of Rs.2,15,000/- in view of the return of Rs.20,000/- out of Rs.2,35,000/- invested by him earlier and under the circumstances the net amount which was the investment was Rs.2,15,000/- only. It be so held now and the assessing officer be directed to delete an addition of Rs.20,000/- made by him. 5.1 The appellant without prejudice to above submits that addition of Rs.2,35,000/- in any event represented payment during the course of business operations and under the facts and payment has become irrecoverable and therefore it is deductible in business income. The appellant submits that deduction be allowed in computation of the total income."
4.1 Facts in brief as emerged from the corresponding order is that a search was carried out on several firms and simultaneously on this IT(SS) No.20/Ahd/2008 Shri Ajay V. Bhatt Vs. DCIT, C-9, Ahmedabad -4- individual on 21.1.1995. Those firms were engaged in the business of land development and construction. In accordance to the assessment order, the assessee had filed return on 9.2.1996 declaring undisclosed income at Rs.5,67,990/-. At the first round of proceedings, a block assessment order was made u/s. 158BC and the total "undisclosed income" was assessed at Rs.51,78,641/-. In respect of the above ground, the observation of the AO was that as per the seized material marked as Annexure 'A-1' there was a diary and on page 01 of the said diary there was a payment of Rs.10.10 lacs with regard to land situated near Anjali Cinema. It was found that the payment was made to Sri Govind Bhai Patel. According to AO, in the statement recorded u/s132(4) vide a question no.28 the assessee had accepted the investment in the said land from undisclosed sources. According to AO even before ADI in a statement the assessee had once again reiterated his disclosure of the said investment in the land. The assessee had objected the addition on the ground that although the payment was recorded but the said deal was cancelled in respect of the said land. Since the deal was not materialized, therefore, according to assessee the entire amount was refunded back by Mr. Patel. However, the AO was not convinced and held that as per the diary found at the time of search it was mentioned that a payment of Rs.10.10 lac was made in respect of the land, therefore, it was required to be assessed in the hands of the assessee. According to AO, there was no recording of receiving the money back from the said party. The AO has further distinguish that in respect of other parties whenever the amount was received back then an entry to that effect was recorded in the diary. The assessee had informed that the money was paid near October / November 1994, which was received back around March /April, 1995.
IT(SS) No.20/Ahd/2008 Shri Ajay V. Bhatt Vs. DCIT, C-9, Ahmedabad -5- But according to AO, till the date of search i.e. on 21.9.1995, there was no entry of receiving the money back recorded in the seized diary. In the absence of proper proof, the AO had taxed the said sum as undisclosed income in the hands of the assessee.
4.2 Even before us, the assessee has not furnished any evidence which can fully substantiate that in fact out of the said sum the assessee had received an amount of Rs.2,15,000/- back from the said party. This submission being not supported by any cogent evidence, therefore, we are not inclined to interfere with the findings of the lower authority. In the alternate, the assessee had pleaded that the benefit of set off against the unaccounted income declared by several firms be granted to the Assessee. The question of netting of undisclosed income against the undisclosed income of the firm shall be discussed hereinbelow while dealing with the ground no.13 of the grounds of appeal. As far as the impugned addition is concerned, in the absence of any corroborative / cogent evidence this ground is hereby dismissed.
5. Ground no.6 is reproduced below:
"The assessing officer erred in making addition of Rs.10,60,000/- as undisclosed income alleging payment of Rs.10,60,000/- towards land near Anjali Cinema by the appellant. The appellant submits that under the circumstances addition of Rs.10,60,000/- is erroneous as effectively no payment was made by the appellant. The appellant submits that addition be deleted and/or reduced.
6.1 The appellant without prejudice to above submits that addition of RS.10,60,000/- in any event represented payment during the course of business operations and under the facts the payment has become irrecoverable and therefore it is deductible in business IT(SS) No.20/Ahd/2008 Shri Ajay V. Bhatt Vs. DCIT, C-9, Ahmedabad -6- income. The appellant submits that deduction be allowed in computation of the total income."
5.1 On the basis of seized diary marked as Annexure A-1, it was found by the revenue department that on page 5 of the said diary there was a mention of payment of Rs.10.10 lac with regard to a land situated near Anjali Cinema. The payment was recorded in the name of Sri Govind Bhai Patel. Firstly; in a statement recorded under Section 132(4); and secondly; a statement made before the ADI; it was reiterated that the said amount was invested out of undisclosed sources in the land situated near Anjali Cinema. The only explanation of the assessee was that the said amount was received back from said party and that deal was cancelled. However, the AO had made a categorical finding that in the said diary there was no recording of money being received back. Further an another amount of Rs.50,000/- was paid as recorded at page no.5 of diary-1; thus the undisclosed investment as per A.O. was Rs.10,60,000/-
5.2 Having heard the submission of both the sides, we are of the considered opinion that that due to lack of any evidence supporting the contention of receiving the money back from the party, we hereby hold that the AO had rightly taxed the amount in the hand of the assessee. In view of Section 132(4) the presumption in that whatever recorded in the seized books is truly recorded. The assessee had made an alternate plea to set off the said undisclosed income against the disclosure made in the cases of firms. This alternate plea shall be discussed at length at the time of dealing with ground no.13 of grounds of appeal of the assessee hereinbelow. We hereby hold that due to lack of any evidence; that the IT(SS) No.20/Ahd/2008 Shri Ajay V. Bhatt Vs. DCIT, C-9, Ahmedabad -7- impugned amount was received back by the assessee; we hereby hold that the amount in question being found recorded in the seized diary therefore rightly taxed in the hands of the assessee. This ground is therefore dismissed.
6. Ground No.7 is reproduced below:
"7.0 The assessing officer erred in making addition of Rs.1,70,000/- alleging unaccounted investment in loans/advances. The appellant submits that no investment of Rs.1,70,000/- in fact was made by way loans/advances and the addition therefore is bad in law. The appellant submits that the addition of Rs.1,70,000/- being contrary to the facts and the provisions of law be deleted.
7.1 The appellant without prejudice to above further submits that addition of Rs.1,70,000/- being excessive be directed to be scaled down. The appellant submits that appropriate relief be allowed as per the provisions of law."
6.1 It was noted by the AO that on page 10 of diary A-1 there was a mention of payment made to one Sri Madhu Bhai and Kirti Bhai on interest. A statement of the assessee was recorded u/s.132(4) of IT Act wherein he has revealed that the upper half of the page had reflected Rs. 70,000/- paid to Madhu Bhai @ 2% per month interest and the lower half of the page had reflected a payment of Rs.1 lac given on loan to Sri Kirti Bahi @ 2.5% interest. On the basis of the statement and the contents of the diary the AO had made the addition of Rs. 1,70,000- for AY 1995-96 of the block period.
6.2 Now before us, the contention of the assessee is that the actual advance was only Rs.7,000/- and Rs.1,000/- totaling Rs.8,000/-. The AO IT(SS) No.20/Ahd/2008 Shri Ajay V. Bhatt Vs. DCIT, C-9, Ahmedabad -8- had wrongly added zero on the said sum. Rather the assessee had furnished affidavits of both those persons before the AO. In the said affidavit they have only confirmed that in total a friendly loan of Rs.8,000/- was taken for a short period from the assessee. In view of this, learned AR has contested that the AO had completely ignored those affidavits.
6.3 Having heard the submission of both the sides we are of the considered opinion that those affidavits were nothing but self serving document hence cannot be relied upon in tax proceedings specially when there is no independent corroborative evidence. We find no force in this ground of the assessee. Hence dismissed.
7. Ground No.8 is reproduced below:
"8. The assessing officer erred in making addition of Rs.10,05,925/- alleging to be unaccounted investment in shares, debentures. The appellant submits that addition is contrary to the provisions of law and the facts in the case of the appellant. The addition be deleted.
8.1 The appellant submits that the addition of Rs.10,05,925/- representing the principal amount is arbitrary and not in consonance with the provisions of law. The appellant submits that no investment was made by the appellant and therefore the question of any addition does arise. The appellant submits that addition be deleted.
8.2 The appellant without prejudice to above submits that addition of Rs.10,05,925/- made by the assessing officer is excessive. The appellant submits that addition if any to be upheld be restricted to a nominal amount and the balance of the addition be deleted."
7.1 During the course of search unaccounted shares amounting to Rs.10,05,925/- were seized from the possession of the assessee. While IT(SS) No.20/Ahd/2008 Shri Ajay V. Bhatt Vs. DCIT, C-9, Ahmedabad -9- recording the statement under Section 132(4) the assessee had admitted the undisclosed income in shares. However during the course of assessment proceedings the assessee had taken a stand that the investment in the shares did not belong to him. The AO had asked to furnish the complete details with regard to the claim. According to AO the assessee had not furnished confirmation letter of relatives. The AO had mentioned the year wise break up for the purchase of shares on the basis of the information provided by the assessee. Resultantly a year wise investment of undisclosed income was taxed in the hands of the assessee.
7.2 The assessee's explanation was that shares to the extent of Rs.1,85,675/- was duly recorded in the books of account of the assessee. Part of the shares were duly recorded in the name of the family members. So the contention is that once those shares were recorded in the books of accounts, therefore should not be treated as undisclosed income in the block assessment. Further learned AR has also pleaded that shares of Rs.26,145/- was in the name of the assessee's mother. Learned AR has informed that unfortunately the mother had expired hence her confirmation could not be produced. Next, he has also informed that there was a totaling mistake and the total of the shares investment was Rs.8,93,505-. He has informed that the difference of Rs.1,12,420/- is required to be deleted being a totaling error committed by the AO. He has also drawn our attention that the assessee had disclosed unaccounted income of shares of Rs.5,60,000/-. According to him the assessee was in a position to explain the investment in shares upto the extent of Rs.8,84,240/.The bifurcation of the same is summarized as under:
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1) stated to be recorded in the books of account Rs. 1,85,675/-
2) stated to be investment by mother Rs. 26,145/-
3) stated to be totaling error Rs. 1,12,470/-
4) stated to be declared of 158 BC return
"undisclosed income". Rs. 5,60,000/-
Rs.8,84,240/-
7.3 On the basis of the above explanation, the claim before us is that out of the total addition of Rs.10,05,925/- the addition to the extent of Rs.884,240/- is to be deleted and the balance amount of Rs.1,21,685/-
may be treated as unexplained investment in the shares, but subject to set-off against the unaccounted declared income.
7.4 We have considered the rival submissions and examined the material placed on record. Out of the above four items, three of them can be considered for desired relief. But as far as the adjustment of Rs.5,60,000/- being the amount declared u/s 158 BC is concerned, we have noted already the claim of the assessee is that he had already declared Rs.5,60,000/- as "undisclosed income" in the return; stated to be representing investment in shares. So we hereby hold that the nature of disclosure in the said return is required to be ascertained first and if it is found correct, as alleged before us, then the AO is free to allow the adjustment. In respect of rest of the items; in our opinion the investment in the name of the deceased mother is monetarily trifle; therefore can be accepted. However in respect of the declaration in books, and an existence of a totaling error is concerned the same is allowable but subject to verification; therefore required to be ascertained by the AO. With these observations this ground is partly allowed in the terms indicated supra.
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8. Ground No.9 is reproduced below.
"9.0 The assessing officer erred in making addition of Rs.1,00,000/- alleging purchases and expenses incurred during foreign tours undertaken in 1988 and 1993. The appellant submits that no expenditure in fact was incurred and the addition therefore is bad in law. The appellant submits that the addition of Rs. 1,00,000/- being contrary to the facts and the provisions of law be deleted.
9.1 The appellant without prejudice to above further submits that addition of Rs.1,00,000/- being excessive be directed to be scaled down. The appellant submits that appropriate relief be allowed as per the provisions of law.
9.2 The appellant without prejudice to above submits that the appellant had undertaken tour for the purpose of the business and therefore expenditure of Rs.1,00,000/- was in the nature of expenditure on profession and therefore deductible in computation of the total income. The appellant submits that deduction be allowed as per the provisions of law."
8.1 It was noticed by the AO that the assessee had visited USA/UK in the year 1988 and Africa in the year 1993. In his opinion for shopping assessee must have incurred same expenditure; therefore, for each trip a sum of Rs.50,000/- was taxed.
8.2 The main contention is that merely on estimation the impugned addition of Rs.1,00,000/- was made. No evidence was detected to establish the impugned allegation. In the case of Morarjee Gokuldas Spinning & Weaving Co. Ltd 95 ITD Pg 1 (Mum) (TM)/ 98 TTJ 201 (Mum.) TM) it was held that in the absence of any incriminating material or evidence no addition of undisclosed income can be made. We find force in this argument because in the assessment order there is no mention of any evidence of expenditure incurred during foreign visit.
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Merely on an apprehension this addition must not survive; hence hereby directed to delete the same.
9. Ground No.10 is reproduced below:-
"10.0 The assessing officer erred in making addition of Rs.10,75,000/- alleging to be unaccounted investment in shares, debentures. The appellant submits that addition is contrary to the provisions of law and the facts in the case of the appellant. The addition be deleted.
10.2 The appellant submits that the addition of Rs.10,75,000/- representing the principal amount is arbitrary and not in consonance with the provisions of law. The appellant submits that no investment was made by the appellant and therefore the question of any addition does arise. The appellant submits that addition be deleted.
10.3 The appellant without prejudice to above submits that addition of Rs.10,75,000/- made by the assessing officer is excessive. The appellant submits that addition if any to be held be restricted to a nominal amount and the balance of the addition be deleted."
9.1 In the diary marked as A-1 there was a mention of "Mono Magnur" alongwith certain figures, reproduced by AO as 13.50 + 1.50 + 6.50 = 21.50 A + S 50%". The Revenue Department had deciphered the coded notings and held that "A" and "S" stand for Sri Ajay V. Bhatt and Sri Suresh Patel respectively. That fact was stated to be affirmed by those persons. The assessee was asked to explain that why 21.50 be not treated as investment in the ratio of 50% each. The assessee had contended that 10,000 equity share @ Rs.10/- each were allotted to one Sri Naresh Patel. An amount of Rs.2,15,000/- represented 'Service Charges' and only 50% was to be received only on sale of shares. It was thus contested that the alleged sum of Rs.21,50,000/- did not represent un-explained investment.
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However, the AO was not convinced and held that said explanation was given which suited the assessee; hence rejected. In the result 50% i.e Rs.10,75,000/- was taxed.
9.2 From the side of the appellant mainly three arguments are raised. The first one is general in nature that the Revenue Department has wrongly decoded the amount in lakhs; According to us, this contention is incorrect considering the other evidences as also the seized material. The second argument is that the investment is by said N.R.I. Mr. Naresh Patel because the shares are in his name. In this connection page 201 of assessee P.B. containing 215 pages is mentioned. But the fact is that this paper-book do not contain the certificate as required under Rule 18 of Appellate Tribual Rules 1963. Rather there is no request of the assessee to accept the same as additional evidence. It may not be out of place to mention that the importance of this Rule has been discussed in the past in the open court on so many occasions and Ld. AR is well aware about this procedural aspect; being an experienced senior person; however in his wisdom chosen not to certify the paper-books as prescribed under Rule 18 of Tribunal Rules. Hence, we have no alternative but to ignore this piece of document being not placed before the AO for requisite investigation. Rather the undisputed fact is that the said share was duly found recorded in the diary seized; hence in the light of the provision of Sec. 132(4A) the contents were presumed to be true; unless otherwise conclusively proved. We, therefore negate this argument as also the argument of earning of commission from the said person. Next, the third argument is that the said investment has already been taken into account in the inventory as per Annexure-O; hence no separate addition is IT(SS) No.20/Ahd/2008 Shri Ajay V. Bhatt Vs. DCIT, C-9, Ahmedabad
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required to be made. This aspect is nothing but verification of an already existed list. If it is there, then justifiably; it ought not to be doubly taxed. For this limited purpose of verification, this ground is restored back to AO; otherwise to be treated as dismissed.
10. Ground No.11 is reproduced below:
"11.0 The assessing officer erred in making addition of Rs.4,80,000/- alleging unaccounted household expenses. The appellant submits that addition is merely on estimate basis and contrary to the facts and not sustainable in the eyes of law. The addition being erroneous be deleted.
11.1 The appellant further submits without prejudice to above that estimate household expenses and the addition of Rs.4,80,000/- are excessive. The appellant submits that addition of Rs.4,80,000/- be scaled down and appropriate relief be allowed. 11.2 The appellant without prejudice to above submits that the assessing officer ought to have allowed credit in respect of withdrawals by the appellant and his family members. The appellant submits that appropriate credit be directed to be allowed."
10.1 The allegation of the AO was that the household withdrawals shown by the assessee in the past for respective financial years did not commensurate with the standard of living. The AO has thereafter estimated the year-wise withdrawals from A.Y. 1986-87 to 1996-97 totaling Rs.4,80,000/- and taxed accordingly.
10.2 Having heard the rival submissions, we hereby hold that the impugned estimated addition being not emerging from the seized material therefore out of the clutches of "undisclosed income", hence following the precedent of Morarjee Gokuldas Spinning & Weaving Co. (supra) this addition is hereby deleted. Ground is allowed.
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11. Ground No.12 is reproduced below:
"The assessing officer erred in adding Rs.15,24,274/- in final computation of the total income. The appellant submits that Rs.15,24,274/- has already been included in different assessment years and therefore its addition in the final computation has been considered twice. The appellant submits that addition of Rs.15,24,274/- be deleted."
11.1. On perusal of the wordings of the ground as well as on hearing the submission of the Ld. AR, we are of the view that had there been a calculation error, being the said sum already included in different assessment years, then it could have been rectified u/s 154 of the IT Act. One must not forget that this is the second round of appeal, therefore, the appellant had ample opportunity to get such calculation mistakes rectified. Otherwise, the AO still has power as also duty to rectify any calculation mistake if so committed. Nonetheless, no legal issue has been raised in this ground. Hence hereby dismissed subject to the remarks protanto.
12. Ground No.13 is reproduced below:-
"The assessing officer erred in not properly allowing benefit of set off available to the appellant in respect of share in profits and gains of firms in which the appellant was a partner. The appellant submits that the assessing officer be directed to allow set off in accordance with the provisions of law and the facts in the case of the appellant."
12.1 During the assessment proceedings, the Assessee had made a claim that set off of undisclosed income be granted against the undisclosed income assessed in the cases of the firms to the extent of his share; stated IT(SS) No.20/Ahd/2008 Shri Ajay V. Bhatt Vs. DCIT, C-9, Ahmedabad
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to be holding 1/3rd share in the said firms. The AO had tabulated the total disclosure of 9 firms at Rs.1,64,92,170/-. He has held, "The submission made by the assessee have been examined carefully. The assessee will be allowed set off of 1/3rd share from the disclosed income of the firms referred to above against the disclosed/accepted amount of undisclosed income in his return. The assessee will not be allowed set off against the firm's income against any amount which he has not accepted as undisclosed during the assessment proceedings."
12.2 The assessee is now contesting that the Total undisclosed income as per the order of the several firms; total eight in number, was at Rs, 2,40,64,126/-. The assessee's 1/3rd share thus claimed to be Rs.80,20,573/-. The assessee has further claimed that he had 60% share in M/s. Shreeji Developers; which was claimed to be Rs.9,40,055/-. Now the vehement contention is that the AO had allowed the set off only to the extent of Rs.42,47,278/-, therefore, the AO may be directed to grant set off of the balance amount. This legal proposition of the assessee is on the logic that a partner (i.e. assessee in appeal) having no other source from where an undisclosed income could have been earned and that the source of undisclosed income received was from the various firms, where he is a partner, which was thus invested by him in various undisclosed assets, thus legally allowed the benefit of set off. The amount invested in such undisclosed assets may not be treated as undisclosed income in to, but telescoping be allowed against the share of undisclosed income assessed in the cases of those firms. This argument appears to be logical that the undisclosed share of profit earned as a partner might have been invested towards undisclosed assets, the value of the same now held as IT(SS) No.20/Ahd/2008 Shri Ajay V. Bhatt Vs. DCIT, C-9, Ahmedabad
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undisclosed income in the hands of the assessee. We, therefore, deem fit to restore this matter back to the AO to first check the finally determined undisclosed income of each firm and then determine the share of the assessee, after considering the constitution of those firms and then allow the telescoping or set off against the total undisclosed income computed in the hands of the assessee, which pertains to unexplained investment in certain impugned assets. With these directions, this ground may be treated as allowed for statistical purpose.
13. Ground No. 14 is reproduced below:
"The assessing officer erred in assessing total undisclosed income at Rs.52,28,640/- which is erroneous and contrary to the facts. The assessment has been made by the assessing officer without affording reasonable opportunity of being heard and is in contradiction to the fact and provisions of law. The appellant submits that assessment be scaled down."
13.1 This ground being general in nature without raising any specific grievance, have not pressed, therefore hereby dismissed.
14. Ground no.15, 15.1 and 15.2 are reproduced below:
"15. The assessing officer erred in not properly computing the tax payable by your appellant and he has not taken into consideration the appropriation available to your appellant out of cash seized during the proceedings u/s 132. It is respectfully submitted that the cash seized is available for appropriation in view of the petition made by the appellant and the assessing officer ought to have allowed the same.
15.2 The appellant further submits that under the assessing officer/the Tax Recovery Officer had recovered several amounts either by payments and/or through attachment of bank accounts in respect of which no details have been furnished to the appellant.
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The assessing officer ought to have furnished complete details and ought to have allowed credit in respect of such realization. 15.3 It is respectfully submitted that the assessing officer be directed to allow the relief in respect of cash seized and further recoveries made as per the provisions of law. Your appellant prays for leave to add, alter, amend and/or withdraw all or any of the grounds before final hearing of the appeal."
14.1 On hearing the submission, in our opinion this grievance should not have been made because it pertains to administrative decision of the Revenue Authorities as prescribed u/s. 132B(1)(i) of the Act. This section prescribed that the assets seized u/s. 132 may be dealt with in the manner laid down i.e. in the event of any existing liability or the amount of liability determined on completion of assessment under Chapter XIV- B for the Block-period, then the said liability may be recovered out of such assets. Therefore the cash seized, claimed to be Rs.8,25,000/-, required to be dealt with as prescribed in the statute. The assessee has placed reliance on the decision of CIT Vs. Kesar Kimam Karyalay 278 ITR 596 (Del). However, we are of the view that the AO is otherwise empowered by the Act itself to grant such adjustment against the cash seized. We direct accordingly. This ground is allowed.
15. In the result, appeal is partly allowed.
Sd/- Sd/-
(टȣ.आर.मीणा) (मुकुल कुमार ौावत)
लेखा सदःय Ûयाियक सदःय
( T.R. MEENA ) ( MUKUL Kr. SHRAWAT )
ACCOUNTANT MEMBER JUDICIAL MEMBER
Ahmedabad; Dated 11/ 06/2012
Prabhat Kr. Kesarwani, Sr. P.S.
TRUE COPY