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Income Tax Appellate Tribunal, “H” BENCH, MUMBAI
Before: SHRI SHAMIM YAHYA, AM & SHRI SANDEEP GOSAIN, JM
O R D E R Per Shamim Yahya, A. M.: This appeal by the assessee is directed against the order by the Commissioner of Income Tax (Appeals) dated 11.05.2015 and pertains to the assessment year 2008- 09. 2. The grounds of appeal
read as under:
1. On the facts and circumstances of the case and in law the Hon'ble Commissioner of Income Tax (Appeal) has erred in confirming the addition made by Ld. AO of Rs.1,00,000/- being alleged undisclosed receipt of 2 Shri Chandranand Mishra vs. Dy. CIT Commission in relation to alleged stage performing at Ramee Royal, Dubai, UAE by Ms. Priyanka Chopra on protective basis. An amount of Rs.16,00,000/- including sum of Rs.1,00,000/- is also added in the hands of Ms. Priyanka Chopra for A.Y. 2008-2009. It is submitted that such addition has been made on the basis of loose paper seized at Page no.118 of Annexure A -7 at the premises of appellant. It is however submitted that during assessment proceedings, it was submitted that Ms. Priyanka Chopra has reached to the said event however, on account of insufficient security reason; no performance has been carried out. It is further submitted that no evidences whatsoever have been found by the Income Tax Search team which indicates performance at such alleged function nor any loose papers have been found during search proceedings which indicates any such receipt of Income in cash and therefore, estimation and receipt of alleged undisclosed Income of Rs.15,00,000/- by Ms. Priyanka Chopra and Rs.1,00,000/- by appellant out of books is unreasonable and unlawful. In view of the above, we would pray your honour to delete such arbitrary addition made by the Ld. AO which is confirmed by the Hon'ble Commissioner of Income Tax (Appeal).
It is submitted that no evidence regarding receipt of cash has been found by search party as well as Ld. AO hence, Income added on assumptions and presumptions is against basic of principles of law and against Natural justice. In view of the above facts, such addition should be deleted.
The assessee has also raised additional grounds:
Additional Ground: The assessment order passed u/s. 143(3) r.w. Sec 153A for the assessment year 2008-09 in the case of the appellant is bad-in-law because no document or valuable asset belonging to the appellant was seized. The documents relied upon in the assessment order were impounded during the survey action u/s. 133A.
We find that in this case the assessee has filed return of income on 01.09.2008. Subsequently, this assessment was framed u/s. 153A pursuant to search on 24.01.2011 in the case of Ms. Priyanka Chopra. We find that the Hon'ble jurisdictional High Court in the case of CIT vs. Continental Warehousing Corporation (Nhava Sheva)
3 Shri Chandranand Mishra vs. Dy. CIT Ltd. [2015] 58 taxmann.com 78 (Bom), order dated 21.04.2015 has expounded that in case of assessment u/s. 153A, no addition is sustainable de hors any incriminating material found in search in case of a abated assessment. Since the issue raised in the additional ground goes to the root of the matter, we admit this ground raised on the anvil of honourable apex court decision in the case of N.T.P.C. Ltd. We find that a similar issue was raised in the case of Ms. Priyanka Chopra (in for assessment year 2009-10), related with the same addition. In that case also we had remitted the matter to the file of the assessing officer to consider the issue in accordance with the decision of Hon'ble jurisdictional High Court in the case of Continental Warehousing Corporation (Nhava Sheva) Ltd. (supra). Since the present issue is also identical, we remit this issue also to the file of assessing officer. He is directed to consider the issue afresh in accordance with the decision of honourable jurisdictional High Court (supra) after referring to the requisite factual details necessary.