PRAKASH P. MALI,MUMBAI vs. DCIT CENT. CIR. 4(4), RANGE -4, MUMBAI

In all these AYs, the additions made by the end the fate of these additions in the first appellate proceedings are tabulated as under:-

Ld Counsel for the assessee brought our attention to each of the Assessment Year and submitted that none of these additions were made based on the ‘seized material’. Further, he submitted that the Shri Prakash P. Mali was not covered u/s 132 of the Act by drawing an assessee’s specific. There was survey action u/s 133 of the Act. Further, he informed that in all these assessment years, AO made assessments u/s 143(3) r.w.s 153C of the Act without having seized any documents from the premises of the search person implicating the assessee on the issue of unaccounted income. Referring to the documents seized namely the ‘gift’ relating transaction between Mr. Shivlal and the assessee and the statement showing payment for purchase of plot (para ‘c’ of page ‘7’ of the CIT (A)’s order is relevant), which are seized from the search premises, ld Counsel for the assessee demonstrated that the ‘gift’ in question was an accounted one, duly declared in the return of income. Referring to the other papers relating to the transaction between Mr. Shivlal and assessee, Ld Counsel for the assessee submitted that the said transaction is not between Mr. Shivlal and the assessee. They mistakenly communicated these papers to the assessee. Para 10 of the CIT (A)’s order is relevant in this regard. Referring to the other papers also, Ld Counsel for the assessee mentioned that no addition was eventually made on this account as they are all found to be accounted transactions. Therefore, for all the four years under consideration, the transactions appeared on the papers seized, allegedly connected to the assessee, are found to be either accounted or not found worthy for making any additions. In such case, the unabated assessments could not have been re-opened. He relied on various in support of the same including the decision of Tribunal in the case of Shri Vimal Kumar Rathi vs. DCIT in ITA Nos. and others, dated 16.10.2015, wherein one of us (AM) is a party to the said order and demonstrated that as and when the assessments involved are non- abated assessment (either regular assessments are completed u/s 143(3) and the quantum proceedings are not pending or the due date for issue of notice us 143(2) has expired), the additions, if any, in the search assessment can be made basing on any incriminating material seized u/s 132 of the Act and forwarded to the concerned AO as per the procedure laid down in the Act. Drawing our attention to each of the assessment order and the additions made by the AO, Ld Counsel for the assessee demonstrated that there is no reference to the seized material in any of the additions made by the AO. In support of his contention that when there is finding or discussion about the any incriminating material seized during the search, the assessment order passed u/s 153A r.w.s 143(3) of the Act is not tenable in law, Ld Counsel for the assessee filed written submissions and also relied on following decisions viz., (i) CIT vs. Smt Shaila Agarwal, 346 ITR 130; (ii) All Cargo Global Logistics Ltd vs. DCIT [18 ITR 106] (Mum.) (SB); (iii) Spacewood Furnishers Pvt Ltd Ors vs. DGIT & Ors. [340 ITR 393 (Bom)] (iv) Shri Govind Agarwal v. ACIT being ITA No: 3389/Mum/2011 dated 10.01.2014; (v) SKS Ispat and Power Limited vs. DCIT l (vi) Sinhgad Technical Education Society vs. ACIT [2011] 140 TTJ 233 and others.