Shri Udhav Varadmal Meghani, Kolhapur v. DCIT, Kolhapur

ITA 1139/PUN/2012 | 2008-2009
Pronouncement Date: 29-10-2013 | Result: Partly Allowed

Appeal Details

RSA Number 113924514 RSA 2012
Assessee PAN ABVPM4374P
Bench Pune
Appeal Number ITA 1139/PUN/2012
Duration Of Justice 1 year(s) 4 month(s) 28 day(s)
Appellant Shri Udhav Varadmal Meghani, Kolhapur
Respondent DCIT, Kolhapur
Appeal Type Income Tax Appeal
Pronouncement Date 29-10-2013
Appeal Filed By Assessee
Order Result Partly Allowed
Bench Allotted B
Tribunal Order Date 29-10-2013
Date Of Final Hearing 31-07-2013
Next Hearing Date 31-07-2013
Assessment Year 2008-2009
Appeal Filed On 31-05-2012
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH B PUNE BEFORE: SHRI G. S. PANNU ACCOUNTANT MEMBER AND SHRI R.S. PADVEKAR JUDICIAL MEMBER ITA NO. 1134 / P N/ 20 12 ASSESSMENT YEAR : 2008 - 09 SOU. DIVYA JAYRAM MEGHANI PROP. M /S. SAHARA WINE 2100/155B VIDHYA COLONY KOLHAPUR VS. DY. CIT CENTRAL CIRCLE KOLHAPUR (APPELLANT) (RESPONDENT) PAN NO. ABVPM4374P ITA NO S . 1135 & 1136 /PN/20 12 ASSESSMENT YEAR S : 2007 - 08 & 2008 - 09 SOU. PREETI UDDHAV MEGHANI PROP. M/S. SAMATA WINES 2100/155B VIDHYA COLONY KOLHAPUR VS. DY. CIT CENTRAL CIRCLE KOLHAPUR (APPELLANT) (RESPONDENT) PAN NO. ABVPM4375N ITA NO S . 1137 & 1138 /PN/20 12 ASSESSMENT YEAR S : 2007 - 08 & 2008 - 09 SHRI JAYRAM VARADMAL MEGHANI PROP. M/S. SAGAR WINE SH OP 2100/155B VIDHYA COLONY KOLHAPUR VS. DY. CIT CENTRAL CIRCLE KOLHAPUR (APPELLANT) (RESPONDENT) PAN NO. ABNPM8623P ITA NO. 1139 /PN/20 12 ASSESSMENT YEAR : 2008 - 09 SHRI UDDAV VARADMAL MEGHANI PROP. M/S. PERINA CREAM VALLEY 2100/155B VIDHY A COLONY KOLHAPUR VS. DY. CIT CENTRAL CIRCLE KOLHAPUR (APPELLANT) (RESPONDENT) PAN NO. ABSPM9197P APPELLANT BY: SHRI M.K. KULKARNI RESPONDENT BY: SHRI ADARSH KUMAR MODI DATE OF HEARING : 01 - 08 - 2013 DATE OF PRONOUNCEMENT : 29 - 10 - 2013 2 ITA NO. 1134 1135 1136 1137 1138 & 1139/PN/2012 ORDER PER BENCH : - THIS BATCH OF SIX APPEALS BY THE DIFFERENT ASSESSEES ARE ARISING OUT OF THE COMMON SEARCH AND SEIZURE ACTION U/S. 132 OF THE INCOME - TAX ACT IN THE MEGHANI GROUP FROM 18 - 04 - 2007 TO 20 - 04 - 2007. THE FACTS AND ISSUES ARE IDENTICAL HENCE THIS BATCH OF SIX APPEALS ARE DISPOSED OF BY THIS COMMON ORDER. ITA NO. 1134/PN/2012 SOU. DIVYA JAYRAM MEGHANI (A.Y. 2008 - 09) 2. IN THIS APPEAL THE ASSESSEE HAS TAKEN THE FOLLOWING GROUNDS: 1. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW THE LD. C IT(A) - KOLHAPUR WAS NOT JUSTIFIED IN CONFIRMING THE ADDITION MADE BY THE A.O. OF RS.4 50 000/ - AS UNACCOUNTED SALES. IT IS SETTLED LAW THAT THE SALES AS SUCH CANNOT BE ADDED AS INCOME. AT THE MOST SOME PROFIT PERCENTAGE CAN BE ESTIMATE. IT BE HELD ACCORD INGLY. 2. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW THE LD. CI T(A) KOLHAPUR WAS NOT JUSTIFIED IN CONFIRMING THE ADDITION MADE BY A. 0. OF RS. 2 28 000/ - BEING DIFFERENCE BETWEEN VALUATION MADE BY DVO AND THE INVESTMENT RECORDED IN THE BOOKS OF ACC OUNT IN THE IMMOVABLE PROPERTY. THE VALUATION MADE BY DVO RESORTING TO PROVISIONS OF S. 142A(1) IS ONLY BASED ON ESTIMATED VALUATION. IT CANNOT BE CALLED ACTUAL UNDISCLOSED INCOME FOR ASSESSMENT U/S 153A(B) OF THE ACT. THE ADDITION BE DELETED. 3. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW THE ASSESSMENT FOR THE YEAR UNDER APPEAL SHOULD HAVE BEEN COMPLETED UNDER S. 153A(B) AND NOT UNDER S. 143(3) ONLY CONSIDERING THE SEARCH ACTION CONDUCTED ON 18 - 4 - 2007 AND 20 - 4 - 2007 WHICH FALLS IN A. Y. 2008 - 09. IN VIEW OF THE LEGAL POSITION THE ASSESSMENT HAVING NOT MADE UNDER S. 153A IS BAD IN LAW AND WITHOUT JURISDICTION. IT BE QUASHED. 4. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW THE LD. CIT(A) - KOLHAPUR WAS NOT JUSTIFIED IN REJECTING THE CLAIM OF THE APP ELLANT REGARDING LEVY OF INTEREST UNDER S. 234B AND 234C OF THE 3 ITA NO. 1134 1135 1136 1137 1138 & 1139/PN/2012 ACT ESPECIALLY IN VIEW OF THE FACT THAT THE CASH SEIZED DURING THE COURSE OF SEARCH ACTION WAS REQUIRED TO BE ADJUSTED AGAINST ADVANCE TAX PAYABLE IN VIEW OF S. 132B OF THE ACT. THE LEVY OF IN TEREST U/S 234B AND 234C BE REDUCED ACCORDINGLY. 3 . SO FAR AS THE GROUND NO. 3 IS CONCERNED THE CONTENTION OF THE ASSESSEE IS THAT THE ASSESSMENT FOR A.Y. 2008 - 09 SHOULD ALSO HAVE BEEN COMPLETED U/S. 153A(B) OF THE ACT AND NOT U/S. 143(3) OF THE ACT. IN SUPPORT OF THE SAID PROPOSITION THE ASSESSEE RELIED ON THE DECISION OF THE HON'BLE HIGH COURT OF KERALA IN THE CASE OF DR. K.M. MAHABOOB VS. DCIT & A NR. (2012) 76 DTR (KER) 90 AS WELL AS THE DECISION IN THE CASE OF DCIT CIRCLE - 1(1) UJJAIN VS. SUSHIL KU MAR JAIN (2010) 127 ITD 264 (INDORE). IN THIS CASE A SEARCH AND SEIZURE ACTION U/S. 132(1) OF THE ACT HAS BEEN CARRIED OUT ON 18 - 04 - 2007 AND WHICH WAS CONCLUDED ON 20 - 04 - 2007. IN RESPECT OF A.Y. 2008 - 09 ASSESSMENT OF THE ASSESSEE HAS BEEN COMPLETED U/S. 143(3) . 4. F ROM THE ASSESSMENT ORDER I T IS SEEN THAT NO NOTICE U/S. 153A FOR FILING OF THE RETURN OF INCOME HAS BEEN ISSUED TO THE ASSESSEE. THE IDENTICAL ISSUE HAS BEEN CONSIDERED BY THE TRIBUNAL IN THE CASE OF SHREE AMRITSINGH J. BINDRA & ORS. VS. I NCOME TAX OFFICER (CENTRAL) NASHIK BEING ITA NOS . 329 TO 332/PN/2012 ITA NOS. 377 & 378/PN/2012 ITA NOS. 379 & 380/PN/2012 ITA NOS. 381 TO 383/PN/2012 ITA NOS. 1050 & 1051/PN/2012 ITA NO. 1052/PN/2012 ITA NO. 29/PN/2013 ITA NO. 30/PN/2013 ITA NO. 31/PN/2013 ITA NO. 33/PN/2013 ITA NO. 868/PN/2013 AND ITA NO. 872/PN/2013. IN THE SAID CASE THE TRIBUNAL HAS CONSIDERED THE DECISION OF THE HON'BLE HIGH COURT OF KERALA IN THE CASE OF DR. K.M. MAHBOOB VS. DCIT & ANR. (SUPRA) AND HAS HELD AS UNDER: 21. AS MENTIONED HERE - IN - ABOVE THERE WAS A SEARCH AND SEIZURE ACTION AGAINST THE BINDRA GROUP U/S. 132(1) OF THE ACT ON 15 - 03 - 2007. IN CONSEQUENCE OF SEARCH AND SEIZURE OPERATION THE ASSESSMENTS UPTO 4 ITA NO. 1134 1135 1136 1137 1138 & 1139/PN/2012 THE A.Y. 2006 - 07 HAVE BEEN COMPLETED U/S. 153A OR 153C R.W .S. SEC. 143(3) OF THE ACT SAVE THE A.Y. 2007 - 08 FOR WHICH YEAR THE ASSESSMENTS HAVE BEEN COMPLETED U/S. 143(3) OF THE INCOME - TAX ACT. THE LEARNED COUNSEL SUBMITS THAT THE ASSESSMENTS COMPLETED FOR THE A.Y. 2007 - 08 ARE WITHOUT JURISDICTION AND VOID AB INI TIO AS THOSE ASSESSMENTS OUGHT TO HAVE BEEN MADE U/S. 153A R.W.S. 143(3) OF THE ACT. HE HAS PLACED HIS RELIANCE ON THE FOLLOWING DECISIONS: 1. DR. K.M. MAHABOOBVS. DCIT &ANR. (2012) 76 DTR (KER) 90. 2. M/S. BAHUBALINEMINATHMUTTIN VS. ACIT CENTRAL CIRCLE - I BELGAUM ITA NOS. 161 &165/PN/2010 ORDER DATED 08 - 07 - 2011. 3. DR.MANSUKHKANJIBHAI SHAH VS. ACIT (2010) 36 (II) ITCL 62 (AHD) ORDER DATED 21 - 05 - 2010. 4. DCIT CIRCLE - 1(1) UJJAIN VS. SUSHIL KUMAR JAIN (2010) 127 ITD 264 (INDORE). 5. M/S. GIRIDHAR& SONS VS. JCIT (OSD) CENTRAL CIRCLE KOLHAPUR ITA NO. 1358/PN/2007 ORDER DATED 30 - 08 - 2011. WE HAVE ALSO HEARD THE LD. DR. 22. IN THE CASE OF DR. K.M. MAHABOOB (SUPRA) BATCH OF WRIT PETITIONS WERE FILED WITH PRAYER TO QUASH THE ASSESSMENT ORDERS PASSED IN CONSEQUENCE OF THE SEARCH AND SEIZURE ACTION (U/S. 144 R.W.S. SEC. 153A AND 153C OF THE ACT) FOR THE A.YS. 2003 - 04 TO 2009 - 10. IT WAS THE CASE OF THE ASSESSEE - PETITIONER THAT NOTICES U/S. 153A WERE ISSUED ONLY FOR THE A.YS. 2003 - 04 TO 2008 - 09 AND THERE W AS NO NOTICE FOR THE A.Y. 2009 - 10. IT WAS ALSO STATED THAT THE SIX ASSESSMENT YEARS IN RESPECT OF WHICH ASSESSMENT COULD HAVE BEEN MADE U/S. 153A WERE THE A.YS. 2003 - 04 TO 2008 - 09 AND THAT THE ASSESSMENT FOR THE A.Y. 2009 - 10 WAS ALSO MADE U/S. 144 R.W.S. 153C OF THE ACT WHICH WAS PATENTLY ILLEGAL (PARA NO. 13 OF THE JUDGMENT). THE DEPARTMENT RESISTED THE SAID STATEMENT OF THE ASSESSEE BY FILING THE AFFIDAVIT IN REPLY WHICH IS AS UNDER: 14. IN VIEW OF THE AFORESAID CONTENTIONS RAISED AN ADDITIONAL STATE MENT DT. 14TH MARCH 2011 HAS BEEN FILED ON BEHALF OF THE RESPONDENT. INSOFAR AS THE VALIDITY OF THE ASSESSMENT FOR THE YEAR 2009 - 10 IS CONCERNED IN THE ADDITIONAL STATEMENT IT HAS BEEN STATED THUS : '2. IN PARA NO. 3 OF THE REPLY - AFFIDAVIT THE PETITIONER IS TRYING TO ESTABLISH THAT THE ASSESSMENT MADE FOR ASST. YR. 2009 - 10 IS ILLEGAL 5 ITA NO. 1134 1135 1136 1137 1138 & 1139/PN/2012 SINCE THE ASSESSMENT SHOULD HAVE BEEN MADE ONLY FROM ASST. YR. 2003 - 04 TO ASST. YR. 2008 - 09 I.E. FOX SIX ASSESSMENT YEARS ONLY AND NOT FOR ASST. YR. 2009 - 10. THIS ARGUMENT IS WRONG FOR THE FOLLOWING REASONS: (A) AS PER THE PROVISIONS OF THE ACT THE ASSESSMENT IN SUCH CASES SHALL BE MADE FOR SIX ASSESSMENT YEARS IMMEDIATELY PRECEDING THE ASSESSMENT YEAR RELEVANT TO THE PREVIOUS YEAR IN WHICH THE SEARCH IS CONDUCTED OR REQUISIT ION IS MADE. THE RELEVANT SEARCH IN THIS CASE WAS CONDUCTED IN THE FINANCIAL YEAR 2008 - 09 WHICH IS RELEVANT TO THE ASST. YR. 2009 - 10. HENCE THE SIX ASSESSMENT YEARS WILL BE 2003 - 04 2004 - 05 2005 - 06 2006 - 07 2007 - 08 AND 2008 - 09. ACCORDINGLY NOTICES UNDER S. 153A R/W S. 153C WERE ISSUED FOR THESE YEARS. (B) AS PER THE EXISTING INSTRUCTIONS ALL SEARCH AND SEIZURE CASES HAVE TO BE COMPULSORILY SCRUTINIZED FOR THE RELEVANT ASSESSMENT YEAR. THAT MEANS THE ASSESSEE'S ASSESSMENT FOR THE ASST. YR. 2009 - 10 HAD TO BE COMPLETED UNDER S. 143(3). SINCE THE ASSESSEE HAD NOT FILED HIS RETURN A NOTICE UNDER S. 142(1) WAS ISSUED CALLING FOR HIS RETURN. THE ASSESSEE DID NOT RESPOND TO THIS NOTICE NOR DID HE CO - OPERATE IN COMPLETING THE ASSESSMENT WHICH WAS THEREFORE COMPLE TED UNDER S. 144. NO NOTICE UNDER S. 153A WAS ISSUED FOR THE ASST. YR. 2009 - 10. FOR THESE REASONS THE ASSESSEE'S OBSERVATION IS AGAINST FACTS.' 23. IN SUM AND SUBSTANCE THE CASE OF THE REVENUE WAS THAT FOR THE A.Y. 2009 - 10 THE ASSESSMENT HAD TO BE COMPL ETED U/S. 143(3) OF THE ACT AND THE ASSESSEE WAS ALSO ISSUED A NOTICE U/S. 142(1) CALLING FOR RETURN FOR THE SAID YEAR. FINALLY THE ASSESSMENT WAS COMPLETED U/S. 144 OF THE ACT AND NO NOTICE WAS ISSUED U/S. 153A FOR THE A.Y. 2009 - 10. THE HON'BLE HIGH COU RT FINALLY DISMISSED THE WRIT PETITION. IN OUR OPINION DECISION RELIED ON BY LD. COUNSEL IN DR.K.M. MAHABOOB (SUPRA) IN FACT SUPPORT CASE OF THE REVENUE. 24. THE TRIBUNAL HAS OCCASION TO CONSIDER THE IDENTICAL ISSUE IN THE CASE OF AKBANISALIM ABDUL GAF FARVS. DCIT CENTRAL CIRCLE KOLHAPUR ITA NO. 873/PN/2008 ORDER DATED 31 - 08 - 2012. IN THE SAID CASE THE ASSESSMENT WAS COMPLETED U/S. 143(3) FOR THE A.Y. 2005 - 06 AND THE ASSESSEE TOOK THE STAND THAT THE ASSESSING OFFICER WAS LEGALLY BOUND TO PASS THE ASS ESSMENT ORDER U/S. 153A/153B OF 6 ITA NO. 1134 1135 1136 1137 1138 & 1139/PN/2012 THE ACT AS THERE WAS A SEARCH AND SEIZURE ACTION AGAINST THE ASSESSEE U/S. 132 OF THE ACT ON 02 - 02 - 2005. IN THE SAID DECISION THIS TRIBUNAL HAS CONSIDERED THE DECISIONS RELIED ON BY THE LEARNED COUNSEL IN THE FOLLOWING CASE S (1) SUSHIL KUMAR JAIN (SUPRA) (2) M/S. BAHUBALINEMINATHMUTTIN (SUPRA) AND (3) DR.MANSUKHKANJIBHAI SHAH (SUPRA). THE OPERATIVE PART OF THE DECISION IS AS UNDER: 8. WE FIND THAT THE CONTENTION OF THE LD. COUNSEL IS WELL SUPPORTED BY THE DECISION IN THE CASE OF SHRISUSHIL KUMAR JAIN (SUPRA) AS WELL AS M/S. BAHUBALINEMINATHMUTTIN (SUPRA). IN THE CASE OF SHRISUSHIL KUMAR JAIN WHICH IS THE LEAD CASE AND HAS HELD BY THE CO - ORDINATE BENCH EVEN IN RESPECT OF THE ASSESSMENT RELEVANT TO THE PREVIOUS YEAR IN WHICH THE WARRANT OF AUTHORIZATION IS EXECUTED SHOULD ALSO TO BE MADE IN COMPLIANCE WITH THE PROVISIONS OF SEC. 153A AND 153B. 9. IN THE ASSESSMENT ORDER SECTION 143(3) IS MENTIONED CAN IT BE SAID THAT THE ASSESSEES ASSESSMENT IS NOT IN CONFORMITY AS CONTEMPLATED IN THE PROVISIONS 153A 153B AND 153C ? SO FAR AS THE TIME LIMIT FOR ASSESSMENT IS CONCERNED IT IS PROVIDED IN SEC. 153B(1)(B). THE LD COUNSEL FAIRLY ADMITTED THAT THE ASSESSMENT IS COMPLETED AS PER THE TIME LIMIT AS POVIDED IN THE SAID P ROVISO I.E. WITHIN THE PERIOD OF 2 YEARS FROM THE END OF F.Y. 2004 - 05 AS ADMITTEDLY THE ASSESSMENT IS COMPLETED ON 29.12.2006. HENCE THE A.O HAS MADE THE COMPLIANCE OF THE MANDATORY CONDITION IN COMPLETING THE ASSESSMENT AS PROVIDED U/S. 153B(1)(B) OF THE ACT. 10. THEN NEXT QUESTION WHICH ARISES FOR CONSIDERATION IS WHETHER THE A.O HAS CONSIDERED THE SEIZED MATERIAL FOUND DURING THE COURSE OF SEARCH FOR FRAMING THE ASSESSMENT OF THE ASSESSEE OR NOT. WE FIND THAT THE A.O HAS CONSIDERED THE SEIZED MATER IAL FOUND DURING THE COURSE OF SEARCH AND THE ASSESSMENT IS NOT MERELY BASED ON THE BOOKS OF ACCOUNT AND RECORD PRODUCED BY THE ASSESSEE DURING THE COURSE OF THE ASSESSMENT PROCEEDINGS. WHAT IS TO BE SEEN IN THE SUBSTANCE OF THE ASSESSMENT ORDER AND NOT M ERELY FORMAT OF AN ORDER. IN OUR OPINION MERELY BECAUSE SEC. 143(3) IS TYPED BY THE A.O BUT OTHERWISE THE SUBSTANCE OF THE ASSESSMENT IS IN CONFORMITY THAT THE ASSESSMENT AS CONTEMPLATED U/S 153A & 153B THE ASSESSMENT ORDER CANNOT BE SAID TO BE UNLAWF UL. WE THEREFORE HOLD THAT THE ASSESSMENT ORDER AS IT IS BASED ON THE SEIZED MATERIAL AS WELL AS AS PER POST SEARCH ENQUIRY THERE IS NO INFIRMITY 7 ITA NO. 1134 1135 1136 1137 1138 & 1139/PN/2012 IN THE ASSESSMENT ORDER. WE ACCORDINGLY DISMISS THE ADDITIONAL GROUND RAISED BY THE ASSESSEE. 25. ON PERUSAL OF THE IMPUGNED ASSESSMENT ORDERS IT IS SEEN THAT THE ASSESSING OFFICER HAS CONSIDERED THE INCOME OFFERED BY THE ASSESSEE DURING THE COURSE OF SEARCH AND SEIZURE PROCEEDINGS AS WELL AS THE CASH AND JEWELLERY FOUND AND SEIZED. MOREOVER SAID A SSESSMENT HAS BEEN COMPLETED WITHIN TIME SPECIFIED U/S. 153B(1)(B) I.E. WITHIN PERIOD OF TWO YEARS FROM END OF FINANCIAL YEAR IN WHICH SEARCH HAS TAKEN PLACE. HENCE OTHERWISE ALSO THERE IS COMPLIANCE OF THE MANDATORY CONDITION IN COMPLETING THE ASSESSMEN T AS PROVIDE U/S. 153B(1)(B) OF THE ACT. WE ACCORDINGLY HOLD THAT THERE IS NO MERIT IN THE GROUNDS TAKEN BY THE ASSESSEE IN A.Y. 2007 - 08 AND RESPECTIVE GROUND IS DISMISSED 5. IN THIS CASE ALSO THE ASSESSMENT OF THE ASSESSEE HAS BEEN COMPLETED WITHIN TH E TIME LIMIT PRESCRIBED U/S. 153B(1)(B) OF THE ACT HENCE THE ASSESSEE SHOULD NOT HAVE ANY GRIEVANCE. MOREOVER THIS ISSUE STANDS COVERED AGAINST THE ASSESSEE BY THE DECISION OF THIS TRIBUNAL IN THE CASE OF BINDRA GROUP (SUPRA). WE THEREFORE FOLLOWING THE DECISION IN THE CASE OF BINDRA GROUP (SUPRA) DISMISS THE GROUND NO. 3. 6 . IN THE GROUND N O . 1 THE ASSESSEE HAS RAISED GRIEVANCE FOR CONFIRMING THE ADDITION MADE BY THE ASSESSING OFFICER OF RS.4 50 000/ - TOWARDS UNACCOUNTED SALES. THE ASSESSING OFFI CER HAS OBSERVED THAT THE ASSESSEE IS A PROP. OF M /S. SAHARA WINE AND DOING THE TRADING OF WINE ON RETAIL BASIS. DURING THE COURSE OF SURVEY ACTION (OR SEARCH ACTION ? ) AT THE BUSINESS PREMISES OF THE ASSESSEE CERTAIN LOOSE PAPERS WERE FOUND WHICH WERE I MPOUNDED . A S PER THE SEIZED LOOSE PAPERS/ NOTE BOOK ALL SALES WERE NOT RECORDED IN THE REGULAR BOOKS OF ACCOUNT AND SAID FACTUAL POSITION WAS ALSO ADMITTED BY THE ASSESSEE. THE ASSESSEE CONTENDED THAT THE INCOME GENERATED FROM UNACCOUNTED SALE WAS ALREADY OFFERED IN THE FORM OF CASH IN HAND AT RS.4 75 000/ - AND THE ASSESSING OFFICER ALSO ACCEPTED THE CONTENTION OF THE ASSESSEE AND GAVE THE BENEFIT OF THE 8 ITA NO. 1134 1135 1136 1137 1138 & 1139/PN/2012 TELESCOPI NG . IT IS FURTHER OBSERVED THAT THE IMPOUNDED NOTE BOOK SHOWS THE OUTSTANDING OPENING AMOUNT OF THE DAY SALES MADE ON THE DAY AND THE PAYMENT RECEIVED FROM THE DEBTORS TO WHOM SAID SALE WAS MADE . T HE FIGURES WERE AVAILABLE FOR THE PERIOD 01 - 04 - 2007 TO 17 - 04 - 2007. THE MAXIMUM OUTSTANDING AMOUNT RECEIVABLE FROM SUCH PARTIES WAS WORKED OUT ON THE BASIS OF THE SEIZED NOTE BOOK AND THE ASSESSING OFFICER CONSIDERED THE PEAK OF THE CREDIT ON 03 - 04 - 2007 WHICH WAS RS.3 62 263/ - . THE ASSESSING OFFICER TREATED THE SAID AMOUNT AS ASSESSEES MINIMUM INVESTMENT AND MADE THE ADDITION OF RS. 4 50 000/ - AS UNEXP LAINED SEED CAPITAL FOR DOING THE UNACCOUNTED SALES. THE ASSESSEE CARRIED THE ISSUE BEFORE THE LD. CIT(A) BUT WITHOUT SUCCESS. 7 . WE HAVE HEARD THE PARTIES. THE CONTENTION OF THE ASSESSEE IS THAT THE ASSESSEE SELL THE GOODS TO THE CUSTOMERS KNOWN TO HIM PERSONALLY AND HAS BUSINESS RELATION BY MAKING TEMPORARY NOTING ON PRODUCTION OF PERMIT ON WHOLESALE BASIS @ 9 BOTTLES PER PERMIT AND COLLECTS THE AMOUNT BEFORE CLOSING OF THE BUSINESS HOURS . THE CONTENTION OF THE ASSESSEE IS THAT NOTING IN A DIARY IS FO R REMEMBRANCE ONLY WHICH ARE REMAIN ED TO BE CANCELL ED AND IT IS NOT A CREDIT SALE. IN SUM AND SUBSTANCE THE CONTENTION OF THE ASSESSEE IS THAT THERE IS NO CREDIT SALE AT ALL AS DURING THE DAY ITSELF THE AMOUNT IS COLLECTED. WE HAVE PERUSED THE REASONS GIVEN BY THE LD. CIT(A) . WE FIND THAT EXCEPT THE ESTIMATE NOTHING IS THERE ON RECORD TO SUGGEST THAT THE ASSESSEE HAS INVESTED RS.4 50 00 0 / - AS SEED CAPITAL. AT THE SAME TIME UNACCOUNTED INVESTMENT CANNOT BE RULED OUT ALSO. WE THEREFORE SUSTAIN THE AD DITION TO RS.1 00 000/ - AND ACCORDINGLY THE ASSESSEE GET S THE PARTIAL RELIEF AND THE GROUND NO. 1 IS PARTLY ALLOWED. 8 . THE GROUND NO. 2 IN RESPECT OF THE ADDITION ON THE BASIS OF THE DVO REPORT. IN THIS CASE THE BOOKS OF ACCOUNT OF THE ASSESSEE HAVE NO T BEEN REJECTED. THE ASSESSING OFFICER MADE ADDITION OF RS.2 28 000/ - ON 9 ITA NO. 1134 1135 1136 1137 1138 & 1139/PN/2012 THE BASIS OF THE DIFFERENCE IN VALUATION MADE BY DVO AND PURCHASE CONSIDERATION IN RESPECT OF THE PROPERTY AT 1325/4 E WARD UDYAM NAGAR KOLHAPUR. WE FIND THAT THIS ISSUE STANDS C OVERED IN FAVOUR OF THE ASSESSEE BY THE DECISION OF THE HON'BLE SUPREME COURT IN THE CASE OF SARGAM CINEMA VS. CIT 328 ITR 513 AS WELL AS THE DECISION OF THE HON'BLE HIGH COURT OF GUJARAT IN THE CASE OF GOODLUCK AUTOMOBILES (P.) LTD. VS. ACIT (2012) 26 TAX MANN. COM 254 (GUJ.). WE THEREFORE ALLOW THE GROUND NO. 2 AND DELET E THE ADDITION OF RS.2 28 000/ - . A CCORDINGLY THE GROUND NO. 2 IS ALLOWED. 9 . IN THE GROUND NO. 4 THE GRIEVANCE OF THE ASSESSEE IS THAT THE CASH SEIZED DURING THE COURSE OF SEARCH SH OULD HAVE BEEN ADJUSTED AGAINST THE ADVANCE TAX PAYABLE IN VIEW OF SEC. 132B OF THE ACT AND NO INTEREST SHOULD HAVE BEEN LEVIED U/S. 234B AND 234C OF THE ACT. 10 . WE HAVE HEARD THE PARTIES. THE LEARNED COUNSEL FAIRLY ADMITTED THAT NO SPECIFIC REQUEST W AS MADE BY THE ASSESSEE FOR ADJUSTING THE SEIZED CASH. IN OUR OPINION IF THE ASSESSEE HAS NOT REQUESTED THE DEPARTMENT FOR ADJUSTMENT OF THE SEIZED CASH IN SUCH SITUATION THE ASSESSEE CANNOT ESCAPE FROM THE LEVY OF INTEREST U/S. 234B AND 234C OF THE ACT . WE FIND NO MERIT IN THE GROUND NO. 4 AND THE SAME IS DISMISS ED . IN THE RESULT THE ASSESSEES APPEAL IS PARTLY ALLOWED. ITA NO. 113 5 /PN/2012 SOU. PREETI UDDHAV MEGHANI (A.Y. 200 7 - 08 ) 1 1 . IN THIS CASE THE ASSESSEE HAS TAKEN THE FOLLOWING TWO GROUNDS: 1. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW THE LD. CIT(A) WAS NOT JUSTIFIED IN CONFIRMING THE ADDITION MADE BY THE A.O. OF RS.15 000/ - . THE SAME BE DELETED. 2. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW THE LD. CIT(A) - KOLHAPUR WAS NOT JUSTIFIED IN REJECTING THE CLAIM OF THE APPELLANT REGARDING LEVY OF INTEREST UNDER S. 234B AND 234C OF THE ACT ESPECIALLY IN VIEW OF THE FACT THAT THE CASH SEIZED DURING THE COURSE OF SEARCH ACTION WAS REQUIRED TO BE ADJUSTED AGAINST 10 ITA NO. 1134 1135 1136 1137 1138 & 1139/PN/2012 ADVANCE TAX PAYABLE I N VIEW OF S. 132B OF THE ACT. THE LEVY OF INTEREST U/S. 234B AND 234C BE REDUCED ACCORDINGLY. 1 2 . THE LEARNED COUNSEL SUBMITS THAT THE ASSESSEE IS NOT PRESSING THE GROUND NO.1 . A S GROUND NO. 1 IS NOT PRESSED THE SAME IS DISMISS ED AS NOT PRESSED . 1 3 . NOW THE ONLY GROUND WHICH REMAINED FOR ADJUDICATION IS GROUND NO. 2 WHICH READS AS UNDER: 1. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW THE LD. CIT(A) - KOLHAPUR WAS NOT JUSTIFIED IN REJECTING THE CLAIM OF THE APPELLANT REGARDING LEVY OF INTEREST UNDER S. 234B AND 234C OF THE ACT ESPECIALLY IN VIEW OF THE FACT THAT THE CASH SEIZED DURING THE COURSE OF SEARCH ACTION WAS REQUIRED TO BE ADJUSTED AGAINST ADVANCE TAX PAYABLE IN VIEW OF S. 132B OF THE ACT. THE LEVY OF INTEREST U/S. 234B AND 234C BE REDU CED ACCORDINGLY. 1 4 . THE ISSUE IS REGARDING NO N ADJUSTMENT OF THE SEIZED CASH AGAINST THE ADVANCE TAX PAYMENT. IN THIS CASE ALSO WE FIND THAT NO REQUEST WAS MADE BY THE ASSESSEE FOR ADJUSTING THE SEIZED CASH AGAINST THE FUTURE DEMAND OR FOR PAYMENT OF T HE ADVANCE TAX . T HE IDENTICAL ISSUE HAS BEEN DECIDED BY US IN ITA NO. 1134/PN/2012 ( SOU. DIVYA JAYRAM MEGHANI ) . F OLLOWING THE REASONS GIVEN IN THE SAID CASE W E DISMISS THE GROUND NO. 2. IN THE RESULT THE ASSESSEES APPEAL IS DISMISSED. ITA NO. 113 6 /P N/2012 SOU. PREETI UDDHAV MEGHANI (A.Y. 200 8 - 09 ) 1 5 . IN THIS APPEAL THE ASSESSEE HAS TAKEN THE FOLLOWING GROUNDS: 1. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AN D IN LAW THE LD. CIT(A) KOLHAPUR WAS NOT JUSTIFIED IN CONFIRMING THE ADDITION MADE BY A. 0. OF RS . 92 000/ - BEING DIFFERENCE BETWEEN VALUATION MADE BY DVO AND THE INVESTMENT RECORDED IN THE BOOKS OF ACCOUNT IN THE IMMOVABLE PROPERTY. THE VALUATION MADE BY DVO RESORTING TO PROVISIONS OF S. 142A (1) IS ONLY BASED ON ESTIMATED VALUATION. IT CANNOT BE CA LLED ACTUAL UNDISCLOSED INCOME FOR ASSESSMENT U/S 153A(B) OF THE ACT. THE ADDITION BE DELETED. 11 ITA NO. 1134 1135 1136 1137 1138 & 1139/PN/2012 2. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW THE LD. CIT(A) WAS NOT JUSTIFIED IN CONFIRMING THE ADDITION MADE BY THE A. 0. OF RS . 15 000/ - . THE SAME B E DELETED. 3. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW THE ASSESSMENT FOR THE YEAR UNDER APPEAL SHOULD HAVE BEEN COMPLETED UNDER S 153A(B) AND NOT UNDER S. 143(3) ONLY CONSIDERING THE SEARCH ACTION CONDUCTED ON 18 - 4 - 2007 AND 20 - 4 - 2007 WHICH FALLS IN A. Y. 2008 - 09. IN VIEW OF THE LEGAL POSITION THE ASSESSMENT HAVING NOT MADE UNDER S. 153A IS BAD IN LAW AND WITHOUT JURISDICTION. IT BE QUASHED. 4. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW THE LD. CIT(A) - KOLHAPUR WAS NOT JUSTIFIED IN REJECTIN G THE CLAIM OF THE APPELLANT REGARDING LEVY OF INTEREST UNDER S. 234B/234C OF THE ACT ESPECIALLY IN VIEW OF THE FACT THAT THE CASH SEIZED DURING THE COURSE OF SEARCH ACTION WAS REQUIRED TO BE ADJUSTED AGAINST ADVANCE TAX PAYABLE IN VIEW OF S. 132B OF THE A CT. THE LEVY OF INTEREST U/S 234B AND 234C BE REDUCED ACCORDINGLY. 1 6 . SO FAR AS THE GROUND NO. 1 IS CONCERNED THE GRIEVANCE OF THE ASSESSEE IS THAT THE ADDITION OF RS. 92 000/ - IS MADE ON THE BASIS OF THE DVO REPORT. AS A REFERENCE WAS MADE U/S. 1 42A OF THE ACT THE DVO REPORT IS ONLY AN ESTIMATION AS HELD IN THE CASE OF GOODLUCK AUTOMOBILES (P.) LTD. VS. ACIT (SUPRA). MOREOVER THIS ISSUE IS SQUARELY COVERED IN FAVOUR OF THE ASSESSEE BY THE DECISION OF THE HON'BLE SUPREME COURT IN THE CASE OF SARGAM CINE MA VS. CIT (SUPRA) AND BY THE DECISION OF THE HON'BLE HIGH COURT OF GUJARAT IN THE CASE OF GOODLUCK AUTOMOBILES (P.) LTD. VS. ACIT (SUPRA). WE THEREFORE ALLOW THE GROUND NO. 1 R ESPECTFULLY FOLLOWING THE PRINCIPLES LAID DOWN IN THE ABOVE REFERRED DECISI ON S AND DELETE THE ADDITION OF RS.92 000/ - . 1 7 . GROUND NO. 2 IS NOT PRESSED HENCE THE GROUND NO. 2 IS DISMISS ED AS NOT PRESSED. 1 8 . SO FAR AS THE GROUND NO. 3 IS CONCERNED THE GRIEVANCE OF THE ASSESSEE IS THAT IN THIS YEAR I.E. A.Y. 2008 - 09 AS THE SE ARCH ACTION WAS 12 ITA NO. 1134 1135 1136 1137 1138 & 1139/PN/2012 CONDUCTED ON 18 - 04 - 2007 AND CONCLUDE D ON 20 - 04 - 2007 THE ASSESSMENT SHOULD HAVE BEEN MADE U/S. 153A(B) AND NOT U/S. 143(3) . T HE IDENTICAL ISSUE HAS BEEN DECIDED BY US IN THIS ORDER IN ITA NO. 1134/PN/2012 I.E. SOU. DIVYA JAYRAM MEGHANI VS. DCIT CENTRAL CIRCLE KOLHAPUR . F OLLOWING REASONS GIVEN IN THE SAID CASE WE DISMISS THE GROUND NO. 3. 1 9 . SO FAR AS THE GROUND NO. 4 IS CONCERNED THE GRIEVANCE OF THE ASSESSEE IS THAT THE SEIZED CASH WAS NOT ADJUSTED TOWARDS THE PAYMENT OF THE ADVANCE TAX. ADMITTEDLY NO SPECIFIC REQUEST WAS MADE BY THE ASSESSEE. THE IDENTICAL ISSUE HAS BEEN DECIDED AGAINST THE ASSESSEE IN THE A.Y. 2007 - 08 FOLLOWING THE REASONS GIVEN IN A.Y. 2007 - 08 . I N THIS YEAR ALSO THE GROUND NO. 4 IS DISMISS ED . IN THE RESULT TH E ASSESSEES APPEAL FOR THE A.Y. 2007 - 08 IS DISMISSED AND A.Y. 2008 - 09 IS PARTLY ALLOWED. ITA NO. 113 7 /PN/12 SHRI JAYRAM VARADMAL MEGHANI (A.Y. 200 7 - 08 ) 20. IN THIS APPEAL THE ASSESSEE HAS TAKEN THE FOLLOWING GROUNDS: 1. ON THE FACTS AND CIRCUMSTAN CES OF THE CASE AND IN LAW THE LD. CIT(A) - KOLHAPUR WAS NOT JUSTIFIED IN ESTIMATING HOUSE - HOLD EXPENSES OF THE APPELLANT AT RS.66 120/ - IN THE ABSENCE OF ANY SEIZED MATERIALS FOUND IN THE SEARCH AS IT IS SINE - QUA - NON FOR FRAMING ASSESSMENTS UNDER S. 153A(B) OF THE ACT. THE ESTIMATED CONFIRMED ADDITION BE QUASHED. 2. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW THE LD. OT(A) KOLHAPUR WAS NOT JUSTIFIED IN CONFIRMING THE ADDITION MADE BY A. 0. OF RS. 2 10 000/ - BEING DIFFERENCE BETWEEN VALUATION MADE BY DVO AND THE INVESTMENT RECORDED IN THE BOOKS OF ACCOUNT IN THE IMMOVABLE PROPERTY. THE VALUATION MADE BY DVO RESORTING TO PROVISIONS OF S. 142A(1) IS ONLY BASED ON ESTIMATED VALUATION. IT CANNOT BE CALLED ACTUAL UNDISCLOSED INCOME FOR ASSESSMENT U/S 153A( B) OF THE ACT. THE ADDITION BE DELETED. 13 ITA NO. 1134 1135 1136 1137 1138 & 1139/PN/2012 3. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW THE LD. CIT(A) - KOLHAPUR WAS NOT JUSTIFIED IN REJECTING THE CLAIM OF THE APPELLANT REGARDING LEVY OF INTEREST UNDER S. 234B/234C OF THE ACT ESPECIALLY IN VIEW OF T HE FACT THAT THE CASH SEIZED DURING THE COURSE OF SEARCH ACTION WAS REQUIRED TO BE ADJUSTED AGAINST ADVANCE TAX PAYABLE IN VIEW OF S. 132B OF THE ACT. THE LEVY OF INTEREST U/S 234B AND 234C BE REDUCED ACCORDINGLY. 21. SO FAR AS GROUND NO. 1 IS IN RESPECT OF THE ADDITION OF RS.66 120/ - TOWARDS THE LO W HOUSE HOLD EXPENDITURE. WE HAVE HEARD THE PARTIES AND PERUSED THE RECORD. THE ASSESSING OFFICER HAS NOTED THAT THE ASSESSEE MAINTAINING TWO FAMILIES CONSISTING OF NINE MEMBERS OF HIMSELF AND HIS BROTHER. THE ASSESSING OFFICER HAS ALSO GIVEN THE CHAR T OF WITHDRAWAL ASSESSMENT YEAR - WISE OF ALL THE MEMBERS OF THE FAMILY. THE ASSESSING OFFICER FINALLY WORKED OUT THE YEARLY EXPENDITURE AND MADE THE ADDITION OF RS.1 92 000/ - IN THE A.Y. 2007 - 08. THE ASSESSEE C ARRIED THE ISSUE BEFORE THE LD. CIT(A) WHO GAVE PARTIAL RELIEF. AS NOTED BY THE LD. CIT(A) THE ASSESSING OFFICER HAS PASSED THE ORDER U/S. 154 ON 03 - 02 - 2010 AND REDUCED THE ADDITION A S THERE WAS A MISTAKE IN THE TABULATION. THE LD. CIT(A) GAVE THE RELI EF BY 50% REDUCING THE ADDITION. IT IS TRUE THAT THE ADDITION ON ACCOUNT OF SHORT HOUSE HOLD EXPENDITURE IS NOT BASE D ON ANY CONCRETE MATERIAL BUT THE REASONS GIVEN BY THE LD. CIT(A) ARE QUITE ELABORATE TO SUPPORT HIS ORDER AND WE ACCORDINGLY SUSTAIN TH E ADDITION. WE FIND NO MERIT IN GRO UND NO. 1 TAKEN BY THE ASSESSEE. A CCORDINGLY SAME IS DISMISSED. 22. SO FAR AS GROUND NO. 2 IS CONCERNED IT IS IN RESPECT OF ADDITION OF RS.2 10 000/ - MADE ON THE BASIS OF DVO REPORT. THE IDENTICAL ISSUE HAS BEEN CON SIDERED IN THIS CASE FOR A.Y. 2008 - 09 IN ITA NO. 1136/PN/2012 SOU. PREETI UDDHAV MEGHANI . F OLLOWING THE REASONS GIVEN THEREIN FOR DELETING THE ADDITION I N THIS YEAR ALSO WE DELETE THE ADDITION AND ALLOW GROUND NO. 2. 14 ITA NO. 1134 1135 1136 1137 1138 & 1139/PN/2012 23 . SO FAR AS THE GROUND NO. 3 IS CONCERNED THE IDENTICAL ISSUE HAS BEEN DECIDED IN THE CASE OF ANOTHER FAMILY MEMBER IN A.Y. 2008 - 09 SOU. PREETI UDDHAV MEGHANI BEING ITA NO. ITA NO. 1136/PN/2012 . F OLLOWING THE REASONS ON THIS ISSUE W E DISMISS THE GROUND NO. 3. IN THE RESULT THE ASSE SSEES APPEAL FOR THE A.Y. 2007 - 08 IS PARTLY ALLOWED. ITA NO. 113 8 /PN/12 SHRI JAYRAM VARADMAL MEGHANI (A.Y. 200 8 - 09 ) 24 . IN THIS APPEAL THE ASSESSEE HAS TAKEN THE FOLLOWING GROUNDS: 1. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW THE LD. CIT(A) W AS NOT JUSTIFIED IN CONFIRMING THE ADDITION OF RS.39 000/ - ON ACCOUNT OF HOUSEHOLD EXPENSES ON AD - HOC ESTIMATED BASIS. THE ADDITION BE DELETED. 2. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW THE LD. CIT(A) WAS NOT JUSTIFIED IN CONFIRMING THE ADDIT ION OF RS. 27 500/ - AS MADE BY THE A. O. THE ADDITION BE DELETED. 3. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW THE LD. CIT(A) WAS NOT JUSTIFIED THAT THE ASSESSMENT MADE UNDER S. 143(3) WAS CORRECTLY MADE. IT IS NOW SETTLED LAW THAT IN VIEW OF THE PRONOUNCED JUDGMENTS OF THE JUDICIAL FORUM THAT THE ASSESSMENT FOR THE ASSESSMENT YEAR IN WHICH SEARCH ACTION WAS CONDUCTED MUST BE SO COMPLETED U/S 153A R.W.S. 143(3) OF THE ACT. IN VIEW OF THIS LEGAL POSITION THE ASSESSMENT COMPLETED U/S 143(3) IS BAD I N LAW AND WITHOUT JURISDICTION. IT IS QUASHED ACCORDINGLY. 4. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW THE LD. CIT(A) - KOLHAPUR WAS NOT JUSTIFIED IN REJECTING THE CLAIM OF THE APPELLANT REGARDING LEVY OF INTEREST UNDER S. 234B/234C OF THE ACT ESP ECIALLY IN VIEW OF THE FACT THAT THE CASH SEIZED DURING THE COURSE OF SEARCH ACTION WAS REQUIRED TO BE ADJUSTED AGAINST ADVANCE TAX PAYABLE IN VIEW OF S. 132B OF THE ACT. THE LEVY OF INTEREST U/S 234B AND 234C BE REDUCED ACCORDINGLY. 2 5 . SO FAR AS THE GRO UND NO. 1 IS IN RESPECT OF THE ADDITION TOWARDS HOUSE HOLD EXPENDITURE. THE IDENTICAL ISSUE HAS BEEN DECIDED BY US IN ASSESSEES OWN CASE FOR THE A.Y. 2007 - 08. FOLLOWING THE REASONS GIVEN 15 ITA NO. 1134 1135 1136 1137 1138 & 1139/PN/2012 ON THIS ISSUE WE DISMISS GROUND NO. 1. 2 6 . GROUND NO. 2 IS NOT P RESSED BY THE ASSESSEE . A CCORDINGLY THE GROUND NO. 2 IS DISMISSED AS NOT PRESSED. 2 7 . IN THE GROUND NO. 3 THE ASSESSEE HAS RAISED THE GRIEVANCE THAT SO FAR AS THE A.Y. 2008 - 09 IS CONCERNED THE ASSESSMENT SHOULD HAVE BEEN COMPLETED U/S. 153A AND NOT U/ S. 143(3). THE IDENTICAL ISSUE HAS BEEN DECIDED IN THE CASE OF SOU. DIVYA JAYRAM MEGHANI (A.Y. 2008 - 09) BEING ITA NO. 1134/PN/2012 . FOLLOWING THE REASONS GIVEN ON THIS ISSUE IN THE SAID CASE WE DISMISS THE GROUND NO. 3. SO FAR AS THE GROUND NO. 4 IS CO NCERNED IT IS IN RESPECT OF LEVY OF INTEREST U/S. 234B/234C OF THE ACT FOR NOT ADJUSTING THE SEIZED CASH AGAINST THE ADVANCE TAX PAYABLE. THE IDENTICAL ISSUE HAS BEEN DECIDED BY US IN ASSESSEES OWN CASE IN THE A.Y. 2007 - 08. FOLLOWING THE REASONS GIVEN I N THE SAID YEAR WE DISMISS THE GROUND NO. 4. IN THE RESULT THE APPEAL FOR THE A.Y. 2008 - 09 IS DISMISSED. ITA NO. 113 9 /PN/12 SHRI UDDHAV VARADMAL MEGHANI (A.Y. 200 8 - 09 ) 2 8 . IN THIS APPEAL THE ASSESSEE HAS TAKEN THE FOLLOWING GROUNDS: 1. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW THE LD. CIT(A) - KOLHAGYR.JA|AS NOT JUSTIFIED IN ESTIMATING HOUSE - HOLD EXPENSES OF THE APPELLANT / - IN THE ABSENCE OF ANY SEIZED MATERIALS FOUND IN THE SEARCH IT IS SINE - QUA - NON FOR FRAMING ASSESSMENTS UNDER S. 153A(B) OF THE . THE ESTIMATED CONFIRMED ADDITION BE QUASHED. 2. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW THE LD. CIT(A) KOLHAPUR WAS NOT JUSTIFIED IN CONFIRMING THE ADDITION MADE BY A. 0. OF RS. 92 000/ - BEING DIFFERENCE BETWEEN VALUATION MADE BY DVO AND THE INVESTMENT RECORDED IN THE BOOKS OF ACCOUNT IN THE IMMOVABLE PROPERTY. THE VALUATION MADE BY DVO RESORTING TO PROVISIONS OF S. 142A(1) IS ONLY BASED ON ESTIMATED VALUATION. IT CANNOT BE CALLED ACTUAL UNDISCLOSED INCOME FOR ASSESSMENT U/S 153A(B) OF TH E ACT. THE ADDITION BE DELETED. 16 ITA NO. 1134 1135 1136 1137 1138 & 1139/PN/2012 3. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW THE ASSESSMENT FOR THE YEAR UNDER APPEAL SHOULD HAVE BEEN COMPLETED UNDER S. 153A(B) AND NOT UNDER S. 143(3) ONLY CONSIDERING THE SEARCH ACTION CONDUCTED ON 18 - 4 - 2007 AND 20 - 4 - 2007 WHICH FALLS IN A. Y. 2008 - 09. IN VIEW OF THE LEGAL POSITION THE ASSESSMENT HAVING NOT MADE UNDER S. 153A IS BAD IN LAW AND WITHOUT JURISDICTION. IT BE QUASHED. 4. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW THE LD. CIT(A) WAS NOT JUSTIFIE D IN CONFIRMING THE ADDITION OF RS. 24 000/ - ADDED BY A. 0. ON ACCOUNT OF UNACCOUNTED EXPENDITURE TO OBTAIN GIFT. THE ADDITION BE QUASHED. 5. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW THE LD. CIT(A) - KOLHAPUR WAS NOT JUSTIFIED IN REJECTING THE CLAI M OF THE APPELLANT REGARDING LEVY OF INTEREST UNDER S. 234B/234V OF THE ACT ESPECIALLY IN VIEW OF THE FACT THAT THE CASH SEIZED DURING THE COURSE OF SEARCH ACTION WAS REQUIRED TO BE ADJUSTED AGAINST ADVANCE TAX PAYABLE IN VIEW OF S. 132B OF THE ACT. THE L EVY OF INTEREST U/S. 234B AND 234C BE REDUCED ACCORDINGLY 2 9 . SO FAR AS THE GROUND NO. 1 IS CONCERNED IT IS IN RESPECT OF THE ADDITION TOWARDS LOW HOUSE HOLD EXPENDITURE. WE HAVE HEARD THE PARTIES. THE IDENTICA L ISSUE HAS BEEN CONSIDERED AND DECIDED IN CASE S OF THE OTHER FAMILY MEMBERS AND ADDITION HAS BEEN CONFIRMED . WE THEREFORE F OLLOWING THE REASONS GIVEN IN CONFIRMING THE ADDITION IN THE OTHER FAMILY MEMBERS IN THE CASE OF PRESENT ASSESSEE ADDITION IS CONFIRMED AND ACCORDINGLY GROUND NO. 1 IS DI SMISSED. SO FAR AS GROUND NO. 2 IS CONCERNED IT IS IN RESPECT OF THE ADDITION OF RS.92 000/ - MADE BY THE ASSESSING OFFICER ON THE BASIS OF THE DVO REPORT. THE IDENTICAL ISSUE HAS BEEN DECIDED IN THE CASE S OF OTHER FAMILY MEMBER S AND ADDITION HAS BEEN DEL ETED . F OLLOWING THE REASONS FOR DELETING THE ADDITION IN THE OTHER FAMILY MEMBERS I N THE CASE OF THE PRESENT ASSESSEE ALSO THE ADDITION OF RS.92 000/ - IS DELETED AND GROUND NO. 2 IS ALLOWED. SO FAR AS THE GROUND NO. 3 IS CONCERNED THE GRIEVANCE OF THE ASSESSEE IS THAT IN THE A.Y. 2008 - 09 THE ASSESSMENT SHOULD HAVE BEEN COMPLETED U/S. 153A(B) 17 ITA NO. 1134 1135 1136 1137 1138 & 1139/PN/2012 OF THE ACT AND NOT U/S. 143(3) OF THE ACT. THE IDENTICAL ISSUE HAS BEEN DECIDED BY US IN THE CASE OF OTHER FAMILY MEMBERS I.E. SOU. DIVYA JAYRAM MEGHANI (A.Y. 2008 - 09) BEING ITA NO. 1134/PN/2012 . FOLLOWING THE REASONS GIVEN IN THE SAID CASE WE DISMISS THE GROUND NO. 3. SO FAR AS THE GROUND NO. 4 IS CONCERNED THE SAME IS NOT PRESSED BY THE LEARNED COUNSEL AND ACCORDINGLY THE SAME IS DISMISSED AS NOT PRESSED. SO FAR AS GROUND NO. 5 IS CONCERNED IT IS IN RESPECT OF CHARGING OF THE INTEREST U/S. 234B/234C BY NOT ADJUSTING THE CASH SEIZED D URING THE COURSE OF SEARCH OPERATION. T HE IDENTICAL ISSUE HAS BEEN ADJUDICATED IN THE CASE OF OTHER FAMILY MEMBERS AND F OLLOWIN G THE REASONS GIVEN IN CASES OF OTHER FAMILY ME MBERS IN THIS CASE ALSO GROUND NO. 5 IS DISMISSED. 30 . IN THE RESULT THE ASSESSEES APPEAL S FOR THE A.Y. 2008 - 09 BEING ITA NOS. 1134 1136 1137 & 1139 /PN/2012 ARE PARTLY ALLOWED AND THE APPEALS FOR A.YS. 2007 - 08 & 2008 - 09 BEING ITA NO S . 1135 & 1138 /PN/2012 ARE DISMISSED . PRONOUNCED IN THE OPEN COURT ON 29 - 10 - 20 1 3 SD/ - SD/ - ( G.S. PANNU ) ( R.S. PADVEKAR ) ACCOUNTANT MEMBER JUDICIAL MEMBER RK /PS PUNE DATE D : 29 TH OCTOBER 20 1 3 COPY TO 1 ASSESSEE 2 DEPARTMENT 3 THE CIT(A) KOLHAPUR 4 THE CIT KOLHAPUR 5 THE DR ITAT B BENCH PUNE . 6 GUARD FILE. //TRUE COPY// BY ORDER PRIVATE SECRETARY INCOME TAX APPELLATE TRIBUNAL PUNE