2015 (8) TMI 9

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....rred, in violation of Rule 46A of the Income Tax Rules, 1962 by not following the decision of Hon‟ble Delhi High court in the case of Manish Build Well Pvt. Ltd. 204 Taxman 106, wherein it was held by the Hon'ble Jurisdictional High court to give two stage opportunity under rule 46A i.e. first before admission of additional evidence and second after admission of additional evidences.   3. The order of the CIT(A) is erroneous and is not tenable on facts and in law.   4. The assessee craves leave to add, alter or amend any / all of the grounds of appeal before or during the course of the hearing of the appeal.   3. The grounds raised in Assessee's Cross Objection No. 245/Del/2014 (A.Y. 2007-08) are as under:-   1. That on the facts and circumstances of the case, the CIT(A) has erred both in law and on facts in confirming the recourse to the provision of section 153A of the I.T. Act, taken by the AO and the failing to appreciate the fact that there was no search and seizure action initiated on the assessee therefore the assessment order passed by the ld. AO deserves to be annulled. 2. That on the facts and circumstances of the case, the....

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....d mainly in business of promotion and development of DDA approved commercial complexes. During the year, under consideration the company was executing one commercial project „Function Mall‟ which is situated at Prashant Vihar, Rohini, New Delhi. AO has noticed that the assessee company has received share capital / share application money from different entities. He observed that some of the applicants are individuals as well as group companies related to the Unity Group itself and are assessed in the same Circle. The AO himself acknowledges in para 5 of the assessment order that the sources of fund of these persons / companies have been verified in their respective cases. And then he proceeds to verify the fresh share capital / share application money received by the assessee and for that summons were issued u/s. 131(1) of the Act, and information was called u/s. 133(6) of the Act. In the assessment order the AO observes that the requirement of Section 68 of the Act is that the onus to prove the credit entry in the books of accounts is primarily on the assessee and not on the department. According to him, the assessee has not fully discharged its onus to prove the credi....

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....IT(A) that M/s Caplin Commercial Pvt. Ltd.‟s identity, creditworthiness and genuineness stands proved in the aforesaid case will apply to this case also and therefore we concur with the Ld. CIT(A) and dismiss both the grounds of the Revenue following our finding in ITA No. 2290/Del/2013 (AY 2006-07) on both grounds raised before us.   11. In the result, the Appeal filed by the Revenue stands dismissed.   CROSS OBEJCTION 245/DEL/2014 (AY 2007-08)   12. In the Cross Objection the assessee has raised five grounds, in which he has not pressed ground Nos.1, 2 and 3 and the same stands dismissed.   13. Coming to the Ground Nos.4 and 5 the ld AR for assessee Shri A.K. Jain, has vehemently assailed the decision of the ld CIT(A) in respect to confirming the impugned reassessment order passed u/s 153A of the Income Tax Act, 1961 (herein after 'the Act'). According to him, without any incriminating material seized during the course of search and seizure conducted on 20.08.2009, the re-assessment and the impugned addition made u/s 153A is invalid in the eyes of law. The ld AR contended that for the instant year under consideration no incriminating ....

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....ears, the AO has to assess/reassess the assessee even though the original assessment was concluded u/s 143(3) of the Act and placed his reliance on the order of the Hon'ble Delhi High Court in the case of Filatex India Ltd. In ITA No.269/2014and CM No.10077/2014 dated 14.07.2014. And also relied upon the decision on the following orders:-  Anil Kumar Bhatia 24 Taxmann.com 98 dated 07.08.2012 of Hon'ble Delhi High Court  Raj Kumar Arora, ITA No. 56/2011 dated 11.07.2014 of Hon'ble Allahabad High Court  Canara Housing Development Company, ITA No. 38/2014 dated 25.07.2014 of Hon'ble Karnataka High Court  Apoorva Extrusion Pvt. Ltd., ITA No. 3308/Del/2010 for the A.Y. 2002-03, dated 09.10.2014 (IT AT, Delhi)  Shivnath Rai Harnarain (India) Ltd. v.DCIT 117 ITD 74 dated 15/02/2008 (ITAT, Delhi)  SSP Aviation Ltd. Vs. DCIT, WPC No. 309/2011 dated 29103/2012 14. We have heard both the parties and have perused the records of the case, and have gone through the case laws cited before us. Before we adjudicate this issue we were wondering whether an addition can be made without the support of any material leav....

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....at based on evidence as stated above; without the same, the additions will have no legs to stand and it has to necessarily fall. Coming to the case laws cited by the Ld. DR, we would like to point out that in all these cases decided by the Hon'ble Jurisdictional High Court, on facts there was incriminating material and the view of the Special Bench of the Tribunal in All Cargo Logistics Ltd. in which the Special Bench held that the de-hors any incriminating material, no additions can be sustained has been upheld by the Hon'ble Bombay High court in Income Tax Appeal No. 1969 of 2013 filed by the Revenue against the said decision of the Special Bench i.e. ALL Cargo, wherein the Hon'ble High Court in para 14 (Page 9) has specifically adjudicated the issue raised before their Lordships that "to interpret not only the legal provisions but consider the correctness of the view taken in the Special Bench decision, we proceed to admit these appeals on the above questions."   15. The grounds raised by the Revenue before the Hon'ble High Court of Bombay in that case (ALL Cargo) were the following:-  "(i) Whether on the facts and in the circumstances of the case....

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....e additions made has no basis and is not based on any evidence to support the same collected during the search conducted against it and so the same has been rightly deleted and so the revenue appeal is dismissed and the CO is partly allowed in light of the co-ordinate bench decision in assessee's own case passed for Assessment Year 2008-09.   20. We take note of the 'A' Bench decision of ITAT, Delhi, in the assessee's own case in ITA No. 1605/Del/2013, AY 2005-06, vide order dated 18/07/2014 considered identical grounds in the case of Sanjay Aggarwal Vs. DCIT in ITA No. 3184/Del/2013, A.Y. 2003-04 under Section 153A proceedings wherein the Bench in the assessee's own case vide para 14 held as follows: "14. Since the Special Bench has decided this issue in this manner, it is not possible for us to deviate from the same. There has to be some consistency in the view taken by the Tribunal. Once a Special Bench has decided a particular issue in a particular manner, then, that becomes binding on all the division benches across the country unless there is a contrary judgment of the Hon'ble Supreme Court or that of some High Court. As the ld. DR failed to....