TaxTMI 
TaxTMI 
2017 (12) TMI 346
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....arrant of authorization did not exist nor shown to have been so existing and the assessment made on him under section 153A of the Income-tax Act, 1961 is wholly without jurisdiction.' 1.2 BECAUSE the Ld. CIT(A)-XXXIII, New Delhi, erred in law in not adjudicating the Ground No. 1.2 of the appeal being 'BECAUSE the learned Assessing Officer, at all the stages of the proceedings before him, had all the authority and jurisdiction to look into the validity of search operation and it was his legal obligation to look into and adjudicate upon the same.' 1.3 BECAUSE the Ld. CIT(A)-XXXIII, New Delhi, erred in law in not adjudicating the Ground No. 1.3 of the appeal being 'BECAUSE valid search operation is the foundation for invoking the provisions of section 153A and the assessment order passed without looking into and adjudicating upon this basic issue is liable to be declared as void ab-initio.' 1.4 BECAUSE the Ld. CIT(A)-XXXIII, New Delhi, erred in law in not adjudicating the Ground No. 1.4 of the appeal being 'BECAUSE there existed no search warrant in the name of appellant as is evident from the fact that no 'Punchnama' has been....
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....ating the Ground No. 3.2 of the appeal being 'BECAUSE on a due consideration of facts and circumstances of the case, appreciation of submissions made by the appellant at all stages of the assessment proceedings, the learned Assessing Officer should have accepted the appellant's return and no further tax/interest should have been levied on him in the impugned assessment.' 3.3 BECAUSE the Ld. CIT(A)-XXXIII, New Delhi, erred in law in not adjudicating the Ground No. 3.3 of the appeal being 'BECAUSE on a due consideration of attendant facts and circumstances of the case, receipts on account of share capital / share application stood duly disclosed in the return filed and assessed as per Order dated 28.12.2007 under section 153A and the same could not have been adversely viewed in the assessment proceedings under section 153A, more so when no adverse material whatsoever was found during the global search carried out on the group as a whole.' 3.4 BECAUSE the Ld. CIT(A)-XXXIII, New Delhi, erred in law in not adjudicating the Ground No. 3.4 of the appeal being 'BECAUSE under the facts and circumstances of the case addition made to the returned loss are bey....
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....(A)-XXXIII, New Delhi erred in law in dismissing the Ground No. 5.5 of the appeal that 'BECAUSE no incriminating material in relation to the receipt of share application money / issue of share capital was found during the course of global search.' 5.6 BECAUSE the Ld. CIT(A)-XXXIII, New Delhi erred in law in dismissing the appeal and holding 'validity of jurisdiction for this assessment year on the basis of search material relating to stock for other assessment years.' 6. BECAUSE the Ld. CIT(A)-XXXIII, New Delhi, erred in law in not adjudicating the Ground No. 6 of the appeal being 'BECAUSE interest under various sections could not have been included in the computation of tax demand.' 7. BECAUSE the order appealed against is contrary to fact, law and principles of natural justice." 4. From the aforesaid grounds, it is gathered that the main grievance of the assessee in this appeal relates to the sustenance of addition made by the AO u/s 153A of the Income Tax Act, 1961 (hereinafter referred to as the Act) in the absence of incriminating material found during the course of search. 5. Facts of the case in brief are that the asse....
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....h Annexure 5. M/s. Jeevandhara Waters Pvt. Ltd. Rs. 10,00,000 Copy of Acknowledgement of Ereturn of Company, Director's Report, Auditor's Report, Balance Sheet, Profit and Loss Account with Annexure 6. M/s. Shree Leasing & Finance Limited Rs. 20,00,000 Copy of. Acknowledgement of Ereturn of Company, Director's Report, Auditor's Report, Balance Sheet, Profit and Loss Account with Annexure 7. M/s. Gauraj International Private Limited Rs. 20,00,000 Copy of Acknowledgement of Ereturn of Company, Director's Report, Auditor's Report, Balance Sheet, Profit and Loss Account with Annexure Total Rs. 1,05,00,000 The assessee submitted that the issue relating to share capital had already been adjudicated vide assessment order dated 28.12.2007 passed u/s 153A of the Act. The reliance was also placed on the judgment of the Hon'ble Supreme Court in the case of CIT Vs Lovely Export Pvt. Ltd. 6. The AO asked the assessee to produce the Directors of the share applicant companies for personal deposition. In compliance, the assessee attended the proceedings and furnished a letter dated 25.12.2....
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....y of Acknowledgement of IT Return for A. Y. 2005-06 , Share Application Form, Copy of Bank Statement of IDBI Bank, Director's Report, Auditors Report, Balance Sheet, Profit & Loss Account with Annexures F.Y. 2004-05. From this Company we have received Share Application Money of Rs. 15,00,000/- vide Cheque No. 204228 dated 21.6.2004 drawn on IDBI Bank, Park Street, Calcutta. This has been duly disclosed in the Schedule - 3 of Investment to the Balance Sheet. There are investments of the Company to the tune of Rs. 2,68,85,000/- which includes share application money paid to us. The Company is of substantial worth. We further enclosed therewith the Extract from the record of MCA of Government of India Portal to evidence the change of address. * M/S. WELLFIT TRADERS PRIVATE LIMITED OLD ADDRESS- 7, GRANT LANE, ROOM NO. 217, KOLKATA-700012. NEW ADDRESS-B-4, KESHAR APARTMENT, JHOWTALA ROAD, KOLKATA , WEST BENGAL-700059. PAN- AAACW4232D Presently assessed Under - Area Code WBG, Jurisdiction ITO-WD-(2), Kolkata Building - Aayakar Bhavan, Kolkata. We enclosed therewith copy of Acknowledgement of IT Return for A. Y. 2005-06, S....
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....ave received Share Application Money of Rs. 10,00,000/- vide Cheque No. 470101 dated 20.07.2004 drawn on IDBI Bank, Park Street, Calcutta. This has been duly disclosed in the Schedule - C of Investment to the Balance Sheet of share Applicant Company. There are investments of the Company to the tune of Rs. 2,65,01,500.00 which includes share application money paid to us. The Company is of substantial worth. We further enclosed therewith the Extract from the record of MCA of Government of India Portal to evidence the change of name from Madan Lal Real Estate Private Limited to Maa Gayatri Agencies Private Limited and also Certificate of ROC dated 02.06.2006. * JEEVANDHARA WA TERS PR1VA TE LIMITED NEW NAME - NARAYANI POLYTUBE PRIVATE LIMITED 4, BALLAY DAS STREET,4TH FLOOR, KOLKATA - 700007 CIN-88801 PAN-AABCJ3665Q Presently assessed under -Area Code WBG, Jurisdiction ITO-WD-9(3), Kolkata Building - Aayakar Bharan, Kolkata. We enclosed therewith copy of Acknowledgement of IT Return for A.Y. 2005-06, Director's Report, Auditors Report, Balance Sheet, Profit & Loss Account with Annexures F. Y. 2004-05. From this Company w....
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....7.2004 drawn on IDBI Bank, Brabourne Road, Calcutta. This has been duly disclosed in the Schedule - 3 of Investment to the Balance Sheet. There are investments of the Company to the time of Rs. 2,37,53,000/- which includes share application money paid to us. The Company is of substantial worth. We have filed his share application form and Confirmation towards payment of Share Application Money which are on record. We have already filed the drawn status report of these Companies from the Portal of Ministry of Corporate Affairs, Government of India in which the address of Registered Office of the Company is duly mentioned. All the Companies are duly appearing in the Portal of Ministry of Corporate Affairs. The shares against share application money has been allotted vide resolution of board of directors and due form has been submitted to the Registrar of Companies, through MCA portal. (iii) The assessing officer in original assessment has accepted the submission of the appellant company and no addition was made while passing the original assessment order dated 31-12-2008 which was filed before the assessing officer in current assessment proceedings also. ....
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....n the assessee to prove the genuineness of the transaction and credit worthiness of the creditors. The reliance was placed on the judgment of the Hon'ble Delhi High Court in the case of CIT Vs M/s N. R. Portfolio Pvt. Ltd. in ITA No. 134 of 2012 order dated 21.12.2012. The ld. CIT(A) confirmed the addition made by the AO by observing as under: "In view of above Judicial pronouncement. I think, once the assessing officer has doubted the documents furnished by appellant and conducted enquiry which creates doubts about genuineness of the transaction, the onus has shifted on the appellant to produce the share applicant in person or rebut the enquiry. The appellant has choosen to produce the share appellant in person nor rebutted the enquiry either before A.O. or before the undersigned. Ld. AR's other argument is that on same facts, A.O. has not made addition in first round of assessment therefore on same facts, if addition is made, it amounts to review. I do not agree with this argument. In second round, on changed circumstances the assessing officer has conducted enquiry by issuing summons which remains uncomplied. Hence, the present addition is just not on same facts. In....
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.... Ltd. (2016) 387 ITR 636 (Del.) • CIT Vs Meeta Gutgutia (2017) 395 ITR 526 (Del.) 10. The ld. Counsel for the assessee also stated that additions on account of stock were made for the assessment year 2007-08 but the ld. CIT(A) deleted those additions and for the assessment year 2008- 09, the matter is still pending before the Excise Department. Therefore, the allegation of the AO that in the subsequent years, the additions were made on the basis of incriminating documents found during the course of search, was not correct. It was submitted that the addition made by the AO and sustained by the ld. CIT(A) in the absence of any incriminating material found during the course of search was not justified. 11. In his rival submissions the ld. DR reiterated the observations made by the authorities below and strongly supported the impugned order passed by the ld. CIT(A). It was further submitted that as a result of search and seizure documents were seized on the basis of which additions had been made on account of unaccounted stock for other assessment years i.e. assessment years 2007-08 and 2008-09 u/s 153A of the Act. Therefore, the seized material can be relied u....
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....SC) • CIT Vs Nova Promoters & Finlease (P) Ltd. (2012) 18 Taxmannl.com 227 (Del.) • CIT Vs N. R. Portfolio (P.) Ltd. (2013) 29 Taxmann.com 291 (Del.) • CIT Vs N. R. Portfolio (P.) Ltd. (2014) 42 Taxmann.com 339 (Del.) • Subhlakshmi Vanijaya (P) Ltd. Vs CIT 60 Taxmann.com 60 (Kol-Trib.) • NIIT Vs CIT (2015) 60 Taxmann.com 313 (Del.-Trib.) 12. We have considered the submissions of both the parties and carefully gone through the material available on the record. In the present case, it is an admitted fact that a search in the Kurele Group to which the assessee belonged was carried out first time on 01.09.2005 and the assessment u/s 153A of the Act was framed on 28.12.2007 which is evident from page nos. 14 to 16 of the assessee's paper book. The AO discussed the issue relating to share capital in paras 1 to 1.2 of the order dated 28.12.2007 which reproduced verbatim as under: "1.1 On perusal of the balance sheet as at 31.3.2005 it has been noticed that the paid share capital of the assessee company has been increased from Rs. 102,000/- to Rs. 10,602,000/- i.e. there is an increas....
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....sh the confirmation from all six persons but whom shares were allotted year by year alongwith the copies of their bank statement, audited account and ITRs for the year under consideration which were furnished by the assessee. The AO was satisfied with the details furnished by the assessee except for 1,00,000 shares of Rs. 10/- each allotted to M/s Jeevandhara Waters Pvt. Ltd. which were added to the income of the assessee and finally the assessment was framed at an income of Rs. 5,83,177/-. Thereafter, a search u/s 132 of the Act was again carried out on 19.01.2009 on the assessee company. However, the assessment was framed by making the addition of Rs. 1,05,00,000/- on account of share capital and another addition of Rs. 10,00,000/- which was included in the above said amount and already added on account of shares allotted to M/s Jeevandhara Waters Pvt. Ltd. It is, therefore, clear that no fresh incriminating material was found during the course of search which took place on 19.01.2009. It is also noticed that the ld. CIT(A) in the impugned order at page no. 17 noted as under: "In appellant's case, a result of search & seizure, documents were seized on the basis of which ....
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....ave to be computed by the Assessing Officers as afresh exercise. (iii) The Assessing Officer will exercise normal assessment powers in respect of the six years previous to the relevant assessment year in which the search takes place. The Assessing Officer has the power to assess and reassess the "total income" of the six years in separate assessment orders for each of the six years. In other words, there will be only one assessment order in respect of each of the six assessment years in which both the disclosed and the undisclosed income would be brought to tax. (iv) Although section 153A does not say that additions should be strictly made on the basis of evidence found in the course of the search, or other post-search material or information available with the Assessing Officer which can be related to the evidence found, it does not mean that the assessment can be arbitrary or made without any relevance or nexus with the seized material. Obviously, an assessment has to be made under this section only on the basis of the seized material (v) In the absence of any incriminating material, the completed assessment can be reiterated and the abated assessment or reassessment can be made.....