2018 (5) TMI 1727

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....that the return already filed may be deemed to have been filed in response to notice u/s. 153C of the IT Act. Further in response to notices u/s. 143(2)/143(1) of the Act, the assessee filed requisite details and complete books of account, which were examined by the Assessing Officer. From the details so submitted, the Assessing Officer noticed that the assessee raised share capital money worth Rs. 10,00,000/- from the following companies based in Kolkata/Howarah. Sl. No. Name of the Company No. of Shares Nominal value of share (Rs) Premium paid per share (Rs) Date of allotment 1 Midnight Agencies Pvt. Ltd. 3,000 30,000 (Rs. 10 per share) 2,70,000 (Rs 90 per share) 31.03.2007 2 Kathleen Vyapaar Pvt. Ltd. 3,000 30,000 (Rs. 10 per share) 2,70,000 (Rs 90 per share) 31.03.2007 3 Canton Vinimay Pvt. Ltd. 4,000 40,000 (Rs. 10 per share) 3,60,000 (Rs 90 per share) 31.03.2007 By way of questionnaire, the assessee was further required to furnish some details and to produce the share applicants noted and referring to various enquiries/post search enquiries made by the Investigation Wing, statements of Shri Sampat S....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....394 ITR 758 (Del.) (ii). CIT vs. Arpit Land (P) Ltd., 393 ITR 276 (Bom) (iii). Canyon Financial Services Ltd. vs. ITO, 399 ITR 202 (Del) (iv). CIT vs. Renu Construction (P) Ltd. , 399 ITR 262 (Del.) (v). Pepsi Foods Pvt. Ltd. vs. ITO, 367 ITR 112 (Del), SLP dismissed by Supreme Court in Appeal (c) No. 4659/2015 dated 04.12.2017 (vi). M/s. Pepsico India Holding Pvt. Ltd. vs. ACIT, 370 ITR 295 (Del) (vii). CIT vs. Lavanya Land (P) Ltd., 397 ITR 246 (Bom) 4. It was next contended that none of the documents referred to by the Assessing Officer are the material, much less incriminating material, to denote any income or share capital and share premium and therefore, the notice issued u/s. 153C is legally invalid, having been issued without any jurisdiction. Reliance is further placed on the following decisions in support: (i). CIT vs. Sinhgad Technical Education Society, 378 ITR 84 (Bom) upheld by Hon'ble Supreme Court (397 ITR 344(SC) (ii). CIT vs. RRJ Securities Ltd., 380 ITR 612 (Del.) (iii). Pr. CIT vs. Index Securities (P) Ltd., 157 DTR 20(Del) 5. On the other hand, the ld. DR relied on the decisi....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....e, the assessment order confirmed by the ld. CIT(A) is not found fit to support, having been passed without proving the primary ingredients of section 153C of the Act. It is worthwhile to note that the very same papers, as listed above, were also taken against the other group companies, i.e., Brahmaputra Finlease (P) Ltd. and M/s. Brahmaputra Realtors (P) Ltd. for the assessment year 2007-08 and similar additions were made in those cases also based on the same search and same papers. However, the ITAT Delhi Bench in the case of Brahmaputa Finlease (P) Ltd. (ITA No. 3332/Del./2017) vide order dated 29.12.2017 has examined the same documents and deleted the addition by quashed the assessment order as under : 4.10 Another argument, made by the Ld. CIT(DR) in support of her claim of incriminating material was that the Item No.(i) mentioned on page 6 of the assessment order, was incriminating in nature as it contained detail of accommodation entry. For having clarity on the issue raised by the Ld. CIT(DR), we may like to reproduce the relevant part of the assessment order as under: "Apart from, during the course of search operation in Brahmaputra Group of cases, carrie....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....s No. (ii) to (v), the Ld. counsel has submitted that additions in respect of the amounts mentioned in the document has been made in the case of another company namely "M/s Brahmaputra Infrastructure Ltd" in assessment year 2009-10. This fact was not controverted by Ld. CIT(DR). Thus, we find that no incriminating material qua the addition made is found during the course of search from the premises of the assessee. Accordingly, above contention of Ld. CIT(DR) are rejected. She also submitted that during the course of search, hard disks of computers and others material were also seized which contained incriminating material. The Ld. CIT(A) failed to substantiate the claim either by the impugned assessment order or through any other documentary evidence. In the assessment order, there is no mention that any incriminating material is found in hard disk etc. Thus, this contention of Ld. CIT(A) is also rejected. Further, the ld. Authorities below have also referred to the statements recorded of Shri Sampat Sharma against the assessee. The same statements were also read against M/s. Brahmaputra Finlease (P) Ltd. (supra), where, the Tribunal after relying on various decisions has held ....