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2018 (12) TMI 523
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....IT(SS)A No.129/CTK/2018 for the assessment year 2010-2011 along with other appeals of Revenue and cross objections of other assessee-M/s SGBL (India) Ltd. For the sake of convenience, we shall take the facts mentioned in Cross Objections of the assessee for the assessment year 2010-2011. 4. The assessee filed Cross Objection No.45/CTK/2018 for the assessment year 2010-2011 in case of M/s Diamond Plaza Pvt. Ltd. and has raised the following grounds :- "1. That, the Ld. C.I.T.(A) erred in not accepting the claim of the assessee that there being no incriminating material found in course of search, no addition can be made in respect of unabated year in relation to the share capital and share premium. 2. That, the order of the Ld. C.I.T.(A) rejecting the above legal claim of the assessee is arbitrary and directly in contradiction with several judgments of Hon'ble High Courts and Tribunal including the decisions of Hon'ble IT AT, Cuttack in the cases of E-City Projects Lucknow P. Ltd., order dated 28.02.2018 and Midas Capital Pvt. Ltd., order dated 23.03.2018 relied upon before him. 3. That the Ld. C.I.T.(A) being Officer subordinate to Hon'ble IT AT, Cuttack Bench was....
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....inst the aforesaid order of CIT(A) in directing the AO to delete the addition made u/s.68 of the Act and the assessee is in cross objection against dismissal of additional ground raised by the assessee. 8. Ld. AR submitted that the CIT(A) has erred in not accepting the claim of the assessee that there was no incriminating material found during the course of search conducted u/s.132 of the Act on 06.08.2014 and further the addition made in respect of said assessment year is not sustainable as it is unabated. Further ld. CIT(A) being the appellate authority is bound to follow the legal hierarchy of applicability of decision of higher forums but has overlooked the facts and has not considered the jurisdictional Income-tax Appellate Tribunal's order which is squarely applicable to the assessee's case. Further the CIT(A) is bound to accept the submissions and legal decisions relied upon, therefore, the assessee filed the cross objection. The ld. AR filed the written submissions and paper book to substantiate that no incriminating material has been found in search and in the assessment u/s.143(3) of the Act the AO has verified these facts and in the order passed u/s.153A of the Act, onl....
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....ounts, Panchnama, statements and seized documents and allotment of shares and assessment order u/s.143(3) of the Act. The ld. AR demonstrated and explained that in the proceedings u/s.143(3) of the Act the AO has called for the information in respect of allotment of shares which has already been considered. In the assessment order at page 1 para 2 & 3, the AO has observed as under:- "2. In response to statutory notices, Mr. M. Joayapuria along with Mr. B.N.Behera, Advocates, duly authorized Representatives (A/R) of the assessee appeared from time to time, explained the return and the case was discussed. During the course of hearing the A/R of the assessee produced the details viz; Audit Report, Bank Statement, Confirmation from Associated Developers confirming the debit balance of Rs. 2,34,840/- shown towards deposit against rent. Details of Sundry Creditors and Sundry Debtors, Ledger Account of Rent paid, Copy of Agreement for Lease/Rent made with United Builders, Ledger Account of Maintenance Charges, Copy of TDS Certificates, Details of TDS receivable, Ledger Account of Misc. Income (Maintenance Charges Received), List of Share Allotted and etc. After taking into consideration....
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....Supreme Court has observed as under :- "We desire to add and as was said in Cassel and Co. Ltd. v. Broome(l) we hope it will never be necessary for us to say so again that 'in the hierarchical system of Courts' which exists in our country, 'it is necessary for each lower tier', including the High Court, 'to accept loyally the decisions of the higher tiers'. "It is inevitable in a hierarchical system of Courts that there are decisions 11 of the Supreme appellate tribunal which do not attract the unanimous approval of all members of the judiciary............... But the judicial system only works if someone is allowed to have the last word and that last word, once spoken, is loyally accepted"(2). The better wisdom of the Court below must yield to the higher wisdom of the Court above. That is the strength of the hierarchical judicial system. In Cassel v. Broome, commenting on the Court of Appeal's comment that Rookes v. Barnard(3) was rendered per incuriam Lord Diplock observed,- "The Court of Appeal found themselves able to disregard the decision of this House in Rookes v. \ Barnard by applying to it the label per incuriam That label is relevant only ....
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....acts were disclosed in the return of income filed on 29.9.2011 and 27.9.2012. 26. On the other hand, ld CIT DR is of the view that in a proceeding u/s.153A of the Act even in the case of unabated assessment, addition can be made dehors incriminating search material. Ld D.R. in support of his above view relied upon the following decisions. (a) E.N. Gopakumar v. Commissioner of Income-tax (Central) [2016] 75 taxmann.com 215 (Kerala): "Section 153A, read with section 132, of the Income-tax Act, 1961 - Search & seizure - Assessment in case of (Scope of) - Whether for issuance of a notice under section 153A(1)(a), it is not necessary that search on which it was founded should have necessarily yielded any incriminating material against assessee or person to whom such notice is issued - Held, yes - Whether, therefore, assessment proceedings generated by issuance of a notice under section 153A(1)(a) can be concluded against interest of assessee including making additions even without any incriminating material being available against assessee in search under section 132 on basis of which notice was issued under section 153A(1)(a) Held, yes [Paras 7 and 8] [In favour of revenue). " ....
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.... Vs. Meeta Gutgutia Prop. M/s.Fems "N" Petals [2017) 395 ITR 526 (Del), wherein it was held that it is only if during the course of search u/s.132 of the Act incriminating material justifying the re-opening of the assessments for six previous years is found that the invocation of section 153A qua search of the assessment years would be justified. iv) In case of Pr. CIT-2, Kolkata Vs. M/s Salasar Stock Broking Ltd., G.A.No.1929 of 2016 (ITAT No.264/Kol/2016), order dated 24.08.2016, the Hon'ble Kolkata High Court has held as under :- "We are in agreement with the views expressed by the Kamataka High Court that incriminating material is a pre- requisite before power could have been exercised under section 153C read with section 153A. In the case before us, the assessing officer has made disallowances of the expenditure, which were already disclosed, for one reason or the other. But such disallowances were not contained under section 153C read with section 153A. The disallowances made by the assessing officer were upheld by the CIT(A) but the learned Tribunal deleted those disallowances. In that view of the matter, we are unable to admit the appeal. The appeal is, therefor....