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2018 (12) TMI 826
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....ciding the above appeals en masse. 3. Grievances raised by the Revenue ( in lead case) in IT(SS) No. 18/Kol/2017, for the A. Y. 201112, are as follows:- 1. That on the facts and circumstances of the case and in law, Ld. CIT(A) is not justified to hold that the additions made in the Assessment order are not based on any incriminating documents or papers without examining the records to find out existence of seized material in the case and in merely taking the decision on the basis of submission of the assessee. 2. That, on the facts and circumstances of the case and in law, the Ld. CIT(A) is not justified in adjudicating appeal without going into the other grounds on merit. 3. That, on the facts and circumstances of the case and in law, the Ld. CIT(A) is not justified in deleting addition of Rs. 1, 30, 00, 000/- made by the AO u/s 68 of the Income Tax Act, 1961, on account of share application money, without calling for independent enquiry regarding the existence of seized material and the merit of the case. 4. In assessment Year 201011, the Revenue raised the additional ground, which reads as follows: "4. That on the facts and circumstances of th....
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....30, 00, 000/ 4 Albatross Share Registry Pvt. Ltd. 4F2, Court Chambers, 35, New Marine Lines, Mumbai20 AAACA9004H 15, 00, 000/ Total: Rs. 1, 30, 00, 000/ Initially, in the case of the abovementioned companies, request for information regarding the transactions made by them with the assessee were called for u/s 133(6) of the Income Tax Act 1961, by letter dated 21. 12. 2015, to which compliances were made through return of post. 8. Subsequent to this, commission under section 131(l)(d) of the I. T. Act, 1961 was issued to the Addl. DIT(Inv), Unit 1, Guwahati on 15. 02. 2016 requesting for examining the three (3) Guwahati based parties in order to prove the genuineness of the transaction entered with the assessee. Further, commission u/s 131(1)(d) of the I. T. Act, 1961 was issued to the DDIT(Inv), Unit1( 2), Mumbai on 01. 03. 2016 for examining of the Mumbai based party viz. Albatross Share Registry Pvt. Ltd. Later, a report of the commission was sent, which had been received from the DDIT(Inv), Unit1( l), Guwahati on 02. 03. 2016, wherein it had been found that, no office or business activities of the aforesaid companies was operating from....
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....ati, (received on 02. 03. 2016), does not mention about any compliances being made by the Guwahati based investor companies as alleged by the assessee. Further, no subsequent report stating any compliances made, was also received from the DDIT(Inv), Guwahati . The assessee on its own furnished some details with a speed post acknowledgement citing that required submissions were sent by post to the DDIT(Inv), Guwahati, in response to the summons issued. But, the fact is that summons were issued for physical appearance along with certain detailed informations. Merely sending of the details by post as stated by the assessee does not amount to compliance. Similarly, in case of M/ s Albatross Share Registry Pvt. Ltd, report received from the DDIT(Inv) Unit 1(2), Mumbai, does not mention about any compliances being made by the said investor company. The assessee's claim of furnishing of details as called for u/s 133(6) notice, by post could not be the sole criteria for judging the genuineness of the transactions involved, as the same remained to be reinforced with compliance to the summons issued for physical appearance with certain other details. Therefore, assessing officer conclude....
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....terial is found relating to a specific year, section 153A is triggered and assessment/reassessment of total is required to be made for all the earlier six assessment years u/s. 153A of the Act. In a case where no incriminating material relating to any year is found during search, the provision of section 153A can be invoked and assessment/reassessment of total income can be made relating to the earlier six years. The ld DR pointed out that another significant feature of section 153A, is that the Assessing Officer is empowered to assess or reassess the 'total income' of the aforesaid six years. This is a significant departure from the earlier block assessment scheme in which the block assessment roped in only the undisclosed income and the regular assessment proceedings were preserved, resulting in multiple assessments. Under section 153 A, however, the Assessing Officer has been given the power to assess or reassess the 'total income' of the six assessment years in question in separate assessment orders. This means that there can be only one assessment order in respect of each of the six assessment years, in which both the disclosed and undisclosed income would be b....
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....of the ld CIT(A) should be upheld. 15. We have given a careful consideration to the rival submissions and perused the material available on record, we note that the grounds raised by the Revenue are against the assessment order passed u/s 153A/143(3) of the Income Tax Act, 1961, wherein, on appeal filed by the assessee, the ld CIT(A) deleted the addition made by assessing officer. The main contention of the assesse is that additions made in the assessment order passed u/s 153A/143(3) are not based on any incriminating documents/materials seized during search operation conducted under section 132 of the I. T. Act, 1961. We note that assessing officer made addition of Rs. 1, 30, 00, 000/on account of share application money received from, 1) Ispat Sheets Ltd, 2) N. E. Electronics Ltd, 3) Novelty Traders Ltd, and 4) Albatross Share Registry Pvt. Ltd. 16. We note that summons were issued and served on M/s Ispat Sheets Ltd. , M/s NE. Electronics Ltd. and M/s Novelty Traders Ltd. The assessee had contacted the said parties and came to know that they have sent their reply dated 18. 02. 2016 through speed post on 19. 02. 2016 to DDIT(Inv), Guwahati. These parties filed their written ....
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....43(1) of the Act, without having any incriminating material on record. In proceedings u/s 153A/153C to reopen the completed assessment is restricted only to the extent of incriminating documents, if any, only. We note that issues forming part of the items of the regular assessment, is beyond the scope of the search assessment u/s. 153A/153C of the Act and the AO has no jurisdiction to make additions otherwise than on the basis of the incriminating material found in the course of search. The above addition made in the assessment order is part and partial of the regular Income Tax Return. This fact is evident from the assessment order as the AO has not referred any incriminating material for making the above additions/disallowances. 18. We note that a search was conducted on the appellant on 13. 11. 2013 & 09. 01. 2014 and proceedings u/s. 153A of the Act was invoked against the assessee. The main thrust of the argument of the Ld. AR is that assessments for AY 200910, 201011 and 201112 were completed u/s. 143(3)/143(1) of the Act, well before the date of search i. e. on 13. 11. 2013, therefore, those assessments for those years cannot be said to be pending before the AO on the dat....
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....evious to the relevant AY in which the search takes place. The AO has the power to assess and reassess the 'total income' of the aforementioned six years in separate will be only one assessment order in respect of each of the six 'AYs " in which both the disclosed and the undisclosed income would be brought to tax". 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 AO 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 seized material. " v). In absence of any incriminating material, the completed assessment can be reiterated and the abated assessment or reassessment can be made. The word 'assess' in Section 153A is relatable to abated proceedings (i. e. those pending on the date of search) and the word 'reassess' to completed assessment proceedings. vi. Insofar as pending assessments are concerned, the jurisdiction to make th....
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....point out to the contrary. It is for this reason the High Court has also given its imprimatur to the aforesaid approach of the Tribunal. That apart, learned senior counsel appearing for the respondent, argued that notice in respect of Assessment Years 2000-01 and 2001-02 was even time barred. " 21 Support, is also drawn from the following judgments: i) BiswanathGarodiaVs. DCIT (2016) 76 taxmann. com81 ii) CIT Vs. Continental Warehousinhg (NhavaSheva) Ltd (2015 374 ITR 645). iii) Jai Steel (India) Jodhpur Vs. ACIT (2013) 259 CTR 281 iv) CIT Vs. Deepak Kumar Aggarwal (2017) 398 ITR 586 v) Principal CIT Vs. DipakJashvantalaPanchal (2017) 397 ITR 253. vi) Principal VIT vs. Lalit Jain (2017) 384 ITR 543 vii) Pr. CIT vs. Dvangi Alias Rupa (2017 394 ITR 184 viii) Chintels India Ltd Vs. DCIT (2017) 397 ITR 416 ix) Smt. AnjliPanditVs. ACIT (2017) 157 DTR (Mum) (Tri. ) 17 x) Pr. CITVs. MeetaGutgutia (2016)395 ITR 526. 22. We find from the assessment order that during the search and seizure operations conducted u/s 132 of the IT Act, 1961, incriminating documents/papers were not seized. At least, a....