TaxTMI 
TaxTMI 
TaxTMI 
2016 (12) TMI 1862
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....ed together and disposed off in a consolidated order for the sake of convenience. ITA no.5932/Mum./2009 - A.Y. 2001-02 ITA no.5933/Mum./2009 - A.Y. 2002-03 2. In the memorandum of appeals, assessee originally had raised grounds challenging the additions made by the Assessing Officer on merits. However, subsequently, the assessee had filed additional grounds challenging the validity of proceedings initiated under section 153A of the Act. As the issue raised in the additional ground is purely a legal and jurisdictional issue going to the root of the matter and can be decided on the basis of facts and materials available on record, we propose to deal with the additional ground raised at the outset. 3. Brief facts which are common on all these appeals are the assessee a company is engaged in the business of trading and investment in shares and securities. A search and seizure operation under section 132 of the Act was conducted on 10th November 20016 in the business and residential premises of the companies / directors and related persons dealing with Balaji Group. In the course of search and seizure operation, the Department found that the Flagship company of the Balaji Group is ....
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....the learned Commissioner (Appeals). 5. The learned Commissioner (Appeals) also confirmed the additions. 6. Learned Authorised Representative submitted before us, as far as assessment years 2001-02 and 2002-03 are concerned, on the date of search no assessment was pending before the Assessing Officer as in the case of assessment year 2001-02, the original assessment has already been completed under section 143(3) of the Act on 17th March 2004 and for assessment year 2002-03, return of income has been processed under section 143(1). He submitted, in the course of search and seizure operation, no incriminating material has been found by the Department. He submitted, the assessee, in the return of income filed for these two assessment years, has disclosed all material facts relating to share application money. Taking us through the assessment order, the learned Authorised Representative submitted, the Assessing Officer has not referred to any incriminating material having nexus to the addition made by the Assessing Officer. Therefore, the initiation of proceedings under section 153A, in the absence of any incriminating material against the assessee is without jurisdiction. He submitt....
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....ssed by the Assessing Officer, save and except the statement recorded from a director of a newly set-up company. In fact, on a perusal of the said statement also, we do not find in any way it is having any reference to the assessee. In fact, to a specific query from the bench to the learned Departmental Representative, to point out the specific incriminating material on the basis of which the addition has been made, the learned Departmental Representative fairly submitted, in the assessment order there is no reference to any such incriminating material. Thus, prima-facie it is established that there is no incriminating material unearthed as a result of search which could reveal undisclosed income of the assessee. It is evident, in the proceedings initiated under section 153A, the Assessing Officer was only re-examining the genuineness of the share application money. In our view, this is not the intent and purpose of section 153A. The ITAT, Mumbai Special Bench, in case of All Cargo Global Logistics Ltd. v/s DCIT, [2012] 18 ITR 106 (Trib.), while examining the power of the Assessing Officer under section 153A of the Act has held, in case of assessments pending on the date of searh t....
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....application money received by the assessee amounted to Rs. 14,25,500. On the basis of the reasoning on which he held the share application money received by the assessee in the assessment year 2001-02 and 2002-03, as non-genuine, in the impugned assessment year also he held that share application money amounting to Rs. 14,25,500 received from M/s. Preksha Exports Pvt. Ltd., as non-genuine and added back as unexplained cash credit under section 68 of the Act. Though, the assessee challenged the addition before the learned Commissioner (Appeals), however, the learned Commissioner (Appeals) also confirmed the addition. 13. Learned Authorised Representative submitted, the share application money of Rs. 14,25,000 was received from Preksha Exports Pvt. Ltd. and the concerned party has disclosed the amount not only in its books of account but has also reflected in its return of income. He submitted, a confirmation from the concerned party was also submitted before the Assessing Officer. He submitted, the same Assessing Officer had also completed the assessment in case of share applicant under section 143(3) r/w section 153A of the Act. He, therefore, submitted, there is....