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2022 (1) TMI 122

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....aring an income of Rs. 1,96,490/-. A search action u/s. 132 of the Act was conducted in the case of M.M. Aggarwal group of cases on 28th March, 2015 during which the case of the assessee was also covered. During the course of search carried out at different premises located in India in M.M. Aggarwal group of cases, documents and data storage devices, etc., belonging to the assessee were found and seized. In response to the notice u/s. 153A, the assessee filed its return of income on 15th June, 2016 declaring the total income of the assessee at Rs. 1,96,490/-. 4. During the course of assessment proceedings, the AO observed that the assessee company has received share capital and share premium of Rs. 1,65,00,000/- from the following five companies:- Sr. No. Assessment Year  Name of Company Share capital Share premium Total 1 2010-2011 Competent Infoways (P) Ltd. 6,75,000 60,75,000 67,50,000 Passion IT Solutions (P) Ltd 1,00,000 9,00,000 10,00,000 Prince IT Solutions Pvt Ltd 1,25,000 11,25,000 12,50,000 Sterling Foils Ltd 2,50,000 22,50,000 25,00,000 \ Sidhbhoomi Alloys Limited 5,00,000 45,00,000 50,00,000 Total 16,50,000 1,48,50,000 165,00,000 5....

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....assessee company. The assessee also filed copies of the bank books and ledger accounts of the group companies which made the funds available to the investor companies which in turn contributed such funds to subscribe to the share capital of the assessee company during the relevant period under consideration. 7.1. However, the AO was not satisfied by the arguments advanced by the assessee. He noted from the perusal of the details filed that the assessee received certain funds in the form of accommodation entries in a layered structure. The undisclosed funds were received in the form of share capital from the shell companies of the group which in turn remitted the same to operating companies. On verification of the source of such funds in the investor companies, it is apparent that the assessee has failed to substantiate the source of funds received by its investors. The assessee also did not produce the director or other office bearers of the investor companies. 8. The AO was of the opinion that it is illogical as to why a prudent investor will receive funds from various shell/non descript entities when unlimited other opportunities are available to him in the market. Further no s....

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....o the AO. Therefore, even on merit also no addition is called for. 11. However, the ld. CIT(A) was not fully satisfied with the arguments advanced by the assessee. So far as the validity of assessment u/s. 153A in absence of any incriminating material is concerned, the ld. CIT(A) dismissed the same by observing as under:- "5. Findings 5.1 I have considered the submission of Ld. A.R., assessment order and cases law cited in this regard. The AO invoked the process u/s. 153A after the search on appellant group on 28.03.2015 and on receipt of appraisal report from Dl(Investigation) with the allegation that the appellant company had received unexplained credit in its books u/s. 68 of the IT Act. All the grounds of appeal are dealt with together being of similar nature. 5.2 The basic facts are as follows: The basis of addition as taken by AO was statement recorded of Shri Sanjeev Agrawal during the course of search wherein he surrendered an amount of Rs. 88.52 crore out of which a sum of Rs. 30.78 crores were referred to for the assessment year 2008-09. The disclosure was not descriptive and vague and it was also contended that the appellant shall explain the transactions after e....

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....ent views. b) The share certificates found in respect of companies mentioned at serial no 3 to 5 is related to investment made by group concerns of JPM group and does not pertain to outsiders. 5.3 These merit examination of the case under 153A of the IT Act 1961. The availability of such documents raises valid doubts on the genuineness of the transactions involved herein. The issue of existence of incriminating material has to be considered in totality. The assessee cannot hide behind seizure or non seizure of documents. The same has to be construed with the trade practices and the expected action on part of independent entity in normal circumstances. Any such entity will surely expect due returns or capital appreciation in due course. The investor is surprisingly bereft of interest in the matter. The AO and this appellate forum too have to construe the incriminating material in a harmonious fashion. Hon'ble Delhi High Court has also reiterated in many rulings that action u/s. 153A is bound to be initiated in such situations. Therefore, this action of the AO is in tune with judgement of Hon'ble Delhi High Court in CIT (C)-III vs. Kabul Chawla (Delhi) [2015] 61 taxman.co....

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.... xi) Copies of the acknowledgement of the income tax return filed for AY 2010-11 by the investor companies along with their audited financials for the year ended 31st March 2010. 5.6. The notice u/s. 133(6) of the act was complied with and the requisite information and documents were furnished to the AO required information and documents were available according to text of order itself. The assessee has furnished the detail of financials of the investing entities. After considering the identities and financials and credit worthiness of the 'investor companies and genuineness of transaction and source and availability of fund by investor, I am of the considered view that the A.O has merely accepted the appraisal report of the Investigation Wing without meeting the touchstone tests of section 68 like- credit worthiness, identities and genuineness of transaction. Further A.O has made such addition stating that the income declared by the investors is lesser than the investment made by them which in my opinion has no criteria it is only source and availability of fund which remain the factor to observe accordingly the addition made by A.O u/s. 68 of the Act is deleted. 5.7. Ld A....

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....lude purchase/sales/manufacturing trading of Gutkha, Supari made in cash outside books of accounts" and they were "actually unaccounted transactions made 'by two of the firms of the Assessee. Thirdly, the court found as a matter of fact that the Assessee were "habitually concealing income ' and that they were "indulging in clandestine operations" and that such persons "can hardly be expected to maintain meticulous books or record for long. "As pointed out by this court in Principal Commissioner of Income Tax Central-2 New Delhi v. Meeta Gutgutia (supra) the decision in Smt. Dayavanti Gupta v. CIT(supra), therefore turned on its own facts and did not dilute the law explained in Commissioner of Income Tax (Central-III) v. Kabul chawla(supra). 33. At this stage, it requires to be noticed that the decision of this court in Commissioner of Income Tax (Central -III) v. Kabul chawla(supra) took note inter alia of the decision of Bombay High court in the Commissioner of Income Tax v. Continental Ware housing Corporation (Nhava Sheva) Ltd.[2015]58 taxmann.com 78(Bom), wherein it was held that if no incriminating materials was found during the course of search, in respect of each i....

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....the material found during the course of search and other evidences placed on record by the assessee are contrary to the allegation made by Shri Tarun Goyal in his statement. ---- Conclusion --- 44. Accordingly the question framed by the Court in ITA Nos. 11, 12 and 21 of 2017 by the order dated 21st March, 2017 is answered in the negative i.e. in favour of the Assessee and against the Revenue by holding that the additions made under Section 68 of the Act on account of the statements made by the Assessee's Directors in the course of search under Section 132 of the Act were rightly deleted by the ITAT." 5.9. Respectfully following the above judgment, which is on identical factual matrix, it can be reasonably inferred that material found during the search in respect of the equity received by the assessee cannot lead to the conclusions drawn by the AO. No specific corroborative evidence has been brought on record by Assessing Officer to prove that the equity subscription is an accommodation entry. Besides, appellant has also discharged its onus and submitted all the documentary evidence in respect of the investment. The details submitted in this regard by the appellant have a....

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....diction and, deserved to be quashed as such. 1.1 That addition made of Rs. 1,65,00,000/- is without jurisdiction since it is not based on any material found as a result of search on the appellant, as have been also held by the judgments of Hon'ble Delhi High Court in the case of CIT vs. Kabul Chawla reported in 380 ITR 573 and Pr. CIT vs. Meeta Gutgutia reported in 395 ITR 526. 2. That since approval obtained u/s. 153D of the Act was a mechanical and, invalid approval having been granted without due application of mind to the facts of the assessee company, order of assessment made u/s. 153A/143(3) is invalid and not in accordance with law. It is therefore, prayed that it be held that notice issued u/s' 153A of the Act and also assessment framed u/s. 153A/143(3) of the Act are without jurisdiction." 14. The ld. Counsel for the assessee, at the outset, submitted that original return in this case was filed on 08.09.2010 which was processed u/s. 143(1) of the Act. Search in the instant case was conducted on 28th March, 2015. The time required for issue of notice u/s. 143(2) had already expired on the date of search. Thus, this is a non-abated assessment. The share capita....

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....u/s. 153A of the I.T. Act. Accordingly, the addition made by the Assessing Officer and upheld by the ld. CIT(A) in the 153A assessment proceedings being void ab-initio are deleted. 46. Since the assessee succeeds on this legal ground, arguments made by the ld. counsel for the assessee on merit are not adjudicated being academic in nature." 17. The ld. Counsel for the assessee while stressing that no incriminating material was found during the course of search, submitted that a 'panchnama' was drawn on 30th March, 2015 in respect of the premises, namely, 1010, Vijaya Building, Barakhamba Road, New Delhi. He submitted that there is no discussion in the assessment order which would suggest that any incriminating material was found in the course of search which is relatable to the additions made. Even otherwise also the so-called seized documents which are placed at page 59 of A-10 is seized from the corporate office of M/s. Hindustan Aqua Ltd. at 1010, 10th Floor, Vijaya Building, Barakhamba Road, New Delhi. Referring to the decision of the coordinate Bench of the Tribunal in the case of other 34 group assessees, he drew the attention of the Bench to the following observati....

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....he IT Act which were duly complied with by furnishing the requisite information. The assessee has furnished the financials of the investing entities. Merely stating that the income declared by the investors is less than the investment made by them cannot be the criteria for making the addition u/s. 68 of the Act, especially when the investor companies have sufficient funds available with them. He submitted that since the ld. CIT(A) has passed a very detailed order deleting the addition made by the AO u/s. 68, therefore, the same should be upheld. 19. The ld. DR, on the other hand, heavily relied on the order of the AO. He submitted that the statement recorded on oath has got evidentiary value. He submitted that the AO, in the instant case has proved that the identity and credit worthiness of the parties and the genuineness of the transaction regarding the amount of Rs. 1,65,00,000/- received towards share capital and share application money by the assessee company from several entities are bogus, non-existent paper entities having no worth business to advance such huge share capital and share application money. Therefore, the assessee has miserably failed to prove all the three in....

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....addition made and, therefore, in absence of any specific incriminating material qua the addition no addition is tenable u/s. 153A of the Act. He submitted that the Tribunal has already decided the issue considering all the arguments advanced by the ld. DR. Therefore, in absence of any incriminating material found during the course of search, no addition can be made. 22. We have considered the rival arguments made by both the sides, perused the orders of the AO and the CIT(A) and the paper book filed on behalf of the assessee. We have also considered the various decisions cited before us. We find, the AO in the instant case, on the basis of pre-search enquiries, search and post search inquiries conducted and statement recorded of various persons u/s. 132(4) and section 131 of the IT Act, 1961 made addition of Rs. 1,65,00,000/- on account of unexplained share capital and share application money in the hands of the assessee u/s. 68 of the IT Act on the ground that the assessee failed to substantiate with cogent evidence to his satisfaction regarding the identity and credit worthiness of the five investor companies and genuineness of the transaction. We find, the ld. CIT(A) deleted th....

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....tually incorrect. We find, the ld. CIT(A) at para 5.2 (page 28) of his order has observed as under:- "......Though the appellant has stated to have recorded all the transactions under appeal in its books of accounts and offered all the necessary and relevant proof thereof as such. Since the assessment proceedings were pending at the time of search and was abated, the legal ground objected as such by the appellant was not valid as such the same is bound to be rejected. These being primary and basic the legal ground going to the root of the assessment, it is necessary to examine the nature of incrimination material conferring upon the AO necessary jurisdiction u/s. 153A to utilize such material arising consequent to the search operation. The material so found and seized and thereafter relied upon and utilised thereon in the assessment of assessee leading the AO to conclude that the share application/capital received by the appellant are unexplained. 23.1. Therefore, the findings of ld. CIT(A) that assessment proceedings were pending at the time of search and was abated is factually incorrect. 24. We find, identical issue had come up before the coordinate Bench of the Tribunal in ....

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....ring the course of search and addition has been made on the basis of post-search enquiry and on the basis of statements recorded u/s. 132(4) of the I.T. Act, therefore, the same cannot constitute incriminating material so as to enable the Assessing Officer to assume jurisdiction u/s. 153A of the I.T. Act. 45.1 So far as the finding given by the ld. CIT(A) that share certificates and counterfoils thereof were found which, according to him, is incriminating in nature, it is the submission of the ld. Counsel that in a corporate office the company is required to keep the share certificates and, therefore, the same cannot be construed as incriminating in nature. So far as the seized document showing details of certain cash flow is concerned, it is the submission of the ld. Counsel that the said document was found and seized from the corporate office of M/s. Hindustan Aqua Ltd., at 1010, Vijaya Building, Barakhamba Road, New Delhi, which is a flow chart and is not incriminating in nature. Further, it is also his submission that the said document was seized from third party premises in respect of other concerns/other assessees and, therefore, addition, if any, could have been made u/s. ....

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....s of advance for purchase of shares or refund of share application money in our opinion cannot be construed as incriminating since the entries are duly recorded in the books of account. The AO nowhere has disputed or challenged the above submission of the assessee before him as appears at page 43 of the assessment order. Therefore, once the entries are recorded in the books of account, the same in our opinion cannot be construed as incriminating in nature. So far as statements u/s. 132(4) is concerned, the same are also not incriminating in nature as held in various decisions. Under these circumstances, we are of the considered opinion that when the addition is not based on any incriminating material found as a result of search, no addition can be made u/s. 153A/143(3) of the Act. 47. We find, identical issue had come up before the Tribunal in assessee's own case for A.Y. 2013-14. We find, the Tribunal vide ITA No. 7374/Del/2017, order dated 7th June, 2018 for A.Y. 2013-14, while deciding the validity of assessment u/s. 153/143(3) in absence of any incriminating material has observed as under:- "35. Before deciding the issue on merit, we would first like to decide the legal....

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....in the submissions of the ld. counsel for the assessee that the addition made by the Assessing Officer u/s. 68 of the I.T. Act is not based on any incriminating material and is based on statements recorded during search u/s. 132(4) and post-search enquiries. 38. The Hon'ble Delhi High Court in the case of CIT vs. Best Infrastructure (India) (P) Ltd. reported in 397 ITR 82 has held that statements recorded u/s. 132(4) of the I.T. Act do not by themselves constitute incriminating material. The relevant observation of the Hon'ble High Court reads as under:- "38. Fifthly, statements recorded under Section 132 (4) of the Act of the Act do not by themselves constitute incriminating material as has been explained by this Court in Commissioner of Income Tax v. Harjeev Aggarwal (supra). Lastly, as already pointed out hereinbefore, the facts in the present case are different from the facts in Smt. Dayawanti Gupta v. CIT (supra) where the admission by the Assessees themselves on critical aspects, of failure to maintain accounts and admission that the seized documents reflected transactions of unaccounted sales and purchases, is nonexistent in the present case. In the said case, th....

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....do not have any hesitation to hold that the statement under section 132(4) of Sh. Sampat Sharma cannot be treated as incriminating material found during the course of search. In the result, we hold that addition of share capital in the year under consideration has been made without relying on any incriminating material found during the course of search." 41. In the light of the above decisions, statements recorded u/s. 132(4) of the I.T. Act, 1961 cannot constitute as incriminating material. 42. As mentioned earlier, the addition of Rs. 11,85,00,000/- was not made on the basis of any incriminating material but is based on statements recorded during the search u/s. 132(4) and post-search enquiries. It has been held in various decisions that completed assessments cannot be disturbed u/s. 153A in absence of any incriminating material. 43. The Hon'ble Delhi High Court in the case of Kabul Chawla reported in 380 ITR 573 has held that the completed assessment can be interfered with by the Assessing Officer while making the assessment u/s. 153A only on the basis of some incriminating material found on or during the course of search or requisition of documents or undisclosed inco....

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.... adjudicated being academic in nature." 48. We find, the Hon'ble Delhi High Court in the case of PCIT vs. SMC Power Generation Ltd., ITA 406/2019, order dated 23rd July, 2019, copy of which is placed at pages 429 to 432 of the paper book, has observed as under:- "3. The question sought to be raised by the Revenue is whether the ITAT was justified in quashing the assessment order framed under Section 153A of the Income Tax Act, 1961 (Act) on the ground that there is no incriminating material found qua the addition made on account of share application money in the course of the search? 4. The facts in brief are that a search and seizure operation under Section 132 of the Act was initiated in the case of the SMC Group on 4th August, 2011. Thereafter a notice dated 11th January, 2013 under Section 153A of the Act was issued to the Assessee to file return of income for the relevant year. The allegation was that the Assessee had not established the genuineness, identity and creditworthiness of the three entities from whom it had received share premium in the sum of Rs. 3.00 crore, Rs. 35 lakhs and Rs. 2.65 crores during the AY in consideration. In the assessment order dated 31s....

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....n documents wise with the assessment years for which the addition was sought to be made. 10. The requirement that the incriminating material to have the co-relation to the particular addition sought to be made is a logic that will hold good not only for Section 153C of the Act but in relation to Section 153A of the Act as well. Consequently, this Court does not find any error having been committed by the ITAT in accepting the plea of the Assessee that there is no incriminating document which was seized in the course of search relating to the addition sought to be made on account of the share capital. Therefore, the jurisdictional requirement of Section 153A of the Act was not satisfied." 49. We find, the coordinate Bench of the Tribunal in the case of ACIT vs. Versatile Polytech P. Ltd. vide ITA No. 2257/Del/2018 and ITA No. 1088/Del/2018 for A.Y.s 2009-10 and 2014-15 respectively, vide order dated 15th March, 2019, has held that no addition can be made u/s. 153A in absence of any incriminating material found during the course of search. The relevant observation of the Tribunal from para 20 onwards read as under:- "20. We have considered the rival arguments made by both the s....

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.... It is an admitted fact that the original return of income was filed on 12.09.2013 which was accepted u/s. 143(1) vide intimation dated 18.04.2014. The period for issue of notice u/s. 143(2) expires on 30.09.2014 i.e. the notice u/s. 143(2) could not have been served on the assessee after the expiry of six months from the end of the financial year in which the return is furnished. Therefore, in absence of issue of any notice u/s. 143(2) and since no other proceedings are pending, therefore, it had attained the finality much prior to the date of search on 28.03.2015. Under these circumstances, the finding of the ld. CIT(A) that the assessment proceedings were pending at the time of search and was abated is factually incorrect. 36. We find the ld. CIT(A) at para 5 page 11 of his order has observed as under:- "The basis of addition as taken by the A.O. was statement recorded of Shri Sanjeev Agarwal during the course of search wherein he has surrendered an amount of Rs. 88.52 crore out of which a sum of Rs. 30.78 crores were referred to for the assessment year 2008-09 and rest of amount was non descriptive and vague and was surrendered subject to cross checking of the facts and to ....

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....eet Singh contained any such admission. 39. For all the aforementioned reasons, the Court is of the view that the ITAT was fully justified in concluding that the assumption of jurisdiction under Section 153A of the Act qua the Assessees herein was not justified in law." 39. We find the Hon'ble Delhi High Court in the case of CIT vs. Harjeev Aggarwal reported in 290 CTR 263 has observed as under:- "23. It is also necessary to mention that the aforesaid interpretation of Section 132(4) of the Act must be read with the explanation to Section 132(4) of the Act which expressly provides that the scope of examination under Section 132(4) of the Act is not limited only to the books of accounts or other assets or material found during the search. However, in the context of Section 158BB(1) of the Act which expressly restricts the computation of undisclosed income to the evidence found during search, the statement recorded under Section 132(4) of the Act can form a basis for a block assessment only if such statement relates to any incriminating evidence of undisclosed income unearthed during search and cannot be the sole basis for making a block assessment." 40. The Co-ordinate B....

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.... Meeta Gutgutia reported in 395 ITR 526 has taken a similar view and has held that once the assessment has attained finality for a particular year i.e. it is not pending then the same cannot be subject to tax in proceedings u/s. 153A of the I.T. Act. This of course would not apply if incriminating materials are gathered in the course of search or during the proceedings u/s. 153A which are contrary to and/or nor disclosed during the regular assessment proceedings. 44. The Hon'ble Delhi High Court again in the case of Pr. CIT vs. Lata Jain reported in 384 ITR 543 has held that in absence of any incriminating material found as a result of search, assumption of jurisdiction u/s. 153A was not in accordance with law. The various other decisions relied on by the ld. counsel for the assessee also supports his case. The Hon'ble Supreme Court in the case of CIT vs. Sinhgad Technical Education Society reported in 397 ITR 344 has upheld the decision of Hon'ble Bombay High Court wherein the Hon'ble High Court had upheld the decision of the Tribunal holding that the incriminating material which was seized has to pertain to the assessment years in question and it is an undispute....

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.... investor and the genuineness of the transaction with cogent evidence. According to the Assessing Officer, since the assessee could not produce the investor company and since its returned income is meager considering the huge investment made by it in the shares of the assessee company with huge premium, therefore, the provisions of section 68 are clearly attracted. 37. Ld. CIT(A) also upheld the action of the Assessing Officer on merit in the appeal preferred by the assessee. He has also dismissed the ground raised by the assessee challenging the validity of assumption of jurisdiction u/s. 153A in absence of any incriminating material found during the course of search. Ld. CIT(A) alternatively also held that the addition is sustainable on account of mischief of provisions of section 56(2)(viib) read with Rule 11UA(1)cb, the reasons for which have already been reproduced in the preceding paragraph. 38. It is the submission of the ld. AR that the original return was filed on 26.09.2013 declaring income at Rs. 1,84,981/- which was assessed u/s. 143(1) of the Act. He further submitted that the period for issue of notice u/s. 143(2) expired by 30.9.2014 since such notice cannot be s....

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.... within two months from the date of original statement. Though the appellant has stated to have recorded all the transactions under appeal in its books of account and offered all the necessary and relevant proof thereof as such. Since the assessment proceedings were pending at the time of search and was abated, the legal ground objected as such by the appellant was not valid as such the same is bound to be rejected......" 41. At this juncture reference to the case law relied upon by the Ld. AR becomes necessary. In CIT vs. Best Infrastructure (India) (P) Ltd. reported in 397 ITR 82 the Hon'ble jurisdictional High Court has held that statements recorded u/s. 132(4) of the Act do not by themselves constitute incriminating material, with the following observations:- "38. Fifthly, statements recorded under Section 132 (4) of the Act of the Act do not by themselves constitute incriminating material as has been explained by this Court in Commissioner of Income Tax v. Harjeev Aggarwal (supra). Lastly, as already pointed out hereinbefore, the facts in the present case are different from the facts in Smt. Dayawanti Gupta v. CIT (supra) where the admission by the Assessees themselves....

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....a). In such facts and circumstances, respectfully following the decision of the Hon'ble Delhi High Court in the case of best infrastructure (India) private limited (supra), we do not have any hesitation to hold that the statement under section 132(4) of Sh. Sampat Sharma cannot be treated as incriminating material found during the course of search. In the result, we hold that addition of share capital in the year under consideration has been made without relying on any incriminating material found during the course of search." 44. In the light of the above decisions, statements recorded u/s. 132(4) of the Act, 1961 cannot constitute as incriminating material. 45. In this context, it could be seen from the order of the ld. CIT(A) that there was no surrender of income for the impugned assessment year and the surrender was only for the assessment year 2008-09 which too was retracted within two months. He has also observed that the statement was non descriptive and vague and subject to cross checking of fact to be explained after access to books of accounts. We, therefore, find merit in the submissions of the ld. counsel for the assessee that the addition made by the Assessing ....

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.... establish any co-relation, document-wise, with these four assessment years. 50. Since in the instant case addition of Rs. 39 lacs was made on the basis of statements recorded u/s. 132(4) and post-search enquiry and no incriminating material was found/seized during the course of search, therefore, following the decisions cited (supra), we hold that no addition could have been made u/s. 153A since the assessment was not abated in the instant case. In view of the above, we hold that the ld. CIT(A) was not justified in upholding the action of the Assessing Officer in assuming jurisdiction u/s. 153A of the Act. Accordingly, the addition made by the Assessing Officer and upheld by the ld. CIT(A) in the 153A assessment proceedings being void ab-initio are deleted. 51. Inasmuch as the assessee succeeds on the legal ground, we deem it not necessary to delve deeper into the arguments made by the ld. counsel for the assessee on merit since such adjudication would be academic in nature." 49.2 In view of the above discussion, we are of the considered opinion that since the addition is not based on any incriminating material found during the course of search, therefore, such assessments f....

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....s on account of non-deduction and short deduction of tax at source and addition on account of personal expenditure. In the result, we reverse the order of the learned CIT - A income from the above disallowances and allow the appeal of the assessee to these extent. " The Assessing Officer, while passing the assessment order, has not clearly stated as to what is the incriminating material on the basis of which the additions were sought to be made. The co-relation between the so-called incriminating material - which has not even been disclosed, and the additions made, should have been established by the Assessing Officer, which had not been done. In these circumstances, in our view, no substantial question of law arises for our consideration. Dismissed." 49.3 In view of the above discussion, we allow the ground of cross objection No. 1 and hold that since no incriminating material was found as a result of the search conducted on the assessee, therefore, the notice issued for initiation of proceedings u/s. 153A and the assessment framed subsequently are without jurisdiction and deserves to be quashed. We hold and direct accordingly." 25. Since in the instant case, the addition....