TaxTMI 
TaxTMI 
2022 (3) TMI 521
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....ved in all these appeals ( except in ITA No. 149/JP/2020 for the assessment year 2012-13 wherein facts in respect of Ground No. 2 is slightly different, which we will deal separately), therefore all these five appeals filed by the revenue are clubbed together for the purpose of hearing and disposal. For the sake of convenience, we take up the appeal in ITA No. 753/JP/2019 as a lead case for the purpose of recording the facts and adjudication of the dispute and it will cover all the issues involved in the rest of the appeals. In ITA No. 753/JP/2019, the revenue has raised the following grounds :- " 1. Whether on the facts and in the circumstances of the case the CIT (A) was right in deleting the addition of Rs. 2,83,12,308/- u/s 68 of the I.T act, 1961 made by the AO on account of bogus LTCG which was claimed by the assessee as exempt income u/s 10(38) of the IT Act. 2. Whether on the facts and in the circumstances of the case the CIT (A) was right in deleting the addition of Rs. 2,83,123/- u/s 69C of the IT Act, 1961 made by the AO on account of unexplained commission expenditure for taking bogus accommodation entry in the form of LTCG. 3. Whether on the ....
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....at the assessee is an Individual deriving income from house property, capital gain and other sources. The assessee filed her return of income under section 139(1) of the Income Tax Act, 1961 on 12.01.2012 declaring total income of Rs. 14,85,740/- and claimed an exempt income of Rs. 2,83,12,308/- under section 10(38) of the IT Act, 1961 being Long Term Capital Gain from sale of 10,000 equity shares having face value of Rs. 10/- each and 3,00,000 shares of face value of Rs. 1/- each of Splash Media & Infra Ltd. The assessee acquired the said 10,000 shares on 23.04.2009 on on-line transaction in recognized stock exchange through Marverik Share Brokers Pvt. Ltd. @ Rs. 70.65 per share plus STT and brokerage etc having total cost of Rs. 7,07,535/-. The payment of above cost of shares amounting to Rs. 7,07,535/- was made through cheque encashment of which appears in bank statement of assessee. This total cost to assessee Rs. 7,07,535/- of the said shares was declared by assessee in the year of acquisition having shown the said investment in his books of accounts and in Balance Sheet as on 31.03.2010. These shares were dematerialized on 23.05.2009 and appear in Dmat Statement with Marveric....
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....for which Authorized Officer suspected that these shares were purchased at a very low price and sold at very high price. The Authorized Officer further opined that looking to profits of these companies their net worth are much less and therefore in such short term price of shares of these companies cannot jump so high and also apprised the assessee with information received from Income Tax Investigation Wing of Kolkata in relation to some share transactions as dubious and asked explanation from Shri Bitthal Das Parwal about high profit on sale of the above shares. Shri Bitthal Das Parwal in statement recorded in course of search gave his statement which is reproduced on page 3-5 of the assessment order wherein he admitted the said income from capital gain as his undisclosed income for current year from real estate transactions used in obtaining said LTCG exempt under section 10(38) and surrendered the same for tax stating the same is made voluntarily to buy peace of mind. The said averment was again reaffirmed by Shri Bitthal Das Parwal in proceedings under section 131 in statement recorded on 13.01.2016 and by filing affidavit by Bitthal Das Parwal on 20.04.2016. Thereafter assess....
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....(A) considered the submissions of the assessee and after detailed discussion deleted the additions by allowing the appeal of the assessee on both legal as well as on merit, placing reliance on the judgments of Hon'ble Delhi High Court in case of Kabul Chawla vs ACIT, 380 ITTR 573 (Del.), Hon'ble Bombay High Court in case of All Cargo Global Logistic Ltd. vs. DCIT, orders of ITAT, Jaipur Bench in case of Kota Dal Mill vs. DCIT in ITA Nos. 997 to 1002/JP/2018 & 1119/JP/2018 and various other recent decisions. The ld. CIT (A) also placing reliance on various other judgments of Hon'ble Rajasthan High Courts in case of PCIT vs. Pamod Jain & Others in DBIT Appeal No. 209/2018 dated 24.07.2018 (Raj.) and CIT vs. Smt. Pooja Agarwal in DBIT Appeal No. 385/2011 dated 11.09.2017 (Raj.) and CIT vs. Smt. Sumitra Devi, 102 DTR 0342 (Raj.) observed that the action of the AO in denying the claim of exemption under section 10(38) of the IT Act is not tenable, the addition is thus directed to be deleted. Aggrieved by the order of ld. CIT (A), the revenue has filed the present appeals before us. 3. Before us, the ld. CIT D/R submitted that the assessments were completed under section 153A of the I....
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....ing officer has grossly erred in law in completing assessment u/s 153A r.w.s. 143 (3) of the I. T. Act, 1961 even when no incriminating material whatsoever found in course of search which could suggest any undisclosed income so as to initiate proceedings u/s 153A of the Act. In this regard, it is submitted that no document/loose paper was found / seized during the course of search at the business / residential premises of the assessee indicating any on money receipt/investment/advances made and any unexplained/overstated expenditure etc. in its books of account pertaining to the year under appeal thus the mode and manner of the additions made in the orders passed u/s 153A deserves to be held bad in law. The reading of provisions of section 153A would reveal that the time limit for issuance of notice u/s 143 (2) stood expired for the year under appeal and therefore, no assessment was pending at the time when search was conducted in this case and therefore additions, if any, to be made via assessment u/s 153A would be restricted to incriminating documents found during the course of search. In other words, no routine additions would be permitted to be made having no nexus with documen....
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....re than one place in the Section and a harmonious construction of the entire provision would lead to an irresistible conclusion that the word 'assess' has been used in the context of an abated proceedings and word "reasons" has been used for completed assessment proceedings, which would not abate as they are not pending on the date of initiation of the search or making of requisition and which would also necessarily support the interpretation that for the completed assessments, the same can be tinkered only based on the incriminating material found during the course of search or requisition of documents. There are various recent decisions on the issue that there can be no addition in respect to completed assessment if no incriminating material found during the course of search namely : - Jai Lokenath Oil Extraction P. Ltd. Vs. DCIT (2017) 166 ITD 161 (Kol - ITAT). CIT Vs. Deepak Kumar Agarwal (2017) 251 Taxman 22 (Bombay H.C.). Ratan Kumar Sharma Vs. DCIT (ITAT - JPR ITA No. 797/JP/2014 order dated 25-7-1). Recently Hon'ble Supreme Court vide order dated 02-07-2018 in Meeta Gutgutia Vs Pr. CIT (96 Taxmann.Com 468) have held that Invocation of ....
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....u/s 132(4) or u/s 131 is not sufficient to make an addition. A statement made must be relatable to incriminating material found during the course of search or the statement must be relatable to material by subsequent inquiry/investigations. The Hon'ble Rajsthan High Court in the case of Mantri Share Brokers P Ltd. (96 Taxmann.Com 279) have held as under:- Section 69B of the I T Act, 1961- Undisclosed Investment (burden of proof)- Whether where except statement of Director of assessee company offering additional income during survey in his premises, there was no other material either in form of cash, bullion, jewellery, or documents or in any other form to conclude that statement made was supported by some other documentary evidence, said sum could not be added in hands of assessee as undisclosed investments- Held, Yes [ Paras 10-11] [ In favour of assessee] The Hon'ble ITAT, Jaipur Bench, Jaipur in the case of M/s Kota Dal Mill Vs DCIT, CCKota in appeal no. ITYA 997 to 1002/JP/2018 & 1119/JP/2018 (Order dated 31-12-2018) the aspect of search and survey on the entry operators based in Kolkata and the addition based on the statement of entry operators is dealt with and de....
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....e four assessment years were not pending on the date of search, therefore, it is manifest from the record that during the course of search and seizure under section 132 of the Act in the case of the assessee no material much less the incriminating material was unearthed or any undisclosed income which was not disclosed in the books of accounts was detected or found. The only incriminating material which was referred by the AO is pages 21 to 26 of Annexure AS-1 in respect of long term capital gain earned by Shri Rajendra Agarwal and his family members. The said long term capital gain was disclosed by Shri Rajendra Agarwal in his statement under section 132(4) and, therefore, it was surrendered and offered to tax by Shri Rajendra Agarwal and his family members in the year of search. The AO himself has not made any addition in the hand of the assessee on account of long term capital gain which was found during the course of search and seizure. Thus, except the material disclosing the long term capital gain in the hand of Shri Rajendra Agarwal, no other incriminating material either found or referred or is the basis of the addition made by the AO while framing the assessment under sect....
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....ment years 2010-11 to 13-14 are not sustainable and accordingly the same are liable to be deleted. We order accordingly. Thus the crux of the above decision is that in case of completed assessment as on the date of search u/s 132(1) of the act no addition can be made unless there is 'incriminating seized material found & seized during the course of search'. The statement of entry operator cannot be considered as incriminating seized material found during the course of search." Regarding statement of alleged entry operator Shri Anuj Aggarwal, it is submitted that nowhere in the statement Anuj Aggarwal has given specifically name of appellant nor has stated specifically that the cash from appellant was given to him or equivalent amount of cash was given which was rotated/routed and given in the form of accommodation entries in the form of LTCG. The statement of Anuj Agarwal was merely a piece of information. Further even the discussion by the AO about dubious financials of the penny stock company or reference to the report of SIT extracts of which forms part of the assessment order are indicative and are of the nature of information. The AO has also referred to the interi....
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....g channel and there is no payment in cash. Further, the shares were dematerialized in the Demat account of the assessee and therefore, holding of the shares by the assessee since the year 2009 cannot be disputed. The evidences produced by the assessee are not the documents prepared by the assessee but all these evidences are third party evidence including the bank statement and Demat account. Therefore, once the assessee has produced the evidence in support of the claim of genuineness of the transaction then in the absence of any contrary evidence to disprove the documentary evidence produced by the assessee, the AO cannot treat these transactions as bogus accommodation entries merely on the basis of some statements recorded by the Investigation Wing of the Department of the alleged persons involved in providing accommodation entries. The ld. A/R has further submitted that these are not penny stocks but the initial purchases of shares of M/s. Splash Media & Infra Ltd. were made by the assessee against the consideration of Rs. 70.65 per share. During the course of assessment proceedings the assessee submitted the complete detail of chain along with supporting documents with regard t....
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....he benefit of exemption u/s 10(38) of Act three requirement needs to be fulfilled. First the share should be held for more than 1 years. Secondly it should be listed and sold on recognized stock exchange and thirdly on the said sale necessary security transaction tax (STT) has been paid. In support of fulfillment of all ingredients please find copy of bills and ledger copy as per Expenses- 'E' for your honour's perusal and consideration. As per above provisions of law for claiming the benefit of exemption u/s 10(38) of I. T. Act, 1961 following three requirement needs to be fulfilled. First - The shares should be held for more than 1 year. Secondly - It should be listed and sold on recognized stock exchange and Third - On sale of shares necessary security Tax (STT) has been paid. The fulfillment of all the above three ingredients in assessee's case are verifiable from the above said documents filed before your honours. 5.3. The ld. A/R further submitted that Finance Act, 2017 amended section 10 (38) of the Income-tax Act, 1961 w.e.f. 1-4-2018 (A.Y. 2018-19) stating that long term capital gains from transfer of listed equity shares ....
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....and it is submitted that the Hon'ble Supreme Court has held that the suspicion or presumption howsoever strong it may appear to be to true needs to be corroborated by some evidence to establish a link that the assessee has brought back his unaccounted income in form of Long Term Capital Gain. The reliance is also placed upon the decision of ITAT Mumbai Special Bench in case of GTC Industries Vs. ACIT 164 ITD 1. These principals enunciated by the Apex Court/High Courts have been followed by various Tribunals. In this regard the notable cases are DN Kamani (HUF) v. Dy. CIT [1999] 70 ITD 77 (Pat.) (TM), Pooja Bhatt v. Asstt. CIT [2000] 73 ITD 205 (Mum.) and Aishwarya K. Rai v. Dy. CIT [2007] 104 ITD 166 (Mum.) (TM). Thus it is contended that in case of the assessee, there is no direct evidence brought on record by the A.O. to hold that the assessee introduced his own unaccounted money by way of bogus long term capital gain and also there is no evidence whatsoever on record that assessee paid cash to obtain LTCG. 5.5. The ld. A/R submitted that the Ld. A.O. only on the basis of report of Investigation Wing of department at Kolkata is holding the transaction of sale of said share....
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....he Revenue. Thus such reports of SEBI or STT cannot be attributed to assessee without any material or evidence that assessee also followed the same modus operandi. Therefore, merely on the basis of SEBI orders, share transactions cannot be considered as ingenuine/sham and, therefore, the sale proceeds of such share transactions cannot be taxed under section 68 of the Act. 5.7. It is settled rule of law that any malpractice, like that of selling by short measures (Hira Bai Vs. CIT 4 ITR 95) or charging price in excess of the controlled price (Sivan Vs. CIT 34 ITR 328, CAG. IT Vs. Cherian 117 ITR 371) or selling smuggled goods (Lal Chand Vs. CIT 37 ITR 288 (SC) etc. cannot be attributed in general to the assessee that he followed such practice. The ordinary presumption of law is that apparent state of affairs is real unless the contrary is proved (Kalva Vs. Union of India 49 ITR 165 (SC), CIT Vs. Daulat Ram 87 ITR 349, 360-61 (SC). The presumption is in favour of good faith and non-concealment of income and the initial burden of finding some material in support of finding of concealed income is on department (CIT Vs. Swami 241 ITR 363). 5.8. Further in course of assessment proc....
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.... with by the Adjudicating Authority. As far as the Tribunal is concerned, we find that rejection of this plea is totally untenable. The Tribunal has simply stated that crossexamination of the said dealers could not have brought out any material which would not be in possession of the appellant themselves to explain as to why their expenses-factory prices remain static. It was not for the Tribunal to have guess work as to for what purposes the appellant wanted to cross-examine those dealers and what extraction the appellant wanted from them. 7. As mentioned above, the appellant had contested the truthfulness of the statements of these two witnesses and wanted to discredit either testimony for which purpose it wanted to avail the opportunity of cross-examination. That apart, the Adjudicating Authority simply relied upon the price list as maintained at the depot to determine the price for the purpose of levy of excise duty. Whether the goods were, in fact, sold to the said dealers/witnesses at the price which is mentioned in the price list itself could be the subject matter of cross-examination. Therefore, it was not for the Adjudicating Authority to presuppose as to what cou....
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.... u/s 132 (4) and statement in post search proceedings was obtained under pressure and duress in mental disturbed condition to which assessee admitted just to buy peace and avoid litigation even though when all the necessary and proper documents in support of transaction(s) of LTCG were available and transaction was properly done in accordance with law and through banking channel. The CBDT vide instruction No. F. 286/2/2003 - IT Inv. Dated March 10, 2003 issued instructions reiterating that there should be focus and concentration on collection of evidence of income which leads to information on what has not been disclosed or is not likely to be disclosed and no attempt should be made to obtain confession as to the undisclosed income as this does not serve any useful purpose since such confessions, if not based upon credible evidence, are later retracted by the concerned assesses while filing returns of income. 5.12. It is settled law that the assessee has right to retract the statement given if it remains unproved from any cogent material and is rather not supported with corroborative material and evidences. Where there is a specific ground taken for retracting a statement, that ....
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....wever, counsel for the respondent has taken us to the order of CIT (A) and also to the order of Tribunal and contended that in view of the finding reached, which was done through Stock Exchange and taking into consideration the revenue transactions, the addition made was deleted by the Tribunal observing as under: - "Contention of the AR is considered. One of the main reasons for not accepting the genuineness of the transactions declared by the appellant that at the time of survey the appellant in his statement denied having made any transactions in shares. However, subsequently the facts came on record that the appellant had transacted not only in the shares which are disputed but shares of various other companies like Satyam Computers, HCL, IPCL, BPCL and Tata Tea etc. Regarding the transactions in question various details like copy of contract note regarding purchase and sale of shares of Limtex and Konark Commerce & Ind. Ltd., assessee's account with P. K. Agarwal & Co. share broker, company's master details from registrar of companies, Kolkata were filed. Copy of depository a/c or demat account with ALankrit Assignment Ltd., a subsidiary of NSDL was also file....
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....re non genuine. Considering all these facts the share transactions made through Shri P.K. Agarwal cannot be held as non-genuine. Consequently denying the claim of short term capital gain made by he appellant before the A.O. is not approved. The A.O. is therefore, directed to accept claim of short term capital gain as shown by the appellant." 5.15. The Hon'ble Jurisdictional High Court of Rajasthan and Hon'ble ITAT, Jaipur have given judgment in the case of PCIT Vs. Pramod Kumar Jain & Others (DB Appeal No. 209/2018 dated 24-07-2018 (Raj) which are directly on the issue. In this case the Hon'ble ITAT after relying on the decision of Hon'ble Rajasthan High Court in case of CIT Vs Smt. Pooja Agarwal and various other decisions deleted the addition made by the AO by holding as under:- " In view of the above facts and circumstances of the case , we are of the considered opinion that the addition made by the AO is based on mere suspicion and surmises without any cogent material to show that the assessee has brought back his unaccounted income in the shape of long term capital gain. On the other hand, the assessee has brought back all the relevant material to substantiate its ....
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....fort. The payment for the shares in question was made by Sh. Salasar Trading Company. Notice was issued to this entity as well, but when the notices were returned unserved, the AO did not take the matter any further. He thereafter simply proceeded on the basis of the financials of the company to come to the conclusion that the transactions were accommodation entries, and thus, fictitious. The conclusion drawn by the AO, that there was an agreement to convert unaccounted money by taking fictitious LTCG in a pre-planned manner, is therefore entirely unsupported by any material on record. This finding is thus purely an assumption based on conjecture made by the AO. This flawed approach forms the reason for the learned ITAT to interfere with the findings of the lower tax authorities. The learned ITAT after considering the entire conspectus of case and the evidence brought on record, held that the Respondent had successfully discharged the initial onus cast upon it under the provisions of Section 68 of the Act. It is recorded that "There is no dispute that the shares of the two companies were purchased online, the payments have been made through banking channel, and the shares were dema....
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....s own specific facts. The above-stated cases, thus, are of no assistance to the case sought to be canvassed by the Revenue. 13. The learned ITAT, being the last fact-finding authority, on the basis of the evidence brought on record, has rightly come to the conclusion that the lower tax authorities are not able to sustain the addition without any cogent material on record. We thus find no perversity in the Impugned Order. The ld. A/R also placed reliance on the following judgments on the issue. 1. The jurisdiction High Court in case of CIT Vs. Sumitra Devi (2014) 49 taxmann.com 37 (Raj.) held that since the A.O. had failed to show that material documents placed on record by assessee like brokers note, contract not, relevant extract of cash book, copies of share certificates, demat statements etc. were false, fabricated or fictitious, transaction of purchase and sale of shares could not be treated as non-genuine. 2. The decisions of the Hon'bleCalcutta High Court in the case of CIT - Vs Carbo Industrial Holdigns Ltd. (244 ITR 422) and CIT - Vs - Emerald Commercial Ltd. (250 ITR 549) are relevant to the issue where the Hon'ble High Court has held ....
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....finding had been rendered in respect of the direct material evidence placed on record in respect of its transactions. The addition under section 68 was not justified and therefore, A.O. was directed to accept the LTCG income shown as exempt under section 10 (38). 6. In the case of Pavillion Commercial Pvt. Limited Vs. I.T.O. Ward 5(2)/Kolkata ITA No. 935/Kol/2012 date of pronouncement 12/08/2016 held that we find that the transactions were complete in terms of documentation and there was no defect in the papers submitted by the assessee in support of the transactions. We also find that there wre entries for the sale purchase of the shares in the bank statements, contract notes, demat account of the assessee. In our considered view we find that the assessee has proved the transaction on the basis of documents and therefore the suspension of the broker by SEBI will not hold the transaction invalid. 7. I.T.O. vs. Indravadan Jain (HUF) (ITAT Mumbai) - 27/05/2016 Held: merely because the investigation was done by SEBI against broker or his activity, assessee cannot be said to have entered into ingenuine transaction, in so far as assessee is not concerned with ....
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....sessee produced all relevant evidence to substantiate transaction of purchase, dematerialization and sale of shares, same could not be held as bogus LTCG transactions merely on basis of report of Investigation Wing, wherein there was a general statement of providing bogus long term capital gain transactions to clients without stating anything specifically about transaction of purchase and sale of shares by assessee - Held, yes [Paras 8 and 10] [In favour of assessee] 10. Hon'ble Delhi ITAT in the case of Smt. Karuna Garg Vs ITO- 39(4), Delhi held that where assessee declared long term capital gain on sale of shares but Assessing Officer made section 68 addition in hands of assessee on basis of investigation wing report that assessee was beneficiary of accommodation entries, without conducting separate and independent enquiry, since shares were dematerialized and sales had been routed from de-mat account and consideration had been received through banking channels, assessee had successfully discharged onus cast upon him by provisions of section 68. 11. The Hon'ble jurisdiction ITAT, Jaipur Bench, Jaipur in case of Meghraj Singh Shekhawat Vs DCIT 443 & 444/JP/20....
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.... that the assessee is an individual & has claimed exempt income of Rs. 4,78,38,157/- under the head Long Term Capital Gains on account of shares. The AO while passing the assessment order under section 143(3) has held that the long term capital gains claimed by the assessee is bogus as the assessee has arranged the accommodation entries from the persons who are engaged in providing bogus accommodation entries of capital gains. The Hon'ble ITAT held that the facts of the present case acquiring of shares M/s. Paridhi Properties Ltd. under private placement directly from the company and Subsequently on merger of the said company with M/s. Luminaire Technologies Ltd. The shares of the new entity were allotted to the assessee which were duly dematerialized and then sold from the Demat account are identical to the case of Shri Pramod Jain & Others vs. DCIT & others. In view of the finding of the Coordinate Bench on the identical issue it was found that when the payment of purchase consideration paid through cheque directly to the company and the subsequent merger of the company as per the scheme of merger approved by the High Court, then the transaction and sale of shares in question can....
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....ns are recorded. The addition is thus wrong and deserves to be deleted. 7. We have heard and considered the rival submissions as well as the relevant material on record. After the search and seizure action under section 132 of the IT Act, 1961 carried out on 07.01.2016 in the case of Dilip Manihar Group in which the assessee was also covered, the AO issued notice under section 153A of the IT Act on 23.08.2016 requiring the assessee to file return of income. In response the assessee filed the return of income on 03.09.2016 declaring total income of Rs. 14,85,740/- as originally returned. In the assessment proceedings, the main issue considered by the AO is only regarding the Long Term Capital Gain declared by the assessee in the original return of income filed under section 139(1) of the IT Act on 12.01.2012 as well as the return of income filed in response to notice under section 153A and claimed the same as exempt under section 10(38) of the IT Act which was questioned by the AO on its genuineness and proposed to treat the same as bogus accommodation entries availed by the assessee. The only basis of questioning the genuineness and treatment of the said amount as accommodation ....
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....f record available in the public domain. Therefore, except the statements as referred by the AO, there is no other material or incriminating material either found during the search or received by the AO even at the time of assessment proceedings. Hence the assessment framed for the assessment year 2011-12 which was not pending at the time of search is falling in the category of reassessment. Therefore, the AO cannot make any addition in the absence of any incriminating material found during the course of search while completing the assessment under section 153A of the IT Act except to reiterate or re-assert the assessment already completed. The Hon'ble Jurisdictional High Court in case of Jai Steel (India) vs. ACIT (supra) while considering an identical issue has held in para 15 to 20 as under :- "15. A plain reading of the above provision would reveal that if a search or requisition is initiated after 31.05.2003, the AO is under an obligation to issue notice to such person, who has been subjected to search/requisition to furnish the return of income of six years immediately preceding the year of search. The AO is then required to assess or reassess total income of the....
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.... or reassessment under the said section has to be read in the context of Sections 132 or 132A of the Act, inasmuch as, in case nothing incriminating is found on account of such search or requisition, then the question of reassessment of the concluded assessments does not arise, which would require more reiteration and it is only in the context of the abated assessment under second proviso which is required to be assessed. 19. The underline purpose of making assessment of total income under Section 153A of the Act is, therefore, to assess income which was not disclosed or would not have been disclosed. The purpose of second proviso is also very clear, inasmuch as, once a assessment or reassessment is 'pending' on the date of initiation of search or requisition and in terms of Section 153A a return is filed and the AO is required to assess the same, there cannot be two assessment orders determining the total income of the assessee for the said assessment year and, therefore, the proviso provides for abatement of such pending assessment and reassessment proceedings and it is only the assessment made under Section 153A of the Act would be the assessment for the said ye....
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....ssment can be reiterated and the abated assessment or reassessment can be made. There are series of decisions on this point wherein this view as taken by the Hon'ble Jurisdictional High Court in case of M/s. Jai Steel (India) vs. ACIT (Supra) is reiterated and reaffirmed. Without multiplying the precedents to avoid the over-burdening of this order, we may refer the decision of Coordinate Bench of this Tribunal in case of Kota Dall Mills vs. DCIT (supra) wherein this Tribunal has dealt with this issue exhaustively in para 6 as under :- " 6. We have considered the rival submissions as well as the relevant material on record. Undisputedly, the assessments for the assessment years 2010-11 to 13-14 were not pending on the date of search on 2nd July, 2015. Even in some of the assessment years orders under section 143(3) were passed and in other cases the assessment was completed under section 143(1) of the Act. Thus the assessments for the assessment years 2010-11 to 13-14 were not got abated by virtue of search under section 132 on 2nd July, 2015 and the AO would reassess the total income of the assessee as per the provisions of section 153A in respect of these four assessm....
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....ave to be computed by the AOs as a fresh exercise. iii. The AO will exercise normal assessment powers in respect of the six years previous 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 assessment orders for each of the six years. In other words there 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". iv. Although Section 153 A 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 the 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 153 ....
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....dition of Rs. 89 lacs made by the Assessing Officer under Section 68 of the Income Tax Act, 1961 ('ACT') on bogus share capital. But, the issue was whether there was any incriminating material whatsoever found during the search to justify initiation of proceedings under Section 153A of the Act. 2. The Court finds that the order of the CIT(Appeals) reveals that there is a factual finding that "no incriminating evidence related to share capital issued was found during the course of search as is manifest from the order of the AO." Consequently, it was held that the AO was not justified in invoking Section 68 of the Act for the purposes of making additions on account of share capital. 3. As far as the above facts are concerned, there is nothing shown to the court to persuade and hold that the above factual determination is perverse. Consequently, after considering all the facts and circumstances of the case, the Court is of the opinion that no substantial question of law arises in the impugned order of the ITAT which requires examination." The SLP filed by the revenue against the said decision of Hon'ble Delhi High Court was dismissed by the Hon'ble S....
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....tly made on the basis of evidence found in the course of the search or other post-search material or Information available with the Assessing Officer which can be related to the evidence found. This, however, does not mean that the assessment under Section 153A 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." 58. In Kabul Chawla (supra), the Court discussed the decision in Filatex India Ltd. (supra) as well as the above two decisions and observed as under: "31. What distinguishes the decisions both in CIT v. Chetan Das Lachman Das (supra), and Filatex India Ltd. v. CIT-IV (supra) in their application to the present case is that in both the said cases there was some material unearthed during the search, whereas in the present case there admittedly was none. Secondly, it is plain from a careful reading of the said two . decisions that they do not hold that additions can be validly made to income forming the subject matter of completed assessments prior to the search even if no incriminating material whatsoever was unearthed during the sea....
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.... out from the scheme of the said provision" which was in the context of search and/or requisition. The Court also explained the purport of the words "assess" and "reassess", which have been found at more than one place in Section 153A of the Act as under: "26. The plea raised on behalf of the assessee that as the first proviso provides for assessment or reassessment of the total income in respect of each assessment year falling within the six assessment years, is merely reading the said provision in isolation and not in the context of the entire section. The words 'assess' or 'reassess'-have been used at more than one place in the Section and a harmonious construction of the entire provision would lead to an irresistible conclusion that the word assess has been used in the context of an abated proceedings and reassess has been used for completed assessment proceedings, which would not abate as they are not pending on the date of initiation of the search or making of requisition and which would also necessarily support the interpretation that for the completed assessments, the same can be tinkered only based on the incriminating material found during the cou....
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....tion 153 A 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 the original assessment and the assessment under Section 153A merges into one. Only one assessment shall be made separately for each AY on the basis of the findings of the search and any other material existing or brought on the record of the AO. vii. Completed assessments can be interfered with by the AO while making the assessment under Section 153 A only on the basis of some incriminating material unearthed during the course of search or requisition of documents or undisclosed income or property discovered in the course of search which were not produced or not already disclosed or made known in the course of original assessment." 61. It appears that a number of High Courts have concurred with the decision of this Court in Kabul Chawla (supra) beginning with the Gujarat High Court in Saumya Construction (P.) Ltd. (supra). There, a search and seizure operation was carried out on 7th October, 2009 and an assessment came to be ....
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....der subsection (1) is annulled in appeal or any other legal provision, then the assessment or reassessment relating to any assessment year which had abated under the second proviso would stand revived. The proviso thereto says that such revival shall cease to have effect if such order of annulment is set aside. Thus, any proceeding of assessment or reassessment falling within the six assessment years prior to the search or requisition stands abated and the total income of the assessee is required to be determined under section 153A of the Act. Similarly, sub-section (2) provides for revival of any assessment or reassessment which stood abated, if any proceeding or any order of assessment or reassessment made under section 153A of the Act is annulled in appeal or any other proceeding. 16. Section 153A bears the heading "Assessment in case of search or requisition". It is "well settled as held by the Supreme Court in a catena of decisions that the heading or the Section can be regarded as a key to the interpretation of the operative portion of the section and if there is no ambiguity in the language or if it is plain and clear, then the heading used in the section strengthen....
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....requisition, namely, in relation to material disclosed during the search or requisition. If in relation to any assessment year, no incriminating material is found, no addition or disallowance can be made in relation to that assessment year in exercise of powers under section 153A of the Act and the earlier assessment shall have to be reiterated. In this regard, this court is in complete agreement with the view adopted by the Rajasthan High Court in the case of Jai Steel (India) v. Asst. CIT (supra). Besides, as rightly pointed out by the learned counsel for the respondent, the controversy involved in the present case stands concluded by the decision of this court In the case of CIT v. Jayaben Ratilal Sorathia (supra) wherein it has been held that while it cannot be disputed that considering section 153A of the Act, the Assessing Officer can reopen and/or assess the return with respect to six preceding years ; however, there must be some incriminating material available with the Assessing Officer with respect to the sale transactions in the particular assessment year.' 62. Subsequently, in Devangi alias Rupa (supra), another Bench of the Gujarat High Court reiterated th....
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....generally try to record the transactions made in respect of purchase, manufacturing and sales in our regular books of accounts but it is also fact that some time due to some factors like inability of accountant, our busy schedule and some family problems, various purchases and sales of Supari, Gutka and other items dealt by our firms is not entered and shown in the regular books of accounts maintained by our firms." 65. Therefore, there was a clear admission by the Assessees in Smt. Dayawanti Gupta (supra) there that they were not maintaining regular books of accounts and the transactions were not recorded therein. 66. Further, in answer to Question No. 11, the Assessee in Smt. Dayawanti Gupta (supra) was confronted with certain documents seized during the search. The answer was categorical and reads thus: "Ans:- I hereby admit that these papers also contend details of various transactions include purchase/sales/manufacturing trading of Gutkha, Supari made in cash outside Books of accounts and these are actually unaccounted transactions made by our two firms namely M/s. Asom Trading and M/s. Balaji Perfumes." 67. By contrast, there is no such sta....
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....r interference. The second question of law is answered again in favour of the revenue and against the assessee." 69. What weighed with the Court in the above decision was the "habitual concealing of income and indulging in clandestine operations" and that a person indulging in such activities "can hardly be accepted to maintain meticulous books or records for long." These factors are absent in the present case. There was no justification at all for the AO to proceed on surmises and estimates without there being any incriminating material qua the AY for which he sought to make additions of franchisee commission. 70. The above distinguishing factors in Smt. Dayawanti Gupta (supra), therefore, do not detract from the settled legal position in Kabul Chawla (supra) which has been followed not only by this Court in its subsequent decisions but also by several other High Courts. 71. For all of the aforementioned reasons, the Court is of the view that the ITAT was justified in holding that the invocation of Section 153A by the Revenue for the AYs 2000-01 to 2003-04 was without any legal basis as there was no incriminating material qua each of those AYs." ....
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....to the AO. It is pertinent to note that the SLP filed by the revenue against the decision of Hon'ble Delhi High Court in case of Principal CIT vs. Meeta Gutgutia was dismissed vide order dated 2nd July, 2018. There are series of decisions on this issue including the decision of Hon'ble Jurisdictional High Court in case of M/s. Jai Steel India vs. ACIT (supra) wherein the Hon'ble High Court has held in para 23 to 30 as under :- "23. The reliance placed by the counsel for the appellant on the case of Anil Kumar Bhatia (supra) also does not help the case of the assessee. The relevant extract of the said judgment reads as under:- "19. Under the provisions of Section 153A, as we have already noticed, the Assessing Officer is bound to issue notice to the assessee to furnish returns for each assessment year falling within the six assessment years immediately preceding the assessment year relevant to the previous year in which the search or requisition was made. Another significant feature of this Section is that the Assessing Officer is empowered to assess or reassess the "total income" of the aforesaid years. This is a significant departure from the earlier block assess....
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....e, the second proviso to subsection (1) of Section 153A says that such proceedings "shall abate". The reason is not far to seek. Under Section 153A, there is no room for multiple assessment orders in respect of any of the six assessment years under consideration. That is because the Assessing Officer has to determine not merely the undisclosed income of the assessee, but also the 'total income' of the assessee in whose case a search or requisition has been initiated. Obviously there cannot be several orders for the same assessment year determining the total income of the assessee. In order to ensure this state of affairs namely, that in respect of the six assessment years preceding the assessment year relevant to the year in which the search took place there is only one determination of the total income, it has been provided in the second proviso of sub-Section (1) of Section 153A that any proceedings for assessment or reassessment of the assessee which are pending on the date of initiation of the search or making requisition "shall abate". Once those proceedings abate, the decks are cleared, for the Assessing Officer to pass assessment orders for each of those six years de....
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....further observations made in the context of de novo assessment proceedings also have to be read in context that irrespective of the fact whether any incriminating material is found during the course of search, the notice and consequential assessment under Section 153A have to be undertaken. 25. The argument of the learned counsel that the AO is also free to disturb income, expenditure or deduction de hors the incriminating material, while making assessment under Section 153A of the Act is also not borne out from the scheme of the said provision which as noticed above is essentially in context of search and/or requisition. The provisions of Sections 153A to 153C cannot be interpreted to be a further innings for the AO and/or assessee beyond provisions of Sections 139 (return of income), 139(5) (revised return of income), 147 (income escaping assessment) and 263 (revision of orders) of the Act. 26. The plea raised on behalf of the assessee that as the first proviso provides for assessment or reassessment of the total income in respect of each assessment year falling within the six assessment years, is merely reading the said provision in isolation and not in the con....
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....ITO [1981] 131 ITR 597/7 Taxman 13 that "it is well recognized rule of construction that a statutory provision must be so construed, if possible that absurdity and mischief may be avoided." 29. The argument of the counsel for the appellant if taken to its logical end would mean that even in cases where the appeal arising out of the completed assessment has been decided by the CIT(A), ITAT and the High Court, on a notice issued under Section 153A of the Act, the AO would have power to undo what has been concluded up to the High Court. Any interpretation which leads to such conclusion has to be repelled and/or avoided as held by the Hon'ble Supreme Court in the case of K.P. Varghese (supra). 30. Consequently, it is held that it is not open for the assessee to seek deduction or claim expenditure which has not been claimed in the original assessment, which assessment already stands completed, only because a assessment under Section 153A of the Act in pursuance of search or requisition is required to be made." In the case in hand, the transactions of unsecured loans as well as introduction of capital by the partners were duly recorded in the books of accou....
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.... Shri Rajendra Agarwal and his family members in the year of search. The AO himself has not made any addition in the hand of the assessee on account of long term capital gain which was found during the course of search and seizure. Thus, except the material disclosing the long term capital gain in the hand of Shri Rajendra Agarwal, no other incriminating material either found or referred or is the basis of the addition made by the AO while framing the assessment under section 153A of the Act for the assessment years 2010-11 to 13-14. It is appropriate to refer relevant part of the assessment order in para 12 pages 48 to 50, para 19 page 83 and para 22 page 86 as under :- " 12. Submissions made on behalf of the assessee firm have been duly considered. However, even the very elaborate and case laws loaded submissions of the assessee are totally off the mark. Against the selfspeaking facts of the very nature of the activities of the so called partner's providing huge partner's capital in the most uninterested manner and providing huge unsecured loans without any collateral or other security, the emphasis of the assessee firm in its submissions has been on seeking protection u....
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....me brought into the books of the assessee under the garb of unsecured loan and partner's capital. c. The department has carried out search over the assessee group and during the course of search action u/s 132 of the I.T. Act, 1961, the incriminating documents seized during search proceedings vide pg no. 21 to 26 of Annexure AS-1 of Party B-1, wherein the details of year-wise LTCG earned by Shri Rajendra Agrawal and his family members, is maintained, which during search action has been accepted to be bogus by all family members in their respective statements." "19. In view of above facts of the case and in the light of above judicial decision, it is established that genuineness of the transaction has not been proved. Section 68 of the I.T. Act provides for charging to income tax on any sum credited in the books of the assessee maintained for any previous year if the assessee offers no explanation about the nature and source thereof or the explanation offered is not, in the opinion of the Assessing Officer, satisfactory. It places no duty upon the Assessing Officer to point to the source from which the money was received by the assessee. Where an assessee fails to ....
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....ara 3.2.2 and 3.2.4 at pages 35 and 36 are as under :- "3.2.2 As per the provisions of this section where a search is initiated u/s 132 of the Act, the A.O shall issue a notice requiring the person searched to furnish his return of income in respect of each assessment year falling within six assessment years immediately preceding the assessment year relevant to the previous year in which such search is conducted or requisition is made. Once such returns are filed, the AO has to assess or reassess the total income of such six assessment years.(emphasis supplied by me). (The decisive words used in the provisions are to 'assessee or reassess the total income'). The A.O. is thus duty bound to determine the 'total income' of the assessee for such six assessment years and it is obvious that 'total income' refers to the sum total of income in respect of which a person is assessable. The total income therefore will cover not only the income emanating from declared sources or any material placed before the Assessing Officer but from all sources including the undisclosed ones, or based on the unplaced material before the AO. 3.2.3 The concept of 'ass....
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.... the information/report of the Investigation Wing Kolkata is considered as a relevant evidence, the same cannot be regarded as incriminating material unearthed during the course of search and seizure under section 132 of the IT Act in case of the assessee. The requirement for making the addition under section 153A in the assessment years where the assessment was not pending on the date of search and the proceedings are in the nature of reassessment is essentially the incriminating material disclosing undisclosed income which was not disclosed by the assessee. In the case in hand, the AO himself has not claimed any incriminating material found during the search and seizure in the case of the assessee. Accordingly, in the facts and circumstances of the case and in view of the binding precedents on this issue in which the SLP filed by the revenue was also dismissed by the Hon'ble Supreme Court, the additions made by the AO while passing the assessment order under section 153A for the assessment year 2010-11 are not sustainable and accordingly the same are liable to be deleted. We order accordingly. Now on merits : 8. On merits of the addition made under section 68 of the IT Act,....
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....at the transaction of sale is undertaken on or after 01 October, 2004 and is chargeable to STT. However, department noticed that exemption provided under section 10(38) is being misused by certain persons for declaring their unaccounted income as exempt long-term capital gains by entering into sham transactions. Many judgements of various court were also pronounced in favour of assessee on account of long term capital gain on penny stocks. 10.2. With a view to prevent this abuse, the Government amended section 10 (38) to provide that exemption under this section for income arising on transfer of equity share acquired or on after 1st day of October, 2004 shall be available only if the acquisition of share is chargeable to STT under Chapter VII of the Finance (No.2) Act, 2004. So, now to claim the exemption u/s 10 (38), it is also mandatory that the transaction of acquisition is carried through recognize stock exchange and STT should have been paid on such acquisition subject to notified transaction without STT listed in Notification No. 1789 (E) dated 05-06-2017. 10.3. In the case of assessee the STT was paid on the shares purchased and accordingly the capital gain on sale of ....
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....y corroborative material. The assessee is not a party reported in the alleged dubious dealings,if anyhe has no nexus with the company whose shares purchased nor with its directors or operators. he is not connected with the activity of Broker who handled transaction of sale of shares.Thus the assessee having invested in shares of said company which gave huge capital gain in a short period does not mean that the transaction is bogus as all the documents and evidences have been produced. So unless the assessing officer list out all traders, buyers sellers and their share brokers of the mentioned shares and further links them with the assessee or his share broker or the person who bought the shares he sold There is no evidence brought on record that cash has been deposited in the account of purchaser of shares before issue of cheque and they were also not examined by Ld. A.O. and truthfulness of documents also not examined/verified by A.O. Thus it cannot be held only on suspicion or doubt that the transaction made by assessee were nongenuine. 10.6. As regards to reports of SEBI and STT these are general reports about Stock Exchange and of shares transactions to a HUF person or perso....
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....he department on the basis of third party statement. Andaman Timber Industries Vs. CCE -Kolkata - II (2016) 55 Taxworld (SC)." 10.10. The assessee submits that the right to cross examine the third party whose statement is relied by department is principle of natural justice and its denial is violation thereof. The Hon'ble Apex Court in case of Shree Ram Durga Prasad (RB) Vs. Settlement Commission (1989) 176 169,174 (SC) held that any order made in violation of principle of natural justice is void and nullity. As regards the non grant of opportunity to cross examine, the Hon'ble Supreme Court in case of Andaman Timber Industries vs. CCE 127 DTR 241 while dealing with the issue has held in para 5 to 8 as under: "5. We have heard Mrs. Kavin Gulati, learned senior counsel appearing for the assessee, and Mr. K. Radhakrishnan, learned senior counsel who appeared for the Revenue. 6. According to us, not allowing the assessee to cross-examine the witnesses by the Adjudicating Authority though the statements of those witnesses were made the basis of the impugned order is a serious flaw which makes the order nullity in as much as it amounted to violation of princ....
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....the basis of which it could justify its action, as the statement of the aforesaid two witnesses was the only basis of issuing the Show Cause Notice." 10.11. The Hon'ble ITAT Jaipur Bench, Jaipur recently in case of Pramod Jain, Jaipur vs DCIT, Cir-3, Jaipur and other connected case vide its orderdated 31-01-2018 (ITA No.(S) 368 to 372/JP/17) following the judgement of Hon'ble Supreme Court in case of Andman Timber Industries held that without giving opportunity of cross examination the assessment completed is a nullity. Therefore, the statement of witness cannot be sole basis of the assessment without given an opportunity of cross examination and consequently it is a serious flaw which renders the order a nullity. 10.12. As regards to statement of assessee recorded in course of search and post search proceedings which was subsequently retracted by him as obtained under pressure, duress and in disturbed medical condition on which in assessment order A.O. is heavily placing reliance. In this connection it is submitted that in the statement Shri BitthalDas Parwal stated that he earned cash income of Rs. 7,32,86,297/- from real estate transactions which was used in taking....
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....essee. CIT v Balasubramanian (P) (2013) 354 ITR 116 (Mad.). Therefore reliance made by A.O. on such statement is uncalled for. 10.14. The assessee has furnished all the evidences in support of its claim showing the investment in the shares and purchases of the shares has been accepted by the A.O. in the year of its acquisition and thereafter, until the same were sold. It is submitted that the assessee has shown the shares in the balance sheet as on 31.03.2010 which were not doubted by the A.O. and only when the same were sold, the Assessing officer has raised the suspicion of genuineness of the transactions. The assessee is investing in the shares as can be seen from the various shares appearing in his balance sheet and in the Demat account.The transactions of purchase and sale are all through account payee cheque and the same is reflected in the Demat account. The sale of shares suffered STT, brokerages, etc. and therefore eligible for exemption u/s 10 (38) of the Income Tax Act. The reliance is also placed upon the decision of Hon'ble jurisdiction High Court in case of CIT vs. Smt. Pooja Agarwal in DBIT appeal No. 385/2011 dated 11.09.2017 aswell as decision of Hon'ble....
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..... The A.O. has discussed modus operandi in some sham transactions which were detected in the search case of B.c. Purohit Group. The A.O. has also stated in the assessment order itself while discussing the modus operandi that accommodation entries of long term capital gain were purchased as long term capital gain either was exempted from tax or wastaxable at a lower rate. As the appellant's case is of short term capital gain, it does not exactly fall under that category of accommodation transactions. Further as per the report of DCIT, Central Circle-3 Sh. P.K. Agarwal was found to be an entry provider as stated by Sh. Pawan Purohit of B.C. Purohit and Co. group. The AR made submission before the A.O. that the fact was not correct as in the statement of Sh. Pawan Purohit there is no mention of Sh. P.K. Agarwal. It aws also submitted that there was no mention of Sh. P. K. Agarwal in the order of Settlement Commission in the case of Sh. Sushil Kumar Purohit. Copy of the order of settlement commission was submitted. The A.O. has failed to counter the objections raised by the appellant during the assessment proceedings. Simply mentioning that these findings are in the appraisal report an....
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....e AO had proceeded predominantly on the basis of the analysis of the financials of M/s Gold Line International Finvest Limited. His conclusion and findings against the Respondent are chiefly on the strength of the astounding 4849.2% jump in share prices of the aforesaid company within a span of two years, which is not supported by the financials. On an analysis of the data obtained from the websites, the AO observes that the quantum leap in the share price is not justified; the trade pattern of the aforesaid company did not move along with the Sensex; and the financials of the company did not show any reason for the extraordinary performance of its stock. We have nothing adverse to comment on the above analysis, but are concerned with the axiomatic conclusion drawn by the AO that the Respondent had entered into an agreement to convert unaccounted money by claiming fictitious LTCG, which is exempt under Section 10(38), in a pre-planned manner to evade taxes. The AO extensively relied upon the search and survey operations conducted by the Investigation Wing of the Income Tax Department in Kolkata, Delhi, Mumbai and Ahmedabad on penny stocks, which sets out the modus operandi adopted ....
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....y other person, or further that some person provided the entry to convert unaccounted money for getting benefit of LTCG, as alleged. In the absence of any such material that could support the case put forth by the Appellant, the additions cannot be sustained. 12. Mr. Hossain's submissions relating to the startling spike in the share price and other factors may be enough to show circumstances that might create suspicion; however the Court has to decide an issue on the basis of evidence and proof, and not on suspicion alone. The theory of human behavior and preponderance of probabilities cannot be cited as a basis to turn a blind eye to the evidence produced by the Respondent. With regard to the claim that observations made by the CIT(A) were in conflict with the Impugned Order, we may only note that the said observations are general in nature and later in the order, the CIT(A) itself notes that the broker did not respond to the notices. Be that as it may, the CIT(A) has only approved the order of the AO, following the same reasoning, and relying upon the report of the Investigation Wing. Lastly, reliance placed by the Revenue on Suman Poddar v. ITO (supra) and SumatiDayal v....
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....and, also, produced documents showing that all payments were received by the assessee through bank. We do not, therefore, think that this appeal involves any substantial question of law requiring interference by this court under section 260A of the Income Tax Act, 1961. The appeal is, therefore, summarily dismissed. 16. Hon'ble Kolkata ITAT in the case of DolarraiHemani vs. I.T.O. (I.T.A. No. 19/Kol/2014) (A.Y. 2005-06) (Dt. of pronouncement 02.12.2016) wherein it has been stated that - "We find that the similar issue had been adjudicated by the co-ordinate bench of this tribunal in the case of DCIT vs Sunita Khemka in ITA Nos. 714 to 718/Kol/2011 dated 28.10.2015 and in the case of I.T.O. vs Rajkumar Agarwal in ITA No. 1330 (Kol) of 2007 dated 10.8.2007 wherein it was held that when purchase and sale of shares were supported by proper contract notes, deliveries of shares were received through demat accounts maintained with various agencies, the shares were purchased and sold through recognized broker and the sale considerations were received by account payee cheques, the transactions cannot be treated as bogus and the income so disclosed was assessable as LTC....
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....ut any cogent material to show that the assessee has brought back his unaccounted income in the shape of long term capital gain. On the other hand, the assessee has brought all the relevant material to substantiate its claim that transactions of the purchase and sale of shares aregenuine. Even otherwise the holding of the shares by the assessee at the time of allotment is not in doubt, therefore, the transaction cannot be held as bogus. Accordingly we delete the addition made by the A.O. on this account." 21. Hon'ble Kolkata ITAT in the case of Vipul Patel Vs. ITO-Ward 45(4), vide order dated 07-08-2019 held that:- Assessee had purchased 1,10,000 equity shares of company KAFL from SEPL - Later on, 96,001 shares were sold by assessee which resulted in long term capital gain (LTCG) which was claimed as exempt under section 10(38) - Assessing Officer received a report from Investigation Wing stating that bogus long term capital gain transactions were provided to several clients - On basis of same, he alleged that transactions in scrip of KAFL were manipulated by entry operators and share prices were hiked artificially to earn LTCG, thus, he treated said LTCG as b....
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....isone of the promoters of M/s Rutron International Ltd. The shares were sold by the assessee from his D-mataccount through the broker M/s Anand Rathi Share and Stock Brokers Ltd. and therefore, the assessee denied any involvement of availing the bogus of long term capital gain. Consequently the AO made an addition of Rs. 1,32,56,113/- to the total income of the assessee u/s 68 of theAct. The ld. AR has submitted that the assessee was allotted 3,50,000/- equity shares by M/s Rutron International Ltd. on 01.03.2012 vide allotment letter dated 08.03.2012. The shares were allotted by the company at face value of Rs. 10/- each without charging any premium under preferential issue. The assessee paid the purchase consideration/ share application money vide cheque on 29.02.2012 the payment made by the assessee is duly reflected in the back statement of the assessee. The shares were dematerialized on 18.06.2012 and thereafter the shares were sold from 13.03.2013 onwards on various dates through M/s Anand Rathi Shares & Stock Brokers Ltd. The assessee has produced all the relevant evidence to show the allotment of shares, payment of consideration through cheque at the time of allotment of sh....
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.... gain. Hence we delete the addition made by the AO on this account." The following judgements of Courts are also relied : - Asstt. CIT v. Kamal Kumar S. Agarwal (Indl.) [2012] 20 taxmann.com 338 (Nag.) CIT v. Shyam R. Pawar [2015] 54 taxmann.com 108/229 Taxman 256 (Bom.); I.T.O. v. Smt. Aarti Mittal [2014] 41 taxmann.com 118 (Hyd. - Trib.)' I.T.O. v. Ram Krishna Ghosh [2013] 33 taxman.com 145; Kamla Devi S. Doshi v I.T.O. [2017] 88 taxmann.com (Mum.- Trib.); Meenu Goel v. I.T.O. [2018] 94 taxmann.com 158 (Delhi - Trib.); PratikSuryakant Shah v. I.T.O. [2017] 77 taxmann.com 260 (Ahd. - Trib.); Smt. Anjli Pandit v. Asstt. CIT [2017] 88 taxmann.com 657 (Mum. - Trib.); Smt. Smita P. Patil v. Asstt. CIT [2015] 55 taxmann.com 346 (Pune - Trib.). Recently the Punjab High Court in case of Pr. CIT vs. Hitesh Gandhi (ITA No. 18/2017 order dated 16-2-2017) and Pr. CIT vs. Prem Pal Gandhi (ITA No. 95/2017 order dated 18-1-2018) upheld the same law. 10.17. In view of above facts and position of law, the Ld. A.O. is wrong in holding that alleged unaccounted income of Rs. 2,83,12,308/- routed back to assessee during the year under consideration, camaflouged as long term ca....
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....yment for purchase consideration was made through banking channel which is also not disputed by the AO. The AO has not brought on record any material to controvert or disprove these evidences of payment through banking channel, holding of the shares in the Demat account of the assessee, sale of shares from the Demat account through Stock Exchange at the prevailing price in the Stock Exchange on the date of sale. Thus the conclusion of the AO is based on suspicion and surmises without any tangible material to show that the assessee's own unaccounted income has routed back to the assessee in the shape of Long Term Capital Gain. Though the ld. CIT D/R has relied upon various decisions, however, the judgment of the Hon'ble Jurisdictional High Court is binding on the Tribunal when there are divergent views of the different High Courts on an issue. Further, this Tribunal has already taken a consistent view on this issue in the case of Kota Dall Mills vs. DCIT (supra) as well as in a series of other decisions. In case of DCIT vs. A.M. Exports, the Coordinate Bench of the Tribunal vide order dated 7th January, 2019 in ITA No. 561/JP/2018 has again considered this issue in para 8 as und....
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....tion No. 39. Even after the statement recorded U/s 132(4) of the Act, the Investigation Wing again summoned the assessee U/s 131 of the Act for conducting post search enquiry and the statement of the assessee was recorded on 30/05/2013 wherein in response to question No. 12, the assessee clarified that the earlier statement of the assessee in question No. 77 was not a correct statement regarding the loan taken from M/s Dipnarayan Vyapar Pvt. Ltd.. Thus, for understanding of the issue, all the relevant questions put to the assessee and answered to them are to be read conjointly. Hence, we quote question No. 34 to 36 and question No. 39 of assessee's statement recorded U/s 132(4) dated 04/4/2013 and question No. 77 of statement recorded U/s 132(4) on 05/4/2013 and question No. 12 and reply of the statement of the assessee recorded U/s 131 of the Act in post search investigation by the ADIT as under: (i) Interlink saving & finance Pvt. Ltd. 57 Adarsh Nagar, Rishikesh, dehradun, Uttranchal. (ii) Parmatma Developers Pvt. Ltd., 101, Balaram Dey Street, Gr Floor, Kolkata (iii) Rameshwar Finvest Pvt. Ltd., 101 Balaram Dey Street, Kolkata (iv) Sri Ram Tie....
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....nking channel. Thus, having regard to the background of the circumstances in which statement of the assessee regarding said transaction of loan from M/s Dipnarayan Vyapar Pvt. Ltd. was recorded and finally statement recorded in post search inquiry we are of the view that the assessee finally clarified the issue in the statement recorded U/s 131 of the Act and therefore, there was no admission on the part of the assessee. Except the statement of partner of the assessee, there was nothing incriminating found or seized during the course of search and seizure action, therefore, the statement of the assessee recorded during the search and post search enquiry has to be read together and the outcome of the said statement is that the assessee has never admitted any bogus transaction except the misunderstanding due to continuous grilling by the Investigation Wing and due to mentally exhausted, the assessee given some inconsistent reply to question No. 77 which was subsequently clarified in question No. 12 of the statement recorded by the investigation Wing in the post search enquiry U/s 131 of the Act. Even otherwise, all these statements are only regarding one transaction of loan that cann....
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....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 153 A 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 the original assessment and the assessment under Section 153A merges into one. Only one assessment shall be made separately for each AY on the basis of the findings of the search and any other material existing or brought on the record of the AO. vii. Completed assessments can be interfered with by the AO while making the assessment under Section 153 A only on the basis of some incriminating material unearthed during the course of search or requisition of documents or undisclosed income or property discovered in the course of search which were not produced or not already disclosed or made known in the course of original assessment. Co....
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....se of the search or other post-search material or Information available with the Assessing Officer which can be related to the evidence found. This, however, does not mean that the assessment under Section 153A 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." 58. In Kabul Chawla (supra), the Court discussed the decision in Filatex India Ltd. (supra) as well as the above two decisions and observed as under: "31. What distinguishes the decisions both in CIT v. Chetan Das Lachman Das (supra), and Filatex India Ltd. v. CIT-IV (supra) in their application to the present case is that in both the said cases there was some material unearthed during the search, whereas in the present case there admittedly was none. Secondly, it is plain from a careful reading of the said two . decisions that they do not hold that additions can be validly made to income forming the subject matter of completed assessments prior to the search even if no incriminating material whatsoever was unearthed during the search. 32. Recently by its order dated 6th J....
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....as in the context of search and/or requisition. The Court also explained the purport of the words "assess" and "reassess", which have been found at more than one place in Section 153A of the Act as under: "26. The plea raised on behalf of the assessee that as the first proviso provides for assessment or reassessment of the total income in respect of each assessment year falling within the six assessment years, is merely reading the said provision in isolation and not in the context of the entire section. The words 'assess' or 'reassess'-have been used at more than one place in the Section and a harmonious construction of the entire provision would lead to an irresistible conclusion that the word assess has been used in the context of an abated proceedings and reassess has been used for completed assessment proceedings, which would not abate as they are not pending on the date of initiation of the search or making of requisition and which would also necessarily support the interpretation that for the completed assessments, the same can be tinkered only based on the incriminating material found during the course of search or requisition of documents."' ....
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.... 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 the original assessment and the assessment under Section 153A merges into one. Only one assessment shall be made separately for each AY on the basis of the findings of the search and any other material existing or brought on the record of the AO. vii. Completed assessments can be interfered with by the AO while making the assessment under Section 153 A only on the basis of some incriminating material unearthed during the course of search or requisition of documents or undisclosed income or property discovered in the course of search which were not produced or not already disclosed or made known in the course of original assessment." 61. It appears that a number of High Courts have concurred with the decision of this Court in Kabul Chawla(supra) beginning with the Gujarat High Court in Saumya Construction (P.) Ltd. (supra). There, a search and seizure operation was carried out on 7th October, 2009 and an assessment came to be framed under Section 143(3) read with Section 153A(1....
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....r legal provision, then the assessment or reassessment relating to any assessment year which had abated under the second proviso would stand revived. The proviso thereto says that such revival shall cease to have effect if such order of annulment is set aside. Thus, any proceeding of assessment or reassessment falling within the six assessment years prior to the search or requisition stands abated and the total income of the assessee is required to be determined under section 153A of the Act. Similarly, sub-section (2) provides for revival of any assessment or reassessment which stood abated, if any proceeding or any order of assessment or reassessment made under section 153A of the Act is annulled in appeal or any other proceeding. 16. Section 153A bears the heading "Assessment in case of search or requisition". It is "well settled as held by the Supreme Court in a catena of decisions that the heading or the Section can be regarded as a key to the interpretation of the operative portion of the section and if there is no ambiguity in the language or if it is plain and clear, then the heading used in the section strengthens that meaning. From the heading of section 153. the....
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....sed during the search or requisition. If in relation to any assessment year, no incriminating material is found, no addition or disallowance can be made in relation to that assessment year in exercise of powers under section 153A of the Act and the earlier assessment shall have to be reiterated. In this regard, this court is in complete agreement with the view adopted by the Rajasthan High Court in the case of Jai Steel (India) v. Asst. CIT (supra). Besides, as rightly pointed out by the learned counsel for the respondent, the controversy involved in the present case stands concluded by the decision of this court In the case of CIT v. Jayaben Ratilal Sorathia (supra) wherein it has been held that while it cannot be disputed that considering section 153A of the Act, the Assessing Officer can reopen and/or assess the return with respect to six preceding years ; however, there must be some incriminating material available with the Assessing Officer with respect to the sale transactions in the particular assessment year.' 62. Subsequently, in Devangi alias Rupa (supra), another Bench of the Gujarat High Court reiterated the above legal position following its earlier decisi....
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....espect of purchase, manufacturing and sales in our regular books of accounts but it is also fact that some time due to some factors like inability of accountant, our busy schedule and some family problems, various purchases and sales of Supari, Gutka and other items dealt by our firms is not entered and shown in the regular books of accounts maintained by our firms." 65. Therefore, there was a clear admission by the Assessees in Smt. Dayawanti Gupta (supra) there that they were not maintaining regular books of accounts and the transactions were not recorded therein. 66. Further, in answer to Question No. 11, the Assessee in Smt. Dayawanti Gupta (supra) was confronted with certain documents seized during the search. The answer was categorical and reads thus: "Ans:- I hereby admit that these papers also contend details of various transactions include purchase/sales/manufacturing trading of Gutkha, Supari made in cash outside Books of accounts and these are actually unaccounted transactions made by our two firms namely M/s. Asom Trading and M/s. Balaji Perfumes." 67. By contrast, there is no such statement in the present case which can be said to co....
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....wered again in favour of the revenue and against the assessee." 69. What weighed with the Court in the above decision was the "habitual concealing of income and indulging in clandestine operations" and that a person indulging in such activities "can hardly be accepted to maintain meticulous books or records for long." These factors are absent in the present case. There was no justification at all for the AO to proceed on surmises and estimates without there being any incriminating material qua the AY for which he sought to make additions of franchisee commission. 70. The above distinguishing factors in Smt. Dayawanti Gupta (supra), therefore, do not detract from the settled legal position in Kabul Chawla (supra) which has been followed not only by this Court in its subsequent decisions but also by several other High Courts. 71. For all of the aforementioned reasons, the Court is of the view that the ITAT was justified in holding that the invocation of Section 153A by the Revenue for the AYs 2000-01 to 2003-04 was without any legal basis as there was no incriminating material qua each of those AYs. Conclusion 72. To conclude: (i)....
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....te of a search and/or requisition, nothing incriminating is found. In such a case though Section 153A of the Act would be triggered and assessment or reassessment to ascertain the total income of the person is required to be done, however, the same would in that case not result in any addition and the assessments passed earlier may have to be reiterated. 23. The reliance placed by the counsel for the appellant on the case of Anil Kumar Bhatia (supra) also does not help the case of the assessee. The relevant extract of the said judgment reads as under:- "19. Under the provisions of Section 153A, as we have already noticed, the Assessing Officer is bound to issue notice to the assessee to furnish returns for each assessment year falling within the six assessment years immediately preceding the assessment year relevant to the previous year in which the search or requisition was made. Another significant feature of this Section is that the Assessing Officer is empowered to assess or reassess the "total income" of the aforesaid years. This is a significant departure from the earlier block assessment scheme in which the block assessment roped in only the undisclosed inc....
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....eedings "shall abate". The reason is not far to seek. Under Section 153A, there is no room for multiple assessment orders in respect of any of the six assessment years under consideration. That is because the Assessing Officer has to determine not merely the undisclosed income of the assessee, but also the 'total income' of the assessee in whose case a search or requisition has been initiated. Obviously there cannot be several orders for the same assessment year determining the total income of the assessee. In order to ensure this state of affairs namely, that in respect of the six assessment years preceding the assessment year relevant to the year in which the search took place there is only one determination of the total income, it has been provided in the second proviso of sub-Section (1) of Section 153A that any proceedings for assessment or reassessment of the assessee which are pending on the date of initiation of the search or making requisition "shall abate". Once those proceedings abate, the decks are cleared, for the Assessing Officer to pass assessment orders for each of those six years determining the total income of the assessee which would include both the inc....
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....also have to be read in context that irrespective of the fact whether any incriminating material is found during the course of search, the notice and consequential assessment under Section 153A have to be undertaken. 25. The argument of the learned counsel that the AO is also free to disturb income, expenditure or deduction de hors the incriminating material, while making assessment under Section 153A of the Act is also not borne out from the scheme of the said provision which as noticed above is essentially in context of search and/or requisition. The provisions of Sections 153A to 153C cannot be interpreted to be a further innings for the AO and/or assessee beyond provisions of Sections 139 (return of income), 139(5) (revised return of income), 147 (income escaping assessment) and 263 (revision of orders) of the Act. 26. The plea raised on behalf of the assessee that as the first proviso provides for assessment or reassessment of the total income in respect of each assessment year falling within the six assessment years, is merely reading the said provision in isolation and not in the context of the entire section. The words 'assess' or 'reassess'....
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....leted assessments no addition can be made if no incriminating seized material is found during the course of search. The relevant observation of the judgment is reproduced below: "In the firm opinion of this Court from a plain reading of the provision along with the purpose and purport of the said provision, which is intricately linked with search and requisition under Sections 132 and 132A of the Act, it is apparent that: (a) The assessments or reassessments, which stand abated in terms of II proviso to Section 153A of the Act, the AO acts under his original jurisdiction, for which, assessments have to be made; (b) Regarding other cases, the addition to the income that has already been assessed, the assessment will be made on the basis of incriminating material and just In absence of any incriminating material, the completed assessment can be reiterated and the abated assessment or 13 D.B. INCOME TAX APPEAL NO.53/2011 Jai Steel (India), Jodhpur vs. Assistant Commissioner of income Tax, Jodhpur (Along with other 16 similar matters) reassessment can be made." 7.5 Similar view point was expressed by the Hon'ble Delhi High court in the case of Kabul ....
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.... material existing or brought on the record of the AO. vii Completed assessments can be interfered with by the AO while making the assessment under Section 153 A only on the basis of some incriminating material unearthed during the course of search or requisition of documents or undisclosed income or property discovered in the course of search which were not produced or not already disclosed or made known in the course of original assessment. Conclusion 38. The present appeals concern AYs, 2002-03, 2005-06 and 2006-07.0n the date of the search the said assessments already stood completed. Since no incriminating material was unearthed during the search, no additions could have been made to the income already assessed. 7.6 The issue of additions made by the AO while framing the assessment u/s 143(3)/153A, if no incriminating material is found during the course of search was considered by Hon'ble Gujarat High court in the case of Soumya construction PL Vs CIT 387 ITR 529. In its order dated 14/03/2016 Hon'ble court has categorically stated that, in cases of completed assessment, if no incriminating material is found then no additions can be made in ....
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....made to obtain confession as to the undisclosed income. The Board has again issued a Circular dated 18th December, 2014 and advised the Taxing Authorities to avoid obtaining admission of undisclosed income under coercion/undue influences. Thus in the absence of any incriminating material found during the course of search and seizure action, the confession as recorded during the course of search and seizure action has no evidentiary value. It is also pertinent to note that if a confession revealing certain information or disclosing certain transactions which are not disclosed by the assessee in the books of account, the same has a good evidentiary value and a simplicitor retraction of such statement cannot be accepted until and unless the assessee at the time of retraction explains the mistakes and circumstances under which such mistakes were committed while making the confession. In the case in hand, the confession of the assessee is not revealing any transaction which is not already disclosed or recorded in the books of account. Therefore, any confession of undisclosed income which is already part of books of account as well as already disclosed in the return of income filed under....
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....see holding that in absence of any incriminating material, the completed assessment can't be interfered with by the AO and completed assessment can be interfered with the AO while making assessment u/s 153A only on the basis of some incriminating material unearthed during the course of search which were not produced or not already disclosed. Although the same was accepted in the statement recorded under section 132(4). 7. The appellant craves to add, amend, alter or forego any ground(s) of appeal either before or at the time of hearing of the appeal. 16. Grounds no. 1 and 3 to 6 are covered by our decision in ITA No. 753/JP/2019 and therefore, no separate adjudication is required. 17. In respect of Ground No. 2, briefly stated the facts of the case are that the assessee is an individual deriving share of income from firm M/s. Maheshwari Associates and income from other sources. The assessee filed his return of income under section 139 on 15.03.2013 declaring an income of Rs. 9,40,240/-. A search was conducted on 07.01.2016 in case of Dilip Manihar Group, Jaipur and assessee was also covered in it. In search no incriminating material, loose paper or documents pertaini....
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....om the facts of the present case. This decision may not be the precedent in other cases having different facts. 20. In the result, appeal of the Revenue in ITA No. 149/JP/2020 for the assessment year 2012-13 is dismissed. Order pronounced in the open court on 24/02/2022. ============= Document 1 पà¥à¤°. 34 मैं आपसे आपकी à¤à¤¾à¤—ीदारी फरà¥à¤® à¤. à¤à¤®. à¤à¤•à¥à¤¸à¤ªà¥‹à¤Ÿà¤°à¥à¤¸ बà¥à¤• में निमà¥à¤¨à¤²à¤¿à¤–ित अनसिकà¥à¤¯à¥‹à¤°à¥à¤¡ लोन कà¥à¤°à¥‡à¤¡à¤¿à¤Ÿà¤°à¥à¤¸ के लेजर दिखा रहा हूà¤- Document 2 (viii) Yatan Traders Pvt. Ltd., 62/1, Hriday Krishna Banerjee Lane, Howrah. उपरोकà¥à¤¤ सà¤à¥€ Transactions की पà¥à¤°à¤®à¤¾à¤£ सà¥à¤ªà¤·à¥à¤Ÿ à¤....
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....µà¤¿à¤µà¤°à¤£ दे? उतà¥à¤¤à¤°- गत वरà¥à¤·à¥‹à¤‚ की बात मà¥à¤à¥‡ जबानीतौर पर याद नहीं है। यह फरà¥à¤® दà¥à¤µà¤¾à¤°à¤¾ पेश की गई खातों में गणना कर निकालना होगा जो शà¥à¤°à¥€à¤®à¤¾à¤¨à¥ के कारà¥à¤¯à¤¾à¤²à¤¯ में हाजरी देने आऊंगा जब गणना कर बताऊंगा। पà¥à¤°. 39 आपकी गरà¥à¤® A.M. Exports का Dipnarayan Vyapaar Pvt. Ltd. दो साथ कà¥à¤¯à¤¾ समà¥à¤¬à¤¨à¥....
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....द करते हà¥à¤ याद आ रहा है à¤à¤µà¤‚ विà¤à¤¾à¤— से सहयोग की इचà¥à¤›à¤¾ रखते हà¥à¤ बताना चाहता हूठकि मैंने मैसरà¥à¤¸ Dipnarayan Vayapar Private Limited को चैक दिया था जिसका मà¥à¤à¥‡ इस साल में कैश पà¥à¤°à¤¾à¤ªà¥à¤¤ हो गया जिसे मैंने इस वितà¥à¤¤ वरà¥à¤· की अघोषित आय के रूप में विà¤à¤¾à¤— को समरà¥à¤ªà¤¿à¤¤ कर दिया। पà¥....
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....¥‚ं कि मैंने मैसरà¥à¤¸ दीपनारायण वà¥à¤¯à¤¾à¤ªà¤¾à¤° पà¥à¤°à¤¾.लि. को चैक दिया था जिसका मà¥à¤à¥‡ इस साल में कैश पà¥à¤°à¤¾à¤ªà¥à¤¤ हो गया जिसे मैंने इस वितà¥à¤¤ वरà¥à¤· की अघोषित आय के रूप में विà¤à¤¾à¤— को समरà¥à¤ªà¤¿à¤¤ कर दिया।" कृपया तलाशी à¤à¤µà¤‚ जबà¥à¤¤à¥€ की कारà¥à¤¯à¤µà¤¾à¤¹à¥€ के दौरान आपके सशपà¤....
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....¤¶à¤¿ पà¥à¤°à¤¾à¤ªà¥à¤¤ की थी, सà¥à¤ªà¤·à¥à¤Ÿ करें। उतà¥à¤¤à¤°- मैंने आपके दà¥à¤µà¤¾à¤°à¤¾ दिखाये गये à¤à¤¨à¥‡à¤•à¥à¤¸à¤° AS Exibits के पेज संखà¥à¤¯à¤¾ 37 à¤à¤µà¤‚ तलाशी à¤à¤µà¤‚ जबà¥à¤¤à¥€ की कारà¥à¤¯à¤µà¤¾à¤¹à¥€ के दौरान दरà¥à¤œ मेरे बयानों को अचà¥à¤›à¥€ तरह से पà¥à¤•à¤° समठलिया है। मैं यहां यह कहना चाहता हूं कि तलाशी à¤à¤µà¤‚ जबà¥à¤¤....