TaxTMI 
TaxTMI 
2022 (3) TMI 1341
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....ome tax (A)-XXVI, New Delhi (in short "Ld. Commissioner") u/s 250(6) of the Income Tax Act, 1961 (in short "the Act"). 2. We will first decide the appeal filed by the Revenue. 3. The Assessee had filed its original return of income u/s 139(1) of the Act on 30.09.2010, which came into scrutiny and resulted into passing of assessment order u/s 143(3) of the Act on 20.03.2013. 4. Subsequently a search and seizure operation u/s 132 of the Act was conducted on 20.1.2015 and on subsequent dates in different offices and residential premises of Rathi group of cases based at Delhi and National Capital Region (NCR). The case of the assessee company was also covered as one of the group company and accordingly notice u/s 153 of the Act was iss....
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....ax Act, 1961 ('the Act') were conducted on the business and residential premises of the directors of Rathi group. Pursuant to notice under section 153A of the Act, return declaring NIL income was filed on 18.04.2016. The assessment however was made at the Rs. 2,04,90,000/-, making the addition of Rs. 2,04,90,000/- under section 68 of the Income Tax Act. The Id AO was added total amount of Rs. 2,04,90.000/- to the income of the Appellant for the reason that the investor companies were used by the Appellant as a conduit for introduction of their unaccounted money in the form of share capital and premium. v. In view of the strict regime of section 68, the addition on account of share capital subscription does not survive for the relev....
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....g funds from other concerns and daily balances in the accounts always remain at the minimum. On examination of bank accounts produced, it is noted that normally cheques are issued immediately after receipt from some other parties. " However AO has not verified the hank statement and made the wrong additions u/s 68 of Income Tax act. Ld AO has made the additions u/s 68 on the basis of alleged verification ofgenu..... . It is also to be noted that applicant is a listed company hence amendment u/s 68 of IT act is not applicable to the applicant and AO is not empowered to verify the source of source in the case under consideration. Your honor, it is evident that the Id. AO has framed his order/report based on....
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....nsactions is doubtful but at the same time deleting the addition by relying on the proviso 1 of section 68. 2. That the Ld.CIT(A) has erred in law and facts in wrongly interpreting the proviso 1 of section 68 and by holding that the listed public companies are excluded from the onus of explaining the source of source without appreciating the law that the such exemption is provided only for seeking share capital from the public at large. 3. That the Ld.CIT(A) has erred in law and facts and relying on proviso 1 of sec 68 of the I.T. Act without appreciating the explanatory notes of the above noted proviso which only provides that the onus is different in the case of companies seeking share capital from the public at large an....
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....ic at large and which is not the case in the instant appeal. Further, the learned Commissioner has erred in facts and law in passing the contradictory order on one hand holding that the creditworthiness and the genuineness of the transaction is doubtful but at the same time allowed the appeal of the assessee by incorrectly referring to proviso 1 of Section 68, therefore, on the basis of aforesaid contentions the order under challenge is liable to be set aside. 6.2 On the contrary, the assessee claimed that the Ld.Commissioner has held that the share capital was raised in F.Y. 2008-09 but not in F.Y. 2009- 10 and therefore, the addition cannot be made in the year under consideration i.e. A.Y. 2010-11 and consequently the Ld. Commissioner ....
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.... Court in the case of CIT Vs. Kabul Chawla (supra), wherein it was held that "that if on the date of search, the assessment proceedings already stood completed and no incriminating material unearthed during the search, then no addition can be made to the income already assessed.‟ The said dictum of the Hon'ble High Court was confirmed by the Hon'ble Apex Court in the case of Pr. Joint CIT vs. Meeta Gutgutia {(2017) 395 ITR 526 (Del)}by dismissing the SLP filed against the judgment of Hon‟ble Jurisdictional High Court, wherein the same dictum was laid down by the Hon'ble Court as in CIT vs. Kabul Chawla (supra), thus we are inclined to follow the decisions of Jurisdictional High Court, referred above . Resultantly, wi....