TaxTMI 
TaxTMI 
2024 (1) TMI 59
X X X X Extracts X X X X
X X X X Extracts X X X X
....e of CIT(Central-3) Vs. Kabul Chawla. 2. Whether on the facts and in the circumstances of the case the Ld.CIT(A) has erred in law and on facts in not appreciating that the assessee Sh. Amit Shankhwal who is one of the directors in M/s J H Jewels Pvt. Ltd. has accepted in his statement recorded that he has received accommodation entry in his company through entry operators in Kolkata. 3. Whether on the facts and in the circumstances of the case the Ld.CIT(A) has erred in law and on facts in not appreciating that the assessee retraced his statement made u/s 133A of the Act by an affidavit without producing any evidence to the contrary. 4. Whether on the facts and in the circumstances of the case the Ld.CIT(A) has erred in law and on facts in not appreciating that the case of M/s Pebble Investment and Finance Pvt. Ltd. Vs. ITO (2017-TIOL-238 SC-IT) is very much applicable in this case. 5. That the order of Ld.CIT(A) is perverse, erroneous and is not tenable on facts and in law. 6. That the grounds of appeal are with prejudice to each other. 7. That the appellant craves leave to add, amend, alter or forgo any grounds of appeal eithe....
X X X X Extracts X X X X
X X X X Extracts X X X X
....bmits that no incriminating material was found in the course of search warranting the additions. Ld. Counsel submits that as there was no incriminating material found and since the assessments for the assessment years 2011-12 and 2013-14 were unabated the Ld. CIT(Appeals) deleted the addition following various decisions including the decision of the jurisdictional High Court in the case of CIT Vs. Kabul Chawla (61 taxmann.com 412). 3. On the other hand, the Ld. DR strongly supported the orders of the Assessing Officer. 4. Heard rival submissions, perused the orders of the authorities below. 5. The only issue in these appeals is as to whether the addition made by the AO is sustainable in the absence of any incriminating material when the assessments are unabated. The Ld.CIT(Appeals) considered the submissions of the assessee, evidences on record including the materials seized in the course of search and the findings of the Assessing Officer in the assessment order and concluded that no incriminating material was found during search/survey proceedings leading to the additions made by the AO observing as under: "9. Ground Nos. 1, 2 & 5 pertaining to the addition of R....
X X X X Extracts X X X X
X X X X Extracts X X X X
....imited as they are very old and I do not have proper records for that period hence I recollect and thus I am not in a position to explain it. 9.1 The Appellant retracted the above statements by means of affidavit dated 05-08.2016 filed on 08.08.2016. The DDIT(Inv.) again recorded the Appellant's statement on 29.09.2017. The relevant para is hereunder: - Question 7: in question No. 25, you have admitted that loans and advances of Rs. 16,69,85,000/- received from various companies received in M/s J H Jewels Pvt. Ltd. are not genuine and were in fact monies earned thru unaccounted sales of jewellery. Please clarify why the aforesaid statement is disregarded and the averment made in your affidavit be accepted particularly as your affidavit is self-serving? Answer 7: I was forced to admit the Loans and Advances received by M/s J H Jewels Pvt. Ltd. from Shivshakti Commercial Pvt. Ltd., Dynamic Enclave Pvt. Ltd. and Maharaja Tie up Pvt. Ltd. as my unaccounted income. This statement was made by me under pressure of the officers present during the course of survey proceedings. The true fact is that M/s J H Jewels Pvt. Ltd. has acquired the shares of (i) Mahara....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ed; the said company had reserves and investment in shares of various companies, which were sold and such funds were advanced to M/s J H Jewels Pvt. Ltd. which held 100% of the shares of Maharaja Tie Up Pvt. Ltd., copies of balances sheet, bank Statements, copies of ITR's, Assessment orders duly filed; Source of Source also explained. Thus the loans received by M/s J H Jewels Pvt. Ltd. were genuine; 9.3 The AO held "The above submissions of the assessee has been considered and not found acceptable. During the course of Survey at M/s J H Jewellers LLP on 27.02.2016, statement of the assessee was recorded u/s 133A. The assessee has accepted that he introduced his own money through Shivshakti Commercial Pvt. Ltd. and Dynamic Enclave Pvt. Ltd. As per the statement the assessee was not able to recall the transaction with Maharaja Tie Up Pvt. Ltd. Accordingly, the AO made addition of Rs. 16,48,00,000/- being amount of alleged Loan given by Maharaja Tie Up Pvt. Ltd. to M/s J H Jewels Pvt. Ltd. as given out of undisclosed income of appellant. Subsequently, the addition was reduced to Rs. 15,22,00,000/- which was the actual loan and not Rs. 16,48,00,000/-. 10. The appellan....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ictly 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 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....