TaxTMI 
TaxTMI 
TaxTMI 
2024 (3) TMI 822
X X X X Extracts X X X X
X X X X Extracts X X X X
.... That on law, facts and circumstances of the case, the Worthy CIT(A) has erred confirming the actions of the Ld. AO as well as the Ld. Addl. CIT, Range-5, New Delhi by granting multiple approvals u/s 153D of the Act (without any legal mandate) and revisiting the earlier approvals without any change of facts and emergence of any new fact and thus the subsequent approvals and orders were void- ab-initio. 3. That on law, facts and circumstances of the case, the Worthy CIT(A) has erred in upholding the action of the Ld. AO by making additions/disallowances in the impugned assessment order framed u/s 153A of the Act on the issues which have no nexus with the material unearthed during the course of search operations and thereby making a de-novo assessment, which needs to be deleted. 4. That on law, facts and circumstances of the case, the Worthy CIT(A) has erred in upholding the action of the Ld. AO, as the impugned assessment order is devoid of principles of natural justice and the Ld. AO was unable to demonstrate the alleged seized document based on which an exorbitant addition has been made and thus void-ab-initio. 5. That on law, facts and circumstances of the case, the Worthy ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....g for cloned copy of seized data and requested for copy of FT & TR reference. In response to which a letter was written to the concerned ADIT (Inv.) and the assessee was directed to be present on 5.2.2019. This fact is mentioned in Page 28 of the assessment order. The ld. AO observed that none appeared on behalf of the assessee on 5.2.2019. 4. The ld. AO in the assessment proceedings proceeded to examine the details of Foreign Direct Investment (FDI) received by the assessee company. A hard disk -2 was seized from the office premises of Alchemist group at SCO 12-13, Sector- 9D, Chandigarh which contained certain data pertaining to money to be sent and amount received in India through FDI route. A show cause notice dated 6.11.2018 was issued to the assessee and following information was asked from the assessee to explain and substantiate with respect to seized material:- "On analysis of data located in G:\DATA OF SERVER 3 FILE SERVER PRESENT DATA\XLS\Trade Transaction 2013-14- Final-Ravi Singapure-Finalin hard disk-2 seized from SCO 12-13, Sector-9 D, Chandigarh. Details related to Foreign Direct Investment (FDI) received in Alchemist group entities are found maintained. The scan....
X X X X Extracts X X X X
X X X X Extracts X X X X
....USD under FDI route and the difference was due to LC charges and other bank charges. This fact is also mentioned in Page 29 of the assessment order. The ld. AO further observed in page 29 of his order that FT & TR report revealed that LGF had raised money through issue of shares and the same money had been introduced as investments in the assessee company. Despite this, the ld. AO proceeded to hold that the assessee had not explained the receipt of funds under FDI route and held that genuineness of the transactions is not established by the assessee. The ld. AO also observed that the transaction of the assessee is nothing but a camouflage to roundtrip their own money via FDI route. Accordingly, the ld. AO concluded that the figure of 19500000 USD shown as "amounts sent" is undisclosed investment made by the assessee sent for the purpose of obtaining funds through FDI route to avoid tax incidence which have been introduced in its books. Such unexplained money introduced in its books through FDI route is liable for addition u/s 68 of the Act since the money has been sent to secure such funds through FDI route, the same has to be considered as unexplained investment in terms of provis....
X X X X Extracts X X X X
X X X X Extracts X X X X
....e Global Fund Limited, Cyprus. c) Share certificate issued by assessee company to LGF. d) Return of allotment in Form 2 filed by the assessee company with Registrar of Companies (ROC) duly containing the details of number of shares issued, break up of share capital and share premium thereon and the date of allotment of shares together with the board resolution of the assessee company for the said allotment of shares and payment of requisite filing fees to ROC. e) Letter dated 8.3.2013 submitted by assessee company to Punjab National Bank for submission of FC-GPR Part A to RBI-Foreign Direct Investment mentioning the details of amounts received under FDI route duly mentioning the name of LGF with its address in the prescribed form. f) Certificate from a independent company secretary dated 7.3.2013 certifying that with regard to the subject mentioned receipt of monies under FDI route and consequential allotment of shares to LGF , the requirements of relevant provisions of the Companies Act, 1956 and Foreign Exchange Management Act (FEMA) had been complied with. g) Letter issued by LGF dated 12.3.2013 to Punjab National Bank confirming the fact of they investing Rs 100 crore....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... Act was carried out by investigation Wing, Unit 2 of DIT (Inv) Chandigarh DOS 20.08.2014 in the case of Alchemist group. The assessment is pending in the following cases M/s. Alchemist Foods, M/s. Alchemistic Tochnology and M/s. Alchemist Hospital. Assessee has requested for clone copy of required data disk as it is alleged by assessee that no such data is there. In view of above cloning and forensic analysis of same disk will be carried on 05.02.2019. You are thereby requested to kindly be present at the time of cloning and further forensic analysis. Encl: As above Yours faithfully, (Saurabh Kumar Sharma) Asstt. Commissioner of Income Tax, Central Circle-20, New Delhi" 9. The assessee had replied that since this letter was received only on 6.2.2019, it could not attend the hearing on 5.2.2019. This was intimated to the ld. AO on 06.02.2019 itself both by way of letter sent to him physically as well as in official Email ID of the ld. AO. The ld. DR vehemently submitted that the seized documents were indeed already handed over to the assessee on 4.12.2018 itself much before the completion....
X X X X Extracts X X X X
X X X X Extracts X X X X
....the addition on suspicion. It is trite law that suspicion howsoever strong would not partake the character of legal evidence and hence a greater onus is casted on the revenue to bring on record cogent evidences to justify its suspicion, which is conspicuously absent in the instant case. The only material that is relied upon by the revenue is the hard disk seized during search which only contained the details of "amounts sent" and "amounts received". Nowhere the said material even suggested that the amounts were sent by assessee company in illegal route which in turn had surfaced back in the form of share capital and premium under FDI route from Cyprus. Though the presumption u/s 292C of the Act would go in favour of the revenue, it cannot be brushed aside that the said presumption is a rebuttable presumption and assessee had duly discharged its onus on the same. Moreover, the present assessee herein is an assessee proceeded u/s 153C of the Act and hence it is all the more necessary for the revenue to arrive at the satisfaction that income or materials or documents does not belong or pertain to the searched person and indeed belongs to third person (i.e 153C assessee). Viewed from t....