TaxTMI 
TaxTMI 
2025 (1) TMI 906
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....oner of Income Tax (Appeals) [CIT(A)] is bad both in the eye of law and on facts. 2. On the facts and circumstances of the case, learned CIT (A) has erred, both on facts and in law, in confirming the assessment order despite the fact the same is null and void as the same has been passed in violation of CBDT Circular No. 10/2019 requiring mandatory DIN in the body of the assessment order. 3. On the facts and circumstances of the case, learned CIT (A) has erred, both on facts and in law, in rejecting the contention of the assessee that the assessment proceedings initiated and consequently assessment order passed under section 153A of the Act by the learned AO is bad and liable to be quashed in the absence of any search action under section 132 of the Act on the assessee. 4. On the facts and circumstances of the case, the learned CIT(A) has erred both on facts and in law. in rejecting the contention of the assessee that the notice issued under section 153A of the Act and consequential order has been passed by the learned AO is invalid and barred by limitation as the impugned assessment year does not fall within the definition of 'relevant assessment year....
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....e back of the assessee without giving assessee an opportunity to rebut the same. 12. The appellant craves leave to add, amend or alter any of the grounds of appeal." 3.1 Following grounds have been raised by the assessee in the AY 2009-10: - 1. "On the facts and circumstances of the case, the order passed by the learned Commissioner of Income Tax (Appeals) [CIT(A)] is bad both in the eye of law and on facts. 2. On the facts and circumstances of the case, learned CIT (A) has erred, both on facts and in law, in confirming the assessment order despite the fact the same is null and void as the same has been passed in violation of CBDT Circular No. 19/2019 requiring mandatory DIN in the body of the assessment order. 3. On the facts and circumstances of the case, learned CIT (A) has erred, both on facts and in law, in rejecting the contention of the assessee that the assessment proceedings initiated and consequently assessment order passed under section 153A of the Act by the learned AO is bad and liable to be quashed in the absence of any search action under section 132 of the Act on the assessee. 4. (i) On the facts and circumstances of t....
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.... assessee to prove the identity and creditworthiness of the investors as well as genuineness of the transactions. 10. On the facts and circumstances of the case, the learned CIT(A) has erred both on facts and in law in confirming the above addition despite that the same has been made merely by relying on the statements recorded at the back of the assessee, without giving assessee an opportunity to cross examine the same. 11. On the facts and circumstances of the case, the learned CIT(A) has erred both on facts and in law in confirming the above addition despite that the same has been made on the basis of material collected at the back of the assessee without giving assessee an opportunity to rebut the same. 12. The appellant craves leave to add, amend or alter any of the grounds of appeal." 3.2 In nutshell, the assessee has challenged the quantum of additions and the assumption of jurisdiction by the Assessing Officer (hereinafter the 'AO'). ITA No. 2899/Del/2024, AY 2008-09 4. At the outset, the Ld. Counsel raised the issue of jurisdiction. He challenged the issuance of notice under section 153A of the Income Tax Act, 1961 (hereinafter, the 'Act....
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....ecision of the Hon'ble Delhi High Court in the case of Ojjus Medicare Pvt. Ltd. (Supra) wherein it was categorically held as under: - "The case on hand pertains to AY 2009-10. It is obviously beyond the ten-year outer ceiling limit prescribed by the statute. The terminal point is the tenth year calculated from the end of the assessment year relevant to the previous year in which search is conducted. The long arm of the law can go up to this terminal point and not one day beyond. When the statute is clear and admits of no ambiguity, it has to be strictly construed and there is no scope for looking to the explanatory notes appended to statute or circular issued by the department. 10. In the case on hand, the statute has prescribed one mode of computing the six years and another mode for computing the ten years. Section 153 A(1)(b) states that the assessing officer shall assess or reassess the total income of six years immediately preceding the assessment year relevant to the previous year in which search is conducted. Applying this yardstick, the six years would go up to 2013-14 The search assessment year, namely, 2019-20 has to be excluded. This is because, the sta....
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....s. 1,74,00,000/- as unexplained. In appeal, the Ld. CIT(A) confirmed the addition on merit. The assessee also raised the issue of incriminating material before the CIT(A), who dealt that issue as under: - "8. Grounds of appeal no 5-7 In these grounds of appeal, the appellant has stated that additions made in the order u/s 153A of the Act cannot be sustained in the absence of any incriminating material found during the search proceedings. The appellant has placed reliance upon the decision of Hon'ble Supreme Court in the case of Abhisar Buildwellin Civil Appeal no. 6580/2021 dated 24.04.2023. In view of the detailed findings discussed in above paras of this order, it is erred that the appellant is a paper company which has been used by the Oswal group for routing their own unaccounted funds. The said findings have been made after thorough examination of various adverse findings/ material unearthed during the course of search proceedings u/s 132 of the Act carried out on 22.01.2018. Enough material has been brought on record, which has been unearthed during the course of search proceedings, to show that the transactions done by the appellant are not real. It is ....
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....which could suggest that the documents/transactions claimed or submitted in any earlier proceedings were not genuine, being only a device/make belief based on non-existent facts or suppressed/misrepresented facts, fulfilling the ingredients of undisclosed income, would constitute an 'incriminating material' sufficient to make assessment for the purposes of the Act. Furthermore, mere statement U/s 132(4) is evidence for making an assessment as held by Apex Court in B. Kishore Kumar v. Dy. CIT [2015] 62 taxmann.com 215/234 Taxman 771 and even a statement U/s 132(4) shall also constitute incriminating material to dislodge any earlier finding for the purpose of making an assessment U/s 153A. The aforesaid list is subjective and shall change, in the nature of each case. In the appellant's case, the incriminating finding could be unearthed during the course of search at the premises given in the ITR that the appellant is a paper company. Hence, it is proved that there is an existence of an incriminating finding or evidence allowing the AO to frame assessment with in the purview of section 153A of the Act. in view of these facts, the ratio of the decision of Hon'b....
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....ade under Section 153A of the Income Tax Act, 1961. 2. The undersigned vehemently countered the arguments made by the Counsel of the Assessee concerning Ground No.7 of the appeal. The arguments and decisions relied upon by the counsel of the assessee were mainly to the effect that the incriminating material can only be in the form of a 'document' or 'statement'. 3. The undersigned had placed reliance on the judgment of Hon'ble High Court of Gauhati (High Court of Assam, Nagaland, Mizoram & Arunachal Pradesh) in CIT V. M/s Goldstone Cements Ltd. (ITA No. 10 of 2022); CIT V. M/s Goldstone Cements Ltd. (ITA No. 7 of 2022); CIT V. M/s Goldstone Cements Ltd. (ITA No. 9 of 2022). In particular, Para 9.9 the judgment was highlighted, wherein portion of Hon'ble ITAT defining "incriminating material" has been reproduced as below - "Para 9.9....... it is first relevant to understand as to the meaning of the expression "incriminating material" or evidence. There can be several forms of incriminating material or evidence. In order to constitute an incriminating material or evidence, it is necessary for the AO to establish that the information,....
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.... accounts or all the revenue earning activities are not disclosed to the tax authorities in the books regularly maintained or the returns filed with the authorities from time to time is not true etc. The nature of the evidence or information gathered during the search should be of such nature that it should not merely raise doubt or suspicion but should be of such nature which would prima facie show that the real and true nature of transaction between the parties is something different from the one recorded in the books or documents maintained in ordinary course of business." It may please be noted by this Hon'ble Bench that the above decision was relied upon only for the limited purpose of and to stress upon the scope of 'incriminating material"- and facts of this decision should not be imported to the facts of the present case before this Hon'ble Tribunal. Further, the issue of incriminating material has also been dealt by the Ld. CIT (A) in his order vide Para 8, Pg. 106- 109 wherein it has been held that the 'incriminating material need not be limited to documents; it can also include the absence of previously claimed facts that become apparent....