2023 (11) TMI 1376

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....14. 2. In its appeal, the assessee has raised the following grounds :- "The CIT(A) erred in law and on facts in upholding the action of the AO making the addition of Rs.1,01,35,369/- in the completed assessment, on account of sales proceeds of the listed equity shares resulting into the LTCG declared in the return of income and impugned estimated expenses thereon, where admittedly during the search on the no incriminating material showing the alleged undisclosed income was found and following the judgment dated 24/04/2023 of the Hon'ble Apex Court in PCIT v Abhisar Buildwell Pvt Ltd (2023) 149 taxmann.com 399 (SC), the same must be deleted. 3. The CIT(A) erred in law and on facts in confirming the estimated addition of Rs. 3,04,061....

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...., which were responded to by the assessee. The Assessing Officer ("AO") vide order dated 29/12/2019 passed under section 143(3) read with section 153A of the Act treated the long-term capital gains earned by the assessee out of sale of shares as non-genuine and denied the exemption claimed under section 10(38) of the Act. Further, the AO treated the sale consideration of Rs. 1,01,35,369 as unexplained cash credit under section 68 of the Act. The AO also made the addition under section 69C of the Act @3% on account of commission paid. Accordingly, the AO computed the total income of the assessee at Rs. 1,82,88,566. 5. In its appeal before the learned CIT(A), the assessee specifically raised the ground that since no incriminating material wa....

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.... of the Act. From the perusal of the assessment order passed under section 143(3) read with section 153A of the Act, we find that the AO placed reliance upon the report of Investigation Wing, Kolkata wherein the scrip, i.e. M/s DB International Stock Brokers Ltd was found to be used for providing bogus accommodation entry of long term capital gains and short-term capital loss. Further, the AO referred to the fluctuation in price of the aforesaid scrip. The AO on page no. 20 of the assessment order also placed reliance upon the statement of Shri RK Kedia, i.e. one of the entry operators, recorded on 13/06/2014 during the course of search carried out by the Directorate of Investigation, Kolkata, wherein he admitted to having provided accommod....

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....d to be the material found during the course of the search. The statement of Shri RK Kedia, which has been placed reliance upon by the learned CIT(A) in paragraph 5.4 of the impugned order, was also recorded on 13/06/2014, i.e. much prior to the date of search action in the present case. Therefore, on the basis of material available on record, we are of the considered view that no incriminating material was found during the course of the search in the case of the assessee. We find that the Hon'ble Supreme Court in PCIT v/s Abhisar Buildwell (P.) Ltd., [2023] 149 taxmann.com 399 (SC), observed as under :- "14. In view of the above and for the reasons stated above, it is concluded as under: i) to iii) ........ iv) in case no incrimi....