TaxTMI 
TaxTMI 
TaxTMI 
2025 (7) TMI 1796
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....centering around a common issue and hence for the purposes of convenience were heard together and are being adjudicated by this common order together. As both the parties have concurred that facts of the case for AY-2007-08 and 2008-09 are identical except for changes in figure, we will be considering facts and figures AY-2007-08. The decision arrived at in AY-2007-08 shall apply mutatis mutandis for AY-2008-09 also. 2.0 At the outset, the Ld. Counsel for the assessee, invited our attention to the tax effect in the appeals of Revenue for AY-2007-08 and 2008-09 of Rs. 29,02,508/- and Rs. 45,35,634/- respectively. The Ld.Counsel inviting reference to CBDT circular No.9/2024 dated 17.09.2024 submitted that the impugned appeals are non-maintainable as the tax effect is less than the prescribed limit of Rs. 60 lakhs in the said circular No.9/2024 supra. The Ld. DR countered that the Revenue's appeal have been filed in consonance to sub-clause-h of clause-3.1 of CBDT circular No.5 of 2024 dated 15.03.2024. It was argued that the impugned appeal has been filed in relation to the said sub-clause. In support of its contentions, the Ld. DR invited our attention to affidavit of the Ld.AO fil....
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....assessment years 2007-08 and 2008-09 through two brokers for consideration of Rs 24.01 Crores, inflated purchase expenses of land in its books. During search stamped receipts showing payment of Rs 24.01 Crores were found and seized. Consequently, search proceedings u/s 132 were conducted in case of assessee company along with Group concerns on 21-06-2011. Based on the admission of M/s Om Shakthy Agencies(Madras) Pvt. Ltd., the total consideration for 102.087 acres of land is Rs. 8,33,85,250/-. The Proportionate cost of 15.255 acres of land comes to Rs. 1,23,65,519/-. The assessee company had shown sales of 13.705 acres of land for consideration of Rs. 37,42,500/- . The Ld.AO based on finding that documents seized during course of search in case of M/s Platinum Holdings Pvt Ltd pertain to appellant company has recorded satisfaction u/s 153C on 25-09-2012, issued notice u/s 153C for assessment years 2007-08 and 2008-09. The assessee replied that original return filed on 27.09.2008 for the year may be treated as return filed in response to notice u/s 153C. During course of assessment proceedings for AY-2007-08, the Ld.AO noticed that the assessee company had shown sales of only 13.705....
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.... has argued that the decision is based upon correct understanding of the facts vis-à-vis contemporaneous statutory provisions covering the case. The Ld.Counsel has argued that availability of incriminating seized material concerning the assessee for the impugned years was a prerequisite condition for the Ld.AO to invoke his jurisdiction u/s. 153C. It has been argued that the entire addition has been made upon the material pertaining to some other person. The Ld.Counsel argued that the Ld.AO did not have any jurisdiction to pass order u/s 153C r.w.s. 153A for AY-2007-08 and 2008-09 and that the decision of Ld.CIT(A) to that extent is correct. Assailing the Ld.AO's order the Ld.Counsel placed reliance upon the decision of Hon'ble Delhi ITAT in the case of Atul Kumar Gupta as at 152 taxmann.com 99 holding that assessments on account of third party documents can only be made u/s 153C. The Ld. Counsel further placed reliance upon the decision of this tribunal in assessee's group cases passed in the case of Jayam Infrastructure Pvt Ltd vide ITA No.1061/Chny/2022, Ruby Realty Pvt Ltd 966 & 967/Chny/2022 and Platinum Holding Pvt Ltd 3436/Chny/2018. The Counsel also made reference to....
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....lant company during assessment years 2007-08 and 2008-09 through which lands located at Sirukalathur, Nandambakkam, Pazhathandalam are sold to M/s Om Shakthi Agencies (Madras) Pvt Ltd, hence documents pertain to transaction basing on which addition is made. It is stated that addition is also based on sworn statements Sri M.Sukumar Reddy, Late Sri B.V.Reddy. 7.5 As per provisions of section 153C, the AO gets jurisdiction to issue notice u/s 153C upon satisfaction of two conditions 1. Any books of account or documents, seized pertain to, or any information contained therein, relates to a person other than the person referred to in section 153A 2. Books of account or documents or assets seized or requisitioned have a bearing on the determination of the total income of such other person. In the present case, it is noticed that first condition is satisfied since Sale documents seized vide ANN/AH/B&D/S-1 from business premises of M/s Platinum Holdings Pvt Ltd are sale deeds entered By Appellant company in connection with sale of lands to M/s Om Shakthi Agencies (Madras) Pvt Ltd as per own admission of appellant during assessment proceedings vide its submissions dated 3-03-2014. Therefo....
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....er 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. A mere statement U/s 132(4) is an 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. 7.7 In the present case, Sale documents seized vide ANN/AH/B&D/S-1 from business premises of M/s Platinum Holdings Pvt Ltd alone do not constitute incriminating material unless they are examined in conjunction with 1. Stamped receipts that are found during course of search in M/s Om Shakthi Agencies (Madras) Pvt Ltd and 2. along with sworn statements u/s 131 of two brokers Sri G.Senthil Nathan and Sri Senthamarai Kannan, director of appellant company Sri B.V Reddy recorded on 29-06-2011 and 3-07-2011 during post search in case of Platinum group. But AO omitted to mention above stamped receipts found during search in M/s Om Shakt....
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....ee. The impugned additions are thus based on incriminating material found in another search which has already concluded much before the date of search on the assessee. The search in assessee's case has happened on 21.06.2011. As noted in preceding para 3.1, the assessee had filed its return of income for this year on 27.09.2008 declaring income of Rs. 22.56 Lacs. Notice u/s 153C was issued the assessee on 25.09.2012 against which the assessee offered original return of income as filed on 27.09.2008. It is quite clear that on the date of issuance of notice u/s 153C, no proceedings for this year were pending against the assessee and this was a case of an unabated year. The Hon'ble Supreme Court in the case of DCIT vs. U.K.Paints (Overseas) Ltd.(150 Taxmann.com 108), concurring with the decision in Pr. CIT vs. Abhisar Buildwell (P.) Ltd. (149 Taxmann.com 399), held that since no incriminating material was found in case of any of the assessees either from the assessee or from the third-party and the assessments were u/s 153C of the Act, the High Court has rightly set aside the Assessment Order. In the present case, Ld. AO has relied on information obtained in earlier search on OSAPL on....