TaxTMI 
TaxTMI 
2025 (2) TMI 1737
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.... of order 24/12/2018 for A.Ys. 2012-13 & 2013-14, 31/01/2019 for A.Y. 2011-12, 29/01/2019 for A.Y. 2012-13 and dated 23/03/2019 for A.Y. 2010-11. The impugned orders were emanated from the orders of the Learned Deputy Commissioner of Income-tax, Central Circle 7(3), Mumbai (in short the "Ld. AO"), order passed under section 153A read with section 143(3) of the Act, date of order 23/12/2016 for A.Y. 2012-13, 19/12/2016 for A.Y 2011-12, 2012-13& 2013-14 and 30/12/2016 for A.Y. 2010-11. 2. All the appeals have same nature of facts and common issue. Therefore, all the appeals of the revenue and the cross objections of the assessee are taken together, heard together and are disposed of by this common order. ITA No.1484/Mum/2019&CO No.43/Mum/2021 are taken as lead case. The ground taken by the revenue and the assessee in its cross objection are as follows:- No.1484/Mum/2019 (revenue) "1. On the fact and circumstances of the case and in law, the Ld. CIT(A) erred in deleting the addition us. 68 of Rs. 17,60,50,000/- with respect to the unsecured loans received by it, without appreciating that the retraction of statement is only an afterthought, and the AO was correct in the ....
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....s Engicon Pvt Ltd 2012-13 153A r.w.s. 143(3) 28/09/2012 30/09/2013 09/10/2014 5 Lotus Buildspace LLP 2013-14 153A r.w.s. 143(3) 28/09/2013 30/09/2014 09/10/2014 4. During the argument, the issue was challenged related to the legal ground which was filed by the assessee through cross objection. The assessee agitated that all the alleged assessment years are under category of the unabated assessment or completed assessment. The alleged assessment under section 153A read with section 143(3) of the Act is unjustified and beyond jurisdiction as there is no incriminating material found during the course of search in unabated assessment year and the assessment was completed without any incriminating material which is contrary to the ruling of the Hon'ble Supreme Court in the case of Abhisar Buildwell Pvt Ltd (2023) 149 taxmann.com 399 (SC) which categorically held that no addition can be made by the Assessing Officer in respect of completed or unabated assessments unless incriminating material is found during a search conducted under section 132 of the Act or a requisition under section 132A of the Act. Related to the merit of the case, the Ld.CIT....
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....n evidence brought by the assessee or by bringing new evidence that indicate the transactions undertaken by the assessee are non-genuine. Thus, the section deals with an equilibrium of onus of proof and must be viewed to evaluate as to whether the evidences brought by the assessee or AO weigh more and accordingly in whose favour the equilibrium bends. In the present case, on one hand, the assessee has placed evidence in the form of voluminous documents in relation to RBI compliances, ROC compliances, audit compliances and merger sanctioned by the Hon'ble Calcutta High Court. Further, the assessee has also placed on record the assessment orders of 6 merged companies for the A.Y 2010-11 and also that of the alleged investor - M/s. Satyam Projects Ltd for A.Y. 2010-11. I have also gone through the confirmation, ITR Acknowledgement, financial statements of the investor company and bank statements relating to the alleged transaction of partner's contribution received of Rs. 17,60,50,000/- by the assessee during the year under consideration. It is observed that the investor company is formed in 1981 and is registered NBFC since 1998 and is engaged into the business of finance and investm....
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....tion of the act. However, it may be appreciated that such incriminating material or evidence could be any books of accounts or document or information discovered during the course of search action having bearing on the determination of total income of person. Clearly, such incriminating material has to be either the books of accounts or document seized or requisition or any information gathered during the course of search action or in the form of statement recorded during the course of search action and it has a potential of affecting the determination of total income of the person. During the search proceedings, Incriminating evidences/information was unearthed wherein various Kolkata based companies, paper companies, are in the business of providing accommodation entries. During the search proceedings, Incriminating evidences and information were unearthed, revealing the involvement of paper companies in dubious transactions. Statement from various operators and Directors were recorded and a detailed post search analysis of financial trails indicated that transactions were made with various Jamakharchi entities. The Assessing Officer noted that while statements recorded ....
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....n 153A to reopen concluded assessments for years preceding the year of search was unjustified in the absence of incriminating material found during the search. The Hon'ble Supreme Court dismissed the Revenue's SLP in PCIT vs. Meeta Gutgutia *(2018) 96 taxmann.com 468 (SC)]. ii. Jurisdictional High Court in CIT vs. Gurinder Singh Bawa, (2017) 79 taxmann.com 398 (Bom): The court held that where no incriminating material was found during a search, proceedings under section 153A were without jurisdiction. iii. Jurisdictional High Court in CIT vs. Deepak Kumar Agarwal, (2017) 86 taxmann.com 3 (Bom): It was held that an assessment under section 153A could only be made based on incriminating material found during a search. iv. Jurisdictional High Court in CIT vs. Continental Warehousing Corporation (Nhava Sheva) Ltd, (2015) 58 taxmann.com 78 (Bom): The court ruled that in the absence of incriminating material, no additions could be made in respect of finalized assessments. The department accepted this proposition, as the Supreme Court's SLP in CIT vs. Continental Warehousing Corporation, [(2018) 93 taxmann.com 31 (SC)] did not raise this issue. 8. Abh....