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2022 (12) TMI 346 - AT - Income TaxAssessment u/s 153A - unsecured loan taken by the assessee - addition u/s 68 treating the unsecured loan as non genuine loan - addition on account of alleged commission paid u/s 69C - Addition basis of the statement of third party - HELD THAT:- AO in remand report observed that there is no incriminating documents found during the course of search has also been accepted by the CIT (A). AO observed that Gemini Commerce Pvt. Ltd. is the shell providing accommodation to various persons and in view of the statement of Arpit Khandenwal recorded u/s 132(4) of the Act the assessee contended that no question was asked regarding the list and advances made by Gemini Commerce Pvt. Ltd. to the assessee and that Arpit Khandenwal in his statement as never stated that Gemini Commerce Pvt. Ltd. is a shell company and providing only accommodation entries to various persons in the case to guise unsecured loans. The statement of Arpit Khandenwal if found correct then no question was asked to Arpit Khandenwal in his statement regarding providing entry to various persons in cash of loans and he never even admitted that Gemini Commerce Pvt. Ltd. is shell company. We are of the opinion that on the basis of the statement of Arpit Khandelwal and Harsh Agrawal the AO has no jurisdiction to make the additions and that in the proceedings u/s 153A of the Act when the assessment was not pending. The Assessing Officer failed to note that merely on the statement without any corroborative evidence to a conclusion that the AO to make the addition which is not sustainable in law. When the Assessing Officer and ld. CIT(A) has accepted that the assessments were completed and books of account were verified, returns were filed, the entire record are persuaded by the AO and the ld. CIT(A) when there is no incriminating material found then the statements recorded during the assessment proceedings has no evidentiary value when it is not supported with corroborative evidences. Assessee has made the submissions which are supported by M/s Mantri Share Brokers (P) Ltd. in 2017 (9) TMI 1668 - RAJASTHAN HIGH COURT Subsequently the SLP filed by the Revenue against the said judgment has been dismissed by the Hon’ble Supreme Court 2018 (7) TMI 200 - SC ORDER Whereas, the ld. DR has supported his submissions by the Hon’ble Supreme Court in the case of Bannalal Jat Constructions (P) Ltd. 2019 (7) TMI 137 - SC ORDER and in jurisdictional High Court decision in the case of Pr.CIT vs. Roshan Lal Sancheti 2018 (11) TMI 953 - RAJASTHAN HIGH COURT We have noted that the facts of the case law relied upon by the ld. DR are on the facts difference with the case of the assessee. The fact remains that the Revenue itself is not disputing that in respect of the unsecured loan taken by the assessee no incriminating documents were found in the search proceedings and the finding of the ld. CIT(A) on this very fact is not challenged before us in any of the grounds raised by the revenue. The requirement that the incriminating material to have the co-relation to the particular addition sought to be made is a logic that will hold good not only for Section 153 C of the Act but in relation to Section 153A of the Act as well. No error having been committed by the ld. CIT(A) in accepting the plea of the Assessee that there is no incriminating document which was seized in the course of search relating to the addition sought to be made on account of the unsecured loan accepted and reflected in the return of income filed by the assessee. Therefore, the jurisdictional requirement of Section 153A of the Act was not satisfied. - Decided in favour of assessee.
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