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2015 (8) TMI 10 - ITAT DELHI

2015 (8) TMI 10 - ITAT DELHI - TMI - Addition u/s. 68 - CIT(A) deleted the addition - validity of proceedings initiated under section 153A - Held that:- The assessee has discharged the initial onus of establishing the bona-fides of the transactions and the AO was not justified in ignoring various evidences produced by the assessee and which were available before him on record of the department itself in reassessment proceedings of North Delhi Projects Pvt Ltd for the A.Y 2004-05 and in assessee’ .....

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as collected during the search/enquiry conducted by him. Therefore, Ld. CIT(A), has rightly deleted the addition made under section 68 of the Act. - Decided against revenue.

Violation of Rule 46A of the Income Tax Rules, 1962 - Held that:- No new evidence was adduced before the Ld. CIT(A). He only took note of the already existing documents in the public domain. i.e. the remand report of the AO in a sister concern’s case of assessee wherein, the AO candidly accepts the identity, credi .....

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ut any additional evidence which has been adduced before the ld. CIT(A) for the first time to invoke Rule 46A. Hence, the contention raised by the Department regarding violation of Rule 46A, has no merits, therefore, we reject the ground - Decided against revenue. - ITA No. 2290/Del/2013,C.O. No.140/Del/2013 - Dated:- 29-5-2015 - Shri N.K.Saini and Shri A. T. Varkey, JJ. For the Petitioner : Sh. Syad Nasin Alli CIT DR For the Respondent : Sh. A.K. Jain, CA ORDER PER BENCH: The appeal filed by th .....

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worthiness and genuineness of the entitles from whom share application received by the assessee remained unverifiable. 2. On the facts and in the circumstances of the case, the CIT(A) has erred, in violation of Rule 46A of the Income Tax Rules, 1962 by not following the decision of Hon ble Delhi High court in the case of Manish Build Well Pvt. Ltd. 204 Taxman 106, wherein it was held by the Hon ble Jurisdictional High court to give two stage opportunity under rule 46A i.e. first before admission .....

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n confirming the proceedings initiated under section 153A of the I.T. Act, which is bad in law in the absence of any incriminating material belonging to the assessee being found during the course of search. 2. That on the facts and circumstances of the case, the CIT(A) has erred both in law and on facts in confirming the validate of impugned assessment order dated 28.2.2013 u/s. 153A of I.T. Act as framed by the AO in respect of closed assessment for which no incriminating material seized during .....

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hat the original return in this case was filed on 15.11.2006 declaring net taxable income ₹ 2,24,430/-. The return was processed u/s. 143(1) of the Act. Subsequently, a search and seizure operation was carried out against the unity group of companies (Unity Group) and individuals on 20.8.2009, and the assessee company was also covered in the said search u/s. 132 of the Act. After the search, proceedings u/s. 153A of the Act were initiated and notice u/s. 153A of the Act dated 25.5.2010 was .....

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of DDA approved commercial complexes. During the year, under consideration the company was executing one commercial project Function Mall which is situated at Prashant Vihar, Rohini, New Delhi. AO has noticed that the assessee company has received share capital / share application money from different entities. He observed that some of the applicants are individuals as well as group companies related to the Unity Group itself and are assessed in the same Circle. The AO himself acknowledges in pa .....

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primarily on the assessee and not on the department. According to him, the assessee has not fully discharged its onus to prove the creditworthiness of the creditors companies. He further observed that merely establishing the identity of the creditor is not enough. In this regard, he placed reliance on various judicial pronouncements and held that the amount introduced by the assessee is under the garb of share application money/ share capital/ share premium and therefore treated it as income of .....

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6. Aggrieved by the order of the Ld. CIT(A), now the Revenue is in appeal and the assessee has preferred a cross-objection before the Tribunal. First of all we will deal with the Revenue s appeal 7. Ld. DR relied upon the order of the AO and reiterated the contention raised in the grounds of appeal raised by the Revenue. 8. On the contrary, Ld. AR of the assessee has relied upon the order of the Ld. CIT(A) and defended that the same and does not want us to interfere in the impugned order. 9. We .....

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d to share capital of the assessee company invoking his powers under section 133(6)/131 to 12 investors. Out of which, the 9 entities responded and AO was satisfied with their identity, creditworthiness and genuineness of the transactions with the assessee by them and there is no dispute with regard to those 9 companies. However, in respect of 3 entities namely M/s Caplin Commercial Pvt. Ltd, M/s Raf Steel Pvt Ltd and M/s Universal Electrique Pvt. Ltd. who had given ₹ 2,00,00,000, ₹ .....

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nity group companies including that of the assessee case, but the same were not considered by the AO. The learned CIT(A) after going through the documents filed by the assessee before the AO and remand report of AO in assessee s sister concerns was pleased to delete the additions. 9.1 We have gone through the paper book filed by the assessee and we take note that the AO made the addition of ₹ 220 lacs u/s. 68 of the Act towards the share subscription money received from three entities i.e. .....

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n based upon ITR of the aforesaid entities filled by the assessee. 9.2 Let us now examine on merits whether the AO s reasons for making the addition u/s 68 of the Act can be justified. The AO alleged that copy of Audited Balance Sheet of the aforesaid entities were not filed by the assessee. We find that the above allegation of the AO is against the material on record. In fact the assessee had furnished the copy of the audited Balance Sheet and Profit & Loss Account and other documents of Ml .....

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td. has also furnished the details directly to AO on 29.11.2011 (PB Page 81) and the receipt of the same acknowledged by the AO on 14.12.2011 (Para 3 of AO, and at Page 28 of CIT(A)) along with a copy of the same to the assessee. 9.3 We take note that during the course of the reassessment, proceedings u/s. 153A, the assessee filed the following documents vide its letters dated 29.12.2011 (Page 89 & 90 of PB) to prove the identity and creditworthiness and genuineness of the transaction in res .....

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rcial Pvt Ltd to the Appellant • Copy of letter dated 29.11.2011 sent by Mls Caplin Commercial Pvt Ltd to the AO in response to notice u/s 133(6):, (PB Page 81) ⦁ Copy of Audited Annual Account for the year ending 31.3.2006 (PB- page 109-128) ⦁ Copy of Audited Annual Account/or the year ending 31.3.2007 (PB- page 109-128) ⦁ Copy of Ledger A/c of Appellant in the Audited books of account maintained by M/s Caplin Commercial Pvt Ltd. (PB - page 108) ⦁ Copy of Bank S .....

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- page 102) ⦁ Detail of Director of M/s Caplin Commercial Pvt Ltd. ⦁ Copy of Affidavit filed by the M/s Caplin Commercial Pvt Ltd. before Asstt Commission of Income Tax. (PB - page 107-108) 9.4 The following documents were filed in respect to M/s Raf Steel Pvt Ltd (PB Page 129 to 138) Share Application Forms Copy of Confirmation Copy of ITR for the A. Y 2005-06 and AY 06-07 Copy of Audited Balance Sheet and P&L A/c for the A. Y. 2006-07. Copy of Photocopy of Cheque received by .....

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and before the learned CIT(A) changed address of the other two legal entities from the Registrar of Companies (ROC) as given under:- Old Address to which AO sent notice u/s. 131/133(6) Present address of the assessee furnished to AO from ROC Documents to prove identity. M/s Caplin Commercial Pvt. Ltd, 863, Marshal House, 33/1 NS Road, Kolkata-700001 M/s Samvijay Power and allied Industries Ltd., 3A, Hare Street, Ashoka House, 5th floor, Room No. 505, Kolkata - 700001.  Certificate of In .....

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at from the aforesaid documents, it is evident that M/s Caplin Commercial Pvt. Ltd. was incorporated with Registrar of Companies, Kolkata on 22.2.1995 having company identification Number (CIN) - U4012WB1995PLC068579. Name of the company has changed from M/s Caplin Commercial Pvt. Ltd. to M/s Samvijay Power and allied Industries Ltd. with same CIN i.e. U4012WB1995PLC068579, Present address of the company is 3A, Hare Street, Ashoka House, 5th floor, Room No. 505, Kolkata - 700001 (PB Page Nos. 91 .....

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e said non-service of notice as well as information/details asked by the A.O. with respect to investment made by them in the share capital of the assessee. We take note that M/s Caplin Commercial Pvt Ltd. had furnished the desired details directly to the AO and filed its reply on 12.12.2011 {P.B. Page No. - 81} alongwith a copy of the same to the assessee. The assessee also furnished the copy of reply of M/s Caplin Commercial Pvt Ltd. to the AO. {Refer P.B.Page 89-90). 9.9 When the two other ent .....

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prove the identity of these companies the assessee had filed the following documents also: (a) Registration with Registrar of Companies, NCT of Delhi and Haryana, New Delhi. (b) PAN Number (c) Audited Annual Accounts. (d) Copy of ITR (e) Confirmation letter 9.9 In order to prove the creditworthiness of these companies the assessee had filed the following documents of M/s Caplin Commercial Pvt. Ltd. The audited balance sheet for the financial year ending on 31.3.2006. A perusal of the Audited Bal .....

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is seen that M/s Caplin Commercial Pvt Ltd. has made the investment of ₹ 200 lac in the share capital of appellant company. Relevant extracts of the aforesaid schedule 'A' of the aforesaid audited balance sheet are reproduced hereunder:- "Caplin Commercial Pvt Ltd. -Detail of Investment for the year ended 31.03.2006 Schedule-A Equity Shares(At Cost) As at 31.03.2006 Qty. Value Qty. As at 31.03.2005 Value Aggarwal Entertainment Pvt. Ltd. (Pending Allotment) ₹ 2,00,00,000 .....

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are holder, the assessee company has filed the Audited balance sheet as on 31/3/2006 of the said company. The Audited balance sheet of the companies for the year ending on 31st March 2006 indicates that the said company has shareholder funds of more than ₹ 151 lakhs, which is sufficient to pay ₹ 10 Lakhs to subscribe the shares of the assessee company. The opinion of the AO that the share subscriber have no creditworthiness or Sufficient money to subscribe in the share capital of the .....

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alance sheet of M/s Raf Steel Pvt Ltd indicated that the said company has shareholder fund of more than ₹ 169 lac, which is sufficient to pay ₹ 10 Lac to subscribe the share Capital of the assessee company. The Audited Balance Sheet of Mls Caplin Commercial Pvt Ltd indicated that the said company has shareholder fund of more than ₹ 156 Crores which is more than sufficient to pay ₹ 200 Lac to subscribe in the shares of the assessee company. Similarly a close look at the Au .....

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s annual general meeting and filed before the Registrar of the companies who has a statutory obligation to examine 'and satisfy himself that the account of the companies are maintained in accordance with the requirements of Companies Act 1956, cannot be lightly discarded by AO as observed by the Hon ble Supreme Court of India in Apollo Tyres Ltd Vs ClT (SC) 174 ITR 521. 9.9 In order to prove the genuineness of the transactions. We take note that the transaction entered by the assessee with s .....

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IT(A) that the addition made by discarding the aforesaid evidence need to be deleted, which the ld. CIT(A) found justified and ordered deletion of the same, which decision is assailed before us by the Revenue. 9.11 In the light of the aforesaid evidences on record let us examine the finding of the Ld. CIT(A). 9.12 We find that the Ld. CIT(A) in order to verify creditworthiness and identity of M/s Caplin Commercial Pvt. Ltd. has took the assistance of the Remand Report which was called by him in .....

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with the said company (i.e. M/s Basant Project, sister concern of the assessee). The Ld. CIT(A) has reproduced the said Remand Report of the AO which is reproduced again for the sake of convenience That the requisite documents has been filed by the Caplin Commercial Pvt. Ltd. & from the examination of the document the identity, creditworthiness and genuineness of transaction with Caplin Commercial P. Ltd. stands established". In the light of the said fact, Ld. CIT(A) vide appellate ord .....

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the Balance Sheet of M/s Caplin Commercial P. Ltd. The Ld. CIT(A) took note of the fact that if in the year under consideration the net worth of M/s Caplin Commercial P. Ltd. is more than ₹ 156 crore (which is mistakenly typed in ld. CIT(A) s order as ₹ 15.5 crores), therefore relying on his own order dated 29.01.2013 for Assessment Year 2006-07 in assessee's group company namely M/s Basant Project Ltd., we find that Ld. CIT(A) allowed the appeal of the assessee and deleted ͅ .....

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nd in para 5.4 (iii) also the AO has stated that M/s Universal Electrique Motors Pvt. Ltd. has also filed confirmations and filed ITR for AY 2005-06 before him. It was noticed by the Ld. CIT(A) that during the search proceedings no incriminating documents/evidences have been unearthed which indicated or pointed to the effect that the shareholders namely these two companies M/s Raf Steel Pvt Ltd and M/s Universal Electrique Motors Pvt Ltd are dummy entities or engaged in accommodation entry busin .....

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ove its creditworthiness and identity and genuineness of the transactions and that were duly accepted by the Department. Similarly in the assessee's own assessment proceedings for the Assessment Year 2005-06 all the corporate shareholders including M/s Raf Steel Pvt Ltd and M/s Universal Electrique Motors Pvt Ltd. have filed the requisite details before the AO in response to notices under section 133(6) in order to prove their creditworthiness and identity and genuineness of the transactions .....

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attendance of these companies directors and Ld. CIT(A) found that nothing has been done on this account by the AO. 9.16 The Ld. CIT(A) has rightly observed that the AO erred in making the addition without taking into consideration the evidences filed in the earlier original proceeding under section 147/143(3) of M/s North Delhi Projects Pvt Ltd for the Assessment Year 2004-05 and assessee s own case for the Assessment Year 2005-06 which were already available with the department; and in the abse .....

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ss, he could have very well sent the notices at the new addresses collected from the banks where the assessee has accounts or in the alternate could have found their existence from Ministry of Corporate Affair's website. 9.17 Ld. CIT(A) further observes that the AO in his reassessment order u/s. 153A has not brought any material on record to show that the confirmation filed by the investor company was not genuine. Ld. CIT(A), rightly notes that just because the notice sent under Section 131, .....

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l the shares have been issued which they have in turn sold later. So in such a scenario, to know the addresses of all the share holders and their last address in case of changes to it is very difficult. Ld. CIT(A) has rightly noted that if due to passage of long time, the assessee company was not having a track of those share subscribers/ persons, or if due to long passage of time the addresses of share applicants have changed, it cannot be a ground for drawing adverse inference against the asse .....

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208]; Attiq-Ur-Rehman v. Municipal Corporation of Delhi [JT 1996 (2) SC 670, 678]; Manohar Joshi v. Nitin Bhaurao Patil [(1996) 1 SCC 169, 179]; Life Insurance Corporation of India v. CIT[(1996) 219 ITR 410, 418 (SC)]. 9.19 Ld. CIT(A) took note of the fact that the assessing officer was aware of the particulars of bank accounts of shareholders from which these companies made the investment and the assessing officer could have verified the same by making inquiries from bank if he wanted to, but h .....

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der dated 2/8/2010 in which it was held as under:- ……. where the assessee has furnished various documentary evidences the assessing officer cannot make the additions merely on the ground that as per the Inspector report nobody existed at the Given address…….. (Quote) "Though in section 68 proceedings, the initial burden of proof lies on the assessee yet once he proves the identity of the creditors / share applicants by either furnishing their PAN number or income .....

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d law that the assessee need not to prove the "source of source" (unquote) 9.21 Ld. CIT(A) has taken note of the judgment of the Apex Court in the case of CIT Vs. Lovely Export 299 ITR 268 (SC) which has confirmed the order of the Delhi High Court. It has been held by the Hon'ble Court that once the identity of the share holders have been established, even if there is a case of bogus share capital, it cannot be added in the hands of the company unless any adverse evidence is not on .....

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d and M/s Universal Electrique Motors Pvt Ltd represents assessee's own undisclosed income. 9.23 Thus, in view of the factual position as well as the judicial pronouncement on the subject, discussed above, Ld. CIT(A) has rightly held that the assessee has discharged the initial onus of establishing the bona-fides of the transactions and the AO was not justified in ignoring various evidences produced by the assessee and which were available before him on record of the department itself in rea .....

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these companies in following assessments:- a) M/s Universal Electrique Motors P. Ltd Creditworthiness/genuineness of investment of ₹ 10,00,000 made by Universal Electrique Motors P. Ltd in another assessee's group company i.e. Unity Project P. Ltd. in Assessment Year 2005-06 and ₹ 3,00,000 in Aggarwal Plaza Pvt Ltd. in Assessment Year 2006-07 and ₹ 16,00,000 in Aggarwal Entertainments P. Ltd. in Assessment Year 2005-06 even in their original assessment proceedings under sec .....

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nder section 143(3). 9.25 In the aforesaid facts and circumstances, the Ld. CIT(A) rightly held that the AO was not justified in treating the amount of share application money received by the assessee company as its undisclosed income because there was no material in the hands of the AO which was collected during the search/enquiry conducted by him. Therefore, Ld. CIT(A), has rightly deleted the addition of ₹ 2,20,00,000 made under section 68 of the Act. 9.26 We take note that in the case .....

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its back with folded hands' till the assessee exhausts all the evidence or material in his possession and then comes forward to merely reject the same on the presumptions. The present case falls in the latter category. Here the Assessing Officer after noting the facts, merely rejected the same. This would be apparent from the observations of the Assessing Officer in the assessment order to the following effect:- ''Investigation made by the Investigation Wing of the department clearly .....

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ned in the notice. The assessee has furnished details of such receipts and the contention of the assessee in respect of the amount is found correct. As such the unexplained amount is to be taken at ₹ 55,50,000/-. The assessee has further tries to explain the source of this amount of ₹ 55,50,000/- by furnishing copies of share application money, balance sheet etc. of the parties mentioned above and asserted that the question of addition in the income of the assessee does not arise. Th .....

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) are being initiated separately. The facts of Nova Promoters and Finlease (P) Ltd. (supra) fall in the former category and that is why this Court decided in favour of the revenue in that case. However, the facts of the present case are clearly distinguishable and fall in the second category and are more in line with facts of Lovely Exports (P) Ltd. (supra). There was a clear lack of inquiry on the part of the Assessing Officer once the assessee had furnished all the material which we have alrea .....

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s. "6. This Court has considered the submissions of the parties. In this case the discussion by the Commissioner of Income Tax (Appeals) would reveal that the assessee has filed documents including certified copies issued by the ROC in relation to the share application affidavits of the directors, form 2 filed with the ROC by such applicants confirmations by the applicant for company's shares, certificates by auditors etc. Unfortunately, the Assessing Officer chose to base himself merel .....

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ade in that regard. In the absence of any such finding that the material disclosed was untrustworthy or lacked credibility the Assessing Officer merely concluded on the basis of enquiry report, which collected certain facts and the statements of Mr.Mahesh Garg that the income sought to be added fell within the description of S.68 of the Income Tax Act 1961. Having regard to the entirety of facts and circumstances, the Court is satisfied that the finding of the Tribunal in this case accords with .....

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the assessee and the alleged hawala operators, such a link was shown to be present in the case of Nova Promoters & Finlease (P) Ltd. (supra) relied upon by the revenue. We are therefore not to be understood to convey that in all cases of share capital added under Section 68, the ratio of Lovely Exports (supra) is attracted, irrespective of the facts, evidence and material." 9.28 In the background of the aforesaid discussions and precedents, we do not find any infirmity in the order of .....

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reditworthiness and genuineness before the Department several times before the said appellate proceeding before him, the Ld. CIT(A) looked into the remand report of the AO which was called by his office during the appellate proceedings in the case of the Assessee s group/ sister company namely Basant Projects Ltd., for the asstt. year 2006-07 which was on record of the department in public domain, in which M/s Caplin Commercial P Ltd. has given ₹ 1.50 crore to M/s Basant Project. In that R .....

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In view of the above, facts we find that no new evidence was adduced before the Ld. CIT(A). He only took note of the already existing documents in the public domain. i.e. the remand report of the AO in a sister concern s case of assessee wherein, the AO candidly accepts the identity, creditworthiness and genuineness of the share holders company (M/s Caplin For AY 2006-07 i.e. in the same assessment year under consideration). Therefore, question of admission of additional evidence does not arise. .....

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efore, we reject the ground no. 2 raised in the appeal. 11. In the result the Revenue s appeal is dismissed. CROSS OBJECTION No. 140/DEL/2013 (AY 2006-07) 12. We find that similar Cross Objection was raised by the Assesee in CO No. 245/Del/2014 (In ITA No. 2288/Del/2013) (A.Y. 2007-08) in the case of Aggarwal Plaza Pvt. Ltd. vs. DCIT wherein similar issues have been raised. We have already dealt with the same at length and we have followed in that case the Coordinate Bench decision of even date .....

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on all the division benches across the country unless there is a contrary judgment of the Hon'ble Supreme Court or that of some High Court. As the ld. DR failed to point out any specific and direct judgment rendered by the Hon'ble High Court on the issue which is obtaining in the present appeal, we are disinclined to deviate from the Special Bench order in the case of All Cargo (supra). We, therefore, hold in principle that no addition can be made for any assessment year u/s I53A, the as .....

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