TMI Blog2016 (6) TMI 803X X X X Extracts X X X X X X X X Extracts X X X X ..... the proceedings under Section 153A itself has not unearthed the said issue. Thus, the CIT do not have power under Section 263 of the Act to give its own opinion when there is no new material unearthed. The issue taken up by the CIT was not within the purview of the Assessing Officer at the inception of assessment proceedings. - Decided in favour of assessee - I.T.A. No. 1347/DEL/2014 - - - Dated:- 8-6-2016 - Shri G. D. Agrawal, Vice President And Smt. Suchitra Kamble, Judicial Member For the Appellant : Sh. Niren Gupta, CA For the Respondent : Ms. Sulekha Verma, CIT DR ORDER Per Suchitra Kamble, JM This appeal is filed by the assessee against the order dated 17/02/2014 passed by CIT(A)- New Delhi. 2. The ground ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... search u/s 132(1) of the Income Tax Act, 1961 was conducted on 10/2/2010 as part of Jaksons Generator Group of cases. During the search, undisclosed income of ₹ 19.94 crore was found which was surrendered by Shri S. K. Gupta. Assessment Proceedings in the case were initiated by issuing notice u/s. 153A dated 12.11.2010 which was duly served on the assessee. In response to notice u/s. 153A return declaring income of ₹ 6,09,677 was filed on 9.2.2011. During the year under consideration the assessee was a director in the Company Jackson Generators (P) Ltd. The company is engaged in the manufacture and sale of Gen Sets. He is also partner in the firm M/s. Jackson Co. having 33% shares in the Profit Loss a/c. The firm is engaged ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ejudicial to the interest of revenue being the Assessing Officer has made omission of ignoring the provisions of deemed dividend amounting to ₹ 1,72,15824/-. 5. Accordingly, notice u/s 263 of the I.T. Act, 1961 was issued to the assessee on 5/8/2013 apprising him of the issue relating to the transaction of loan/advance received by M/s Jakson Co. of ₹ 1,72,15,824/- from M/s Jakson Generator Pvt. Ltd which is to be taxed as deemed dividend u/s 2(22) (e) of the I.T Act as the loan granted by M/s Jakson Generator Pvt. Ltd to M/s Jakson Co. was treated as advancement of loan by a company in which the substantial shareholding i.e. Shri Mahesh Kumar Gupta holds 43.19% shares in M/s Jakson Generator Pvt. Ltd and also controls M/s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bmitted that the CIT was wrong to direct the examination of taxability of the deemed dividend in the proceedings u/s 153A of the Act. Thus, wrongly widen the scope of Section 153A of the Act as it was not a material found on the basis of search. The Ld. AR relied upon the order of ITAT New Delhi in case of Shri Kabul Chawla Vs. ACIT (ITA No. 779/DEL/2013 dated 23.05.2014, New Delhi). 11. The Ld. DR submitted that CIT under Section 263 of the Act has properly invoked his powers. The Ld. DR relied upon the order of ITAT New Delhi in case of Shri Kabul Chawla Vs. ACIT (ITA No. 779/DEL/2013 dated 23.05.2014, New Delhi) as well as the Hon ble Delhi High Court decision in case of CIT Vs. Ankitech Pvt. Ltd. 340 ITR 14. The said case laws dealt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be only one assessment order in respect of each of the six AYs in which both the disclosed and the undisclosed income would be brought to tax . iv. Although Section 153A does not say that additions should be strictly made on the basis of evidence found in the course of the search, or other post search material or information available with the AO which can be related to the evidence found, it does not mean that the assessment can be arbitrary or made without any relevance or nexus with the seized material. Obviously an assessment has to be made under this Section only on the basis of seized material. v. In the absence of any incriminating material, the completed assessment can be reiterated and the abated assessment or reass ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erated and the abated assessment or reassessment can be made . In clause (vii), it is stated Completed assessments can be interfered with by the AO while making the assessment under Section 153A only on the basis of some incriminating material, the completed assessment can be reiterated and the abated assessment or reassessment can be reiterated and the abated assessment or reassessment can be made . In clause (vii), it is stated Completed assessments can be interfered with by the AO while making the assessment under Section 153A only on the basis of some incriminating material unearthed during the course of search . Thus, in present case the issue of deemed dividend does not arise from the provisions of Section 153A of the Act and the ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
